Use of the Fifth Amendment Privilege in a Civil Case

September 26, 2011

According to a 2006 survey, while almost 25% of Americans cannot name a single right guaranteed by the First Amendment, 38% erroneously believe that the right against self-incrimination is one of them.[1] Thanks in part to television crime shows, a third of all Americans at least understand that they have the right to remain silent, even if they don’t know exactly where that right can be found in the Constitution.

Of course, a witness’s right not to self-incriminate is found in the Fifth Amendment. (Article I, Section 10 of the Texas Constitution contains a similar provision as well.)  This Constitutional right includes a defendant’s right to: (1) remain silent, (2) not be called as a witness for the prosecution, and (3) not have the fact that he exercised his right against self-incrimination used against him. This principle is well-established in the criminal context where juries are instructed that the defendant cannot be compelled to testify, and that if he exercises his right not to testify, the jury cannot use this as any evidence of guilt whatsoever.

In civil cases, however, the juries receive no such instruction.  First of all, any party or witness in a civil case may be called to testify, whether they are facing criminal charges or not.  Second, witnesses in civil actions do not enjoy an unfettered right to refuse to answer questions on Fifth Amendment grounds. Finally, in a civil case it is perfectly permissible for a judge or jury to infer that a witness is guilty of wrongdoing if they invoke the Fifth Amendment privilege against self-incrimination in response to a question. (Of course, civil juries can’t send witnesses to jail for invoking the Fifth Amendment; they can only find them civilly liable.)

The Right to Refuse to Answer:

Just because a witness can been called to testify in a civil case doesn’t mean that the witness must answer every question posed.  Witnesses still enjoy their federal and state Constitutional rights against self-incrimination, even though they are not testifying in a criminal proceeding. If a question calls for an answer that might cause the witness to self-incriminate, then the witness may invoke the Fifth Amendment privilege against answering that question. Even in the civil context, this right against self-incrimination is an important one, because if a witness fails to invoke the Fifth Amendment and thereafter provides an incriminating answer, that answer can be used against the witness in a subsequent criminal case.

Unlike criminal cases, however, when a witness in a civil case invokes the protections of the Fifth Amendment, the inquiry does not simply stop there. It is well-settled law in Texas that when a witness in a civil case invokes the Fifth Amendment, the assertion of this privilege is subject to scrutiny by the judge, who will determine whether the refusal to answer is made in good faith and is justifiable under the circumstances.  Such an inquiry is a delicate undertaking, because the witness cannot be compelled to disclose the very information that the privilege protects, but in order to uphold the privilege, it must be shown that answering the question is “likely to be hazardous” to the witness.

As the Texas Supreme Court pointed out in Ex Parte Butler, the witness must be in potential jeopardy of prosecution under criminal law. 522 S.W.2d 196 (Texas 1975). For example, the threat of civil penalties and forfeitures – even if considerable in scope and amount – will not give rise to Fifth Amendment protections, since the conduct does not subject a witness to criminal prosecution. Likewise, for example, a witness may be compelled to testify as to the facts surrounding his committing insurance fraud (a crime), if it occurred more than five years earlier and hence beyond the criminal statute of limitations. (In that situation, further inquiry might be required to determine any applicable tolling provisions before the testimony is compelled.)  If after careful inquiry and consideration of all the circumstances of the case, the judge is perfectly clear that the witness is mistaken and that the answer cannot possibly have a tendency to incriminate, then the judge can compel the witness to answer the question.  Failure to answer at that point will subject the witness to possible contempt of court, which, ironically enough, may involve assessment of jail time.

It is also important to note that judicial scrutiny of the legitimacy of the Fifth Amendment invocation does not occur automatically. A court is not required to perform this inquiry sua sponte – opposing counsel must seek the trial court’s intervention through a motion to compel or other procedural tool. If counsel fails to raise this issue and provide the trial court with the opportunity to consider the issue, then any complaint as to improper use of the privilege is waived on appeal.

The Evidentiary Value of Invoking the Fifth:

Once it has been established that the witness has a right to refuse to answer a question, what happens next?  Simply stated, the judge or jury can infer that a witness committed the very crime that he was protected from testifying about.[2] But infer is all they can do. Invoking the Fifth Amendment does not give rise to a presumption of culpable conduct nor is it, standing alone, sufficient evidence to prove wrongdoing. Courts have routinely held that a Fifth Amendment claim of privilege will not substitute for other relevant evidence, pointing to the language of the U.S. Supreme Court case which first recognized the negative inference concept, that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” 

The failure to offer probative evidence in addition to the assertion of the Fifth Amendment privilege leaves the fact-finder with only an inference, and because an inference is considered nothing more than a mere suspicion, the inference in and of itself does not constitute more than a scintilla of evidence. Therefore, without more evidence, the negative inference which is permitted in these circumstances will not support a finding of fact or raise a fact issue which precludes summary judgment.

Consequently, while the negative inference associated with a Fifth Amendment claim of privilege is an important tool in a civil attorney’s arsenal, it is important that other evidence be discovered and presented both in summary judgment proceedings and at trial. When faced with a no-evidence challenge, either by motion for summary judgment or directed verdict, it will be important that the record contain additional probative evidence of the culpable conduct. Reliance on the inference of guilt alone simply will not overcome the evidentiary hurdle.

One might ask if the very person, perhaps the only person, who can testify as to essential evidentiary facts refuses to testify, how then can a party obtain probative evidence sufficient to defeat a no-evidence challenge?  In a recent appeal involving a hit-and-run fatality, an attorney raised this very point, arguing that public policy and the interests of justice are not served by allowing a wrongdoer to conceal all evidence, frustrate the discovery process, and evade civil liability through use of the Fifth Amendment. Unfortunately, because the attorney failed to raise these public policy arguments before the trial court, the issue was deemed waived and not considered on appeal.  Webb v. Maldonado, 331 S.W.3d 879 (Tex. App. — Dallas 2011).

The bottom line is that in a civil case, the invoking of the Fifth Amendment is powerful evidence – juries instinctively understand that in order for a person to claim the right not to self-incriminate, there must have been incriminating conduct to begin with. When instructed by the court that they may consider this as evidence of guilt, most juries do not hesitate to do so.  So, while the Fifth Amendment claim may be used as the nail in the coffin of your opponent’s case, there will be no burial without something more.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

(For more information about the use of the Fifth Amendment privilege and Miranda warnings regarding its use in the criminal context, see http://blog.amjudges.org/?p=110.)


[1] The First Amendment recites five basic freedoms – freedom of speech, freedom of the press, freedom of religion, freedom to assemble and freedom to petition for redress from the government.

[2] This inference is recognized in both federal and state case law as well as Rule 513(c) of the Texas Rules of Evidence.


Proof of Jury Misconduct During Deliberations

September 20, 2011

Texas jury verdicts are a lot like Las Vegas. Even the law recognizes that what happens in the jury room needs to stay in the jury room. 

With one exception (the “outside influence” exception), Texas Rules of Evidence 606 expressly prohibits jurors from testifying, either live or by affidavit, as to any matters that occurred during deliberations. In practical terms, this rule means that after the last argument is made and the door closes behind the twelfth juror entering the jury room, most anything that jurors say or do from that point until the verdict is returned to the courtroom is protected from disclosure. Whether jurors speculated as to liability insurance, tossed coins, drew straws, or conducted themselves in any other manner prohibited by law during deliberations, the only eye-witnesses who could testify about it are expressly prohibited from doing so.

Though two decades old, Daniels v. Melton Truck Lines, Inc. perhaps still provides the best example of the incredible reach of this rule. In that case, the trial court struck a motion for new trial’s supporting affidavits which outlined the following jury misconduct: 

(Juror Hamilton) kept repeating that she was a police officer…and her duties included patrolling, investigating … and issuing tickets…  She left the distinct impression that if we did not answer the questions as she thought they should be answered, that we would see her later and could suffer the consequences…  (S)he was angry and shouted down those who disagreed with her… She never directly threatened anyone but … indicated those disagreeing with her could see her later in the patrol car…  It is my opinion that the emphasis on her right to make arrests… had an influence on some of the jurors changing and siding with her…

Five other jurors came forward with similar testimony regarding Hamilton’s conduct during deliberations.  Nevertheless, the Court of Appeals agreed that the testimony fell squarely within the prohibition of Rule 606 and the trial court did not err in disregarding it.  704 S.W.2d 142 (Tex. App. — Eastland 1986), explaining:

Rule 606(b) bars testimony by any juror as to all matters or statements occurring during the course of their deliberations, except for testimony that “any outside influence was improperly brought to bear upon any juror.” As we read this rule, the statements by Juror Hamilton do not come within the exception and, consequently, proof of her statements and their effect is barred by the rule.

The Texas Supreme Court has upheld strict application of the rule, enunciating four public policy reasons which justify the prohibition against a losing party “putting the jury on trial.” Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000). They are: 

  1. The need for jurors to be able to candidly discuss the evidence and issues without fear that their deliberations will be held up to public scrutiny; 
  2. The need to protect jurors from post-trial harassment or tampering;
  3. The need to protect proper verdicts from disgruntled jurors who might seek an avenue of vindication by attempting to overturn them, and
  4. The need for finality to promote public confidence in judgments.   

Given the huge evidentiary hurdle, what is an attorney to do when faced with allegations of jury misconduct which occurred during the deliberative phase of trial? 

  • Look to the exception in the rule:  Jurors are permitted to testify whether “any outside influence was improperly brought to bear upon any juror.”  (Note that this exception will also permit one juror to speculate as to influences on other jurors, not just on themselves.)  Although the Texas Supreme Court has never defined what kind of “outside influence” a juror may testify about, they have indicated that they consider an outside influence as something that must “originate from sources other than the jurors themselves.”  24 S.W.3d at 370.
  • Consider the obvious:  Judges, bailiffs and any other member of the court staff who have access and contact with members of the jury can be “outside influences” for the purpose of this rule.
  • Know what “deliberation” is (and isn’t):  While older cases defined deliberation as “any conversation regarding the case occurring between or among jurors … regardless of the time and place where it occurs,” the Supreme Court has expressly refused to accept such a broad definition.  Informal discussions among jurors during breaks are not part of deliberations, the Court has held, especially since jurors are specifically admonished not to engage in informal discussions.  In many charges, the jury is instructed only to deliberate “in the jury room when all members of the jury are present.”  If an attorney learns of misconduct which occurred in the jury room, a further inquiry as to how many jurors were present at the time could prove fruitful.  If jurors were missing from the room when the misconduct occurred, then the jury should not have been “deliberating” under the instructions of the judge.  Perhaps, then, the misconduct didn’t occur during “deliberations,” rendering Rule 606 inapplicable.
  • Look for other sources of evidence:  Sometimes competent evidence of juror misconduct can be proved using sources other than the jurors themselves.  Mayo v. State, 708 S.W.2d 854 (Tex. Crim. App. 1986) (testimony from a witness contacted by a juror).
  • Whatever you do, though, act quickly:  Assuming the evidentiary hurdles can be overcome, time is of the essence.  Complaints of jury misconduct must be raised by motion for new trial, giving an attorney a narrow window of opportunity to preserve error.  Thirty days after the judgment is signed, any right to raise a complaint of jury misconduct on appeal is lost. 

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


The Running Objection

September 6, 2011

When a trial court commits error in admitting evidence, it’s a lot like the proverbial tree falling in the woods.  If no objection is lodged, it’s as if no one was in the woods to hear the sound.

Texas Rule of Appellate Procedure 33.1(a) requires that in order to preserve error for appellate review, a party must make a timely, specific objection and obtain a ruling on that objection. A corollary is that even if error is preserved by timely objection and ruling, prior or subsequent presentation of essentially the same evidence without objection will cure the error.  Consequently, all good trial lawyers understand the need to object each time objectionable evidence is offered or risk forfeiture of complaint on appeal.

Compare these rules with yet another which has also been generally accepted in the law:  When a party makes a proper objection to the introduction of certain testimony and is overruled, it may be assumed that the judge will make the same ruling as to other offers of similar evidence, and the attorney is not required to repeat the objection.  Sauceda v Kerlin, 164 S.W.3d 892, 920 (Tex App.–Corpus Christi, 2005) (reversed on other grounds in Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008).

How can these seemingly contradictory rules be reconciled?  It may depend on whether the case is being tried to the court or to a jury.  In some cases involving bench trials, appellate courts seem to dispense with the requirement for ongoing objections on a subject once the court has ruled.  Crispi v. Emmott, 337 S.W.2d 314 (Tex. Civ. App. — Houston 1960); Bunnett/Smallwood & Co. v. Helton Oil, 577 S.W.2d 291 (Tex. Civ. App. — Amarillo 1979).  However, in most cases, particularly those involving jury trials, the only way for error to remain preserved – short of continuous and repetitive objections – is to obtain a running objection.

The running objection is a procedural device which permits an attorney to lodge one objection which applies to all testimony relating to a particular line of questioning.  Unfortunately, because the running objection is a creature of common law, there is no specific rule to guide attorneys in the proper procedure for invoking its use.  Traditionally, however, attorneys will request a running objection after one or two objections on a similar subject matter have been lodged and overruled. 

A running objection which has been properly requested will satisfy the TRAP 33.1(a) requirements for preservation of error on appeal.  Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-691 (Tex. App. — Waco, 2000).  However, the protection afforded by a running objection is limited.  Care should be taken in articulating the running objection, as it will be effective only as to questions which fall squarely within its stated scope.  It should be specific and unambiguous, City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App. — Fort Worth 1988), and should also clearly identify the source and specific subject matter of the expected objectionable evidence.  Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004). 

Some courts have held that the scope of a running objection is limited to similar evidence elicited from the same witness.  Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-691 (Tex. App. — Waco, 2000).  Others allow a broader application, extending it to all testimony pertaining to the same type of evidence, as long as the running objection has been “properly framed” to embrace testimony elicited from other witnesses.  Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194 (Tex. App. — Texarkana 2000). 

The most recent Texas Supreme Court case which addresses the use and limitations of a running objection is the 2004 decision in Volkswagen, 159 S.W.3d 897.  In that case, Volkswagen requested a running objection to the introduction of a television news report interview of an unidentified witness to the collision at issue.  Before trial, Volkswagen lodged a hearsay objection to “showing that videotape and… to any reference to any alleged witness and… any reference to…what he may or may not have seen out there.”  The trial court overruled the objection, but granted a running objection.  Thereafter, the jury viewed a videotape of not only the witness interview, but also of the news reporter’s additional commentary regarding her conversation with the witness. 

The Supreme Court held that Volkswagen’s initial objection to the evidence complied with TRAP 33.1(a) and its requested running objection clearly identified the source and specific subject matter of the expected objectionable evidence. By “plainly identi(fying) the source of the objectionable testimony, the subject matter of the witness’s testimony and the ways the testimony would be brought before the jury,” Volkswagen, through its running objection, “preserved the complaint not only to the unidentified witness’s testimony but also to the reporter’s testimony concerning what the witness said.” Id.at 907.

Three notes of caution:  

  1. Even after a running objection has been granted, an attorney should remain vigilant as to the questions asked and answers given.  If subsequent testimony is objectionable on grounds which weren’t included in the original running objection, then the new grounds for objection must be asserted in a timely manner or they will be waived.
  2. Make sure you receive a ruling on your request for a running objection, or you may waive that, too.  Diversified Energy Products, Inc. v. Texas Development Co., 1999 WL 93265 (Tex.App.-Hous. (14 Dist.) Feb 25, 1999) (not designated for publication); City of Fort Worth, at 113.
  3. When in doubt, re-urge the objection and the request for a running objection. (It can’t hurt.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


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