How to handle a civil deposition while criminal charges are contemplated

Filed under: Criminal Law, Litigation by Contributor @ July 8, 2012

In civil cases that involve the potential for related criminal charges, it is important to advise the client to proceed with caution so as to not incriminate himself in the subsequent criminal proceeding. To do this, it is often best to advise the client to plead the 5th Amendment against self-incrimination to questions that might incriminate the client in the criminal matter. A client may assert the 5th Amendment even if no criminal charges have been filed yet, so long as there is a likelihood that the basis for criminal charges would be provided during the deposition.

It is generally advisable to ask the Court for a stay of the civil proceedings so the client is not forced to choose between defending himself in the civil case or revealing inculpatory information pertaining to the criminal case. The Court is not likely to grant the motion to stay the civil case if there is not currently a criminal proceeding pending. When this occurs the defendant normally will be forced to appear at the deposition but can assert the 5th amendment privilege in response to each question that might incriminate him (in practice this frequently ends up being any question beyond name, address, and other identifying information). The Court can then issue sanctions against the Defendant, such as precluding later responses, but such an Order must be specific and cannot constitute a wholesale prohibition against the defendant mounting a defense in the case. Pleading the 5th does not preclude the defendant from putting on a defense by calling rebuttal witnesses to the plaintiff’s claims, even if the defendant refuses to testify. In determining whether or not a criminal case will ensue, consider whether your client has been under investigation by law enforcement, how well known the matter is, the time that the conflict became public, and what your client will testify to.

Pleading the 5th has the benefit of not revealing inculpatory information while still permitting you to mount a defense, however limited. Obviously, there are also drawbacks to this approach, such as the limited ability to defend the civil case. At a deposition, instead of pleading the 5th Amendment to every question, it may be advisable to take a more limited approach than the traditional assertion of the privilege to each and every question. Instead, have the client exercise the right only when he must. This might help to limit the potential for judicial sanctions in the civil case while still protecting the client from the specter of criminal prosecution.

Read more about civil cases and discuss your matter with an experienced attorney at Fairlie & Lippy.

Leave a Reply

Required fields are marked *

Or contact me privately:

(215) 997-1000