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ETHICS SPOTLIGHT National Legal Research Group, Charlottesville, Virginia THE CONSEQUENCES OF ADVISING A CLIENT TO PLEAD THE FIFTH AMENDMENT IN A DIVORCE CASE WITH REGARDS TO ADULTERY Laura W. Morgan, Executive Editor, Divorce Litigation The United States Constitution, by the Fifth Amendment, and all state constitutions, provide that no person can be compelled to give evidence against himself, i.e., evidence that would subject himself to criminal prosecution. The purpose of the privilege is to protect a witness from being forced to give testimony leading to the infliction of penalties affixed to the criminal acts upon himself. This privilege attaches to a witness not only in a criminal proceedings wherein the witness is the defendant, but also attaches to any witness in any judicial proceeding, either civil or criminal. Lefkowitz v. Cunningham, 431 U.S. 810 (1977). In a civil action, in order to invoke the privilege against self-incrimination, the witness must be faced with a risk of incarceration that is substantial and real, and not merely trifling or imaginary. Hoffman v. U.S., 341 U.S. 479 (1951); Zicarelli v. Investigation Commission, 406 U.S. 472 (1972); U.S. v. Whittington, 786 F.2d 644 (5th Cir.), cert. denied 107 S. Ct. 269 (1986); see Note, Use of the Privilege Against Self-Incrimination in Civil Litigation, 52 Va. L. Rev. 322 (1966). Quite often, parties or witnesses to a divorce action are asked whether they have ever committed adultery. The parties or witnesses will then invoke the privilege against self-incrimination. Counsel for the propounding party thus needs to inquire whether the invocation of the privilege is proper under the circumstances. Assuming that the invocation of the privilege is proper, a court is free to impose a variety of sanctions against that spouse, including the denial of affirmative relief. E.g., Anonymous v. Anonymous, 353 So. 2d 510 (Ala. 1977) (as result of wife's claim against self-incrimination, court was free to make any and all inferences against regarding substance of questions propounded); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (after wife claimed privilege, court was free to dismiss her claim); Harwell v. Harwell, 355 S.W.2d 137 (Mo. Ct. App. 1961) (court free to make any inferences against party claiming privilege); Levin v. Bornstein, 13 Misc. 2d 161, 174 N.Y.S.2d 574 (Sup. Ct. 1958), aff'd 7 A.D.2d 995, 183 N.Y.S.2d 868, aff'd 6 N.Y.2d 892, 190 N.Y.S.2d 702 (1959) (court free to impose sanctions on party who invokes fifth amendment privilege); Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987) (moving party in civil action who exercises privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion); Donaldson v. Donaldson, 27 Va. Cir. 327 (Fairfax County 1992) (court free to impose non-criminal sanctions on the husband who invoked his Fifth Amendment privilege against self-incrimination); Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970) (it was error for court not to take an adverse inference against wife who claimed privilege). See generally Annotation, Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question, 4 A.L.R.3d 545 (1965); Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation, 39 Brooklyn L. Rev. 121 (1972); Madsen, Penalizing the Civil Litigant Who Invokes the Privilege Against Self-Incrimination, 24 U. Fla. L. Rev. 541 (1972). The rationale for this rule was explained recently in Dodson v. Dodson, 855 S.W.2d 383 (Mo. Ct. App. 1993). In that case, the court stated: Although a party has the right to take the Fifth Amendment against self-incrimination in a civil case, the right is not without its price. Where a party takes the Fifth Amendment in a dissolution action and thereby conceals pertinent information, the party is not entitled to affirmative relief when timely objection is made. Furthermore, whether asserted by the petitioner or the respondent, invocation of the Fifth Amendment privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence. In this regard, the court is vested with discretion in fashioning an appropriate remedy to prevent unfairness and disadvantage from the concealment of pertinent information. Dodson v. Dodson, 855 S.W.2d 383, 385 (Mo. Ct. App. 1993). Accord Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225, 227 (1974) (in civil proceedings the courts have, in the interests of truth and justice, displayed understandable readiness to impose noncriminal sanctions for refusal to submit to pretrial discovery on the basis of the privilege; thus, where the plaintiff in a civil action refuses to testify in pretrial discovery on the grounds of self-incrimination, it is generally held that he may be subjected to some lesser noncriminal sanctions); Hackes v. Hackes, 446 A.2d 396, 399 (D.C. 1982) (when a civil litigant invokes the fifth amendment to prevent discovery, he is subject to noncriminal sanctions; the imposition of sanctions should strike the proper balance between the public and private interests in broad discovery, while preserving the purpose of the privilege; striking a pleading should be the last resort). As an alternative, an adverse inferences may be taken from the failure to answer on fifth amendment grounds. If a witness's claim of privilege is upheld by a court, the fifth amendment does not forbid adverse inferences against parties to civil actions when a witness refused to testify. 81 Am. Jur. 2d Witnesses § 121 (1992); Annotation, Inferences Arising from Refusal of Witness Other than Accused to Answer Questions on the Ground that the Answer Would Tend to Incriminate Him, 24 A.L.R.2d 895 (1952). See Brewer v. Brewer, 249 Ga. 517, 291 S.E.2d 696 (1982) (wife's paramour claimed fifth amendment privilege in a deposition; husband should then have been allowed to call witness to testify, so that jury could draw adverse inference from failure to testify at trial); see also Annotation, Privilege - Pretrial Assertion - As Bar, 36 A.L.R.3d 1367 (1971). The adverse inference opposing counsel will wish the court to draw is that the adultery did in fact take place. This inference is permissible. See Poplar Grove Planting and Refining Co., Inc. v. Bache Halsey Stuart Inc., 465 F. Supp. 585 (D. La. 1979) (where witness refused to testify on fifth amendment grounds, court may infer that witness is responsible for acts complained of); In re Todd, 47 B.R. 18 (Bkrtcy. Miss. 1984) (when party refuses to testify in civil proceeding, it is proper to draw adverse inference from failure to offer information); In re Estate of Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991) (factfinder in civil action may use witness's invocation of fifth amendment privilege to infer that his truthful testimony would be unfavorable). In sum, so long as the statute of limitations on adultery, fornication, or other marital misconduct crime has not run, and the local prosecutor is unwilling to grant transactional immunity, then a claim against self-incrimination will be upheld. In that event, opposing counsel should argue for sanctions and inferences against the party invoking the privilege. Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690 © 1998 National Legal Research Group and LawTek Media Group, LLC all rights reserved No information or materials posted here are intended to constitute legal advice, nor can we guarantee the accuracy of posted information, especially as to each individual situation. LawTek does not independently check the information contained herein and does not refer or endorse any product, service, or firm. This site does not constitute an attorney-client relationship; local counsel should always be consulted. 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