Day on Torts
Defendant asserted his Fifth Amendment privilege against self-incrimination throughout the discovery phase of a civil trial. During the fourth week of trial he attempted to waive the privilege and give substantive testimony.
The Wisconsin Court of Appeals upheld the decision of the trial judge to prohibit the the witness from withdrawing his assertion of the privilege. The Court explained as follows:
Invoking the privilege during discovery only to later withdraw the privilege may give the invoking party a decided advantage in that he or she can delay having to answer questions until after having had the opportunity to watch the adverse party’s case develop. It allows the invoking party to conceal information and then tailor the invoker’s own version of the events to meet the opposition’s theory of the case and the evidence garnered in support of it.
The Court went on to explain that a late waiver of the privilege does not automatically bar testimony.
The proper sanction and accommodation ultimately depends on the particular facts of a case. The trial court may decide that a complete bar to testimony is unnecessary. See, e.g., F.T.C. v. Kitco of Nev., Inc., 612 F. Supp. 1282, 1291 (D. Minn. 1985) (allowing the defendant to testify even though he had previously invoked his Fifth Amendment privilege during discovery because the plaintiff was not unfairly surprised); see also Certain Real Prop., 55 F.3d at 84 n.6 (listing different potential sanctions). If the late withdrawal does not in fact unduly prejudice the adversary, and if there is nothing to suggest the attempted withdrawal was used abusively or to gain an unfair tactical advantage, then the court should be especially inclined to permit the withdrawal. Certain Real Prop., 55 F.3d at 84. However, as long as a trial court considers the relevant factors and acts with moderation to accommodate both a litigant’s valid Fifth Amendment interests and the opposing parties’ needs in having the litigation conducted fairly, Certain Real Property stated that it would not disturb the measures used by that court in the exercise of its discretion. Id. at 83 n.4, 85.
This is a very common-sense view of how this situation should be handled. Read the entire opinion in S.C. Johnson and Son, Inc. v. Morris, Appeal No. 2008AP1647 (Wis. Ct. App. Div. II Dec. 2, 2009) here. The relevant paragraphs are numbers 7 – 22.