Sixth Circuit Clarifies When Testimony Waives Fifth Amendment Protections
December 5th, 2022
Contributor: Brandon Mordue
The Fifth Amendment provides a privilege against self-incrimination. "It applies to both civil and criminal proceedings, and it protects parties and non-party witnesses alike." Though most often associated with declining to testify at a criminal trial, the Fifth Amendment can be invoked at various other stages of litigation, such as before a grand jury, at a deposition, or at a civil trial. These multiple opportunities for an individual to offer testimony can lead to the question of whether testifying in one situation waives one's ability to later invoke the Fifth Amendment right against self-incrimination in another setting. In Walters v. Snyder, the Sixth Circuit provided guidance on that question.
Following Flint, Michigan's highly publicized water-quality crisis, various plaintiffs filed a slew of civil lawsuits, and the state government began criminal investigations, ultimately issuing a number of indictments. The criminal indictments followed an unusually winding path. As relevant here, some of the defendants in the civil cases were indicted, but then had those indictments voluntarily dismissed by the government, subject to the government's ability to later reindict them. Other civil defendants had not been indicted in the initial round. All those individuals voluntarily sat for depositions in the civil litigation. Then, each of them subsequently was indicted (or reindicted). At a bellwether trial in one of the civil cases, the now-indicted individuals were subpoenaed and, in response, invoked their Fifth Amendment rights and declined to testify. The parties disputed whether the earlier testimony at the depositions resulted in a waiver of the individuals' ability to claim the privilege against self-incrimination. Via a ruling on a motion to quash, the trial court certified for interlocutory appeal the waiver question. At the trial, segments from the defendants' video depositions were played, but the individuals did not testify live.
The Fifth Amendment prevents the government from coercing a person into testifying and using that evidence against him or her. "The privilege against self-incrimination afforded by the Amendment must be accorded liberal construction in favor of the right it was intended to secure." Even so, the privilege can be lost. "A witness must claim the privilege to enjoy its protections, and he or she may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details."
Waiver extends to all matters about which a witness testifies. "When a witness voluntarily waives the privilege by disclosing information, the scope of that waiver is determined both by the witness's testimony and the opposing party's cross-examination." Notably, the term "waiver" is used differently in this particular context than elsewhere in the law, because the witness's decision to testify need only be voluntary, not knowing regarding the consequences of the testimony. (For this reason, the Sixth Circuit explained that "forfeiture" is the more correct term, but "waiver" is used instead because of widespread common usage in the Fifth Amendment context.) In addition to potential limits on the scope of waiver, any waiver is limited to the particular "proceeding" in which the waiver occurred. "It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details." The unanswered question facing the Sixth Circuit was, "what constitutes a single 'proceeding' under the Fifth Amendment?"
A review of the existing treatises and case law from other circuits revealed that "most courts hold that testimony at a grand jury proceeding or other pretrial event or hearing does not preclude a witness from invoking the privilege at trial." In particular, a substantial amount of case law addresses waiver relating to grand jury testimony, and "[c]ourts generally hold that a grand jury and trial are two separate proceedings, such that grand jury testimony does not necessarily waive the privilege at trial." By contrast, courts have differed regarding whether waiver results from testifying in a deposition in a civil case.
From its survey of the law elsewhere, the Sixth Circuit deduced several principles. "First, a majority of jurisdictions conclude that a waiver at one hearing does not carry over to trial because the two are not part of the same proceeding. . . . Second, when addressing pretrial testimonial events, the further the initial testimony is from trial, the more likely it is that a court will conclude that the two proceedings are separate. . . . Third, pretrial discovery affidavits do not necessarily waive the privilege at subsequent hearings, but it depends on the nature of the next hearing. An affidavit and subsequent deposition may be part of the same proceeding, while an affidavit and trial are not."
The Sixth Circuit found the "most telling thread" of these cases to be looking at the "purpose and logic" of the privilege against self-incrimination secured by the Fifth Amendment. That privilege "is to be interpreted broadly," and "absent some justification to the contrary, [litigants] should be able to invoke it." The purpose of the waiver rule is "to protect the fact-finding process and prevent witnesses from distorting the truth through providing self-selected testimony or testifying only to the favorable aspects of his or her testimony. But when a witness testifies, the Fifth Amendment requires the witness to submit him- or herself to cross-examination, so that the court and the parties may elicit the particulars of the witness's testimony." In light of this reasoning, the Court concluded that "cross-examination is the crucial factor in determining what qualifies as a Fifth Amendment proceeding. . . . [T]his justification strongly supports concluding that a Fifth Amendment waiver applies only to a single testimonial event where the witness is subject to both direct and cross-examination."
As applied to the facts of the case, the Court found that the appellants should have been able to claim their Fifth Amendment privilege against self-incrimination at trial, because trial was a separate "proceeding" than the deposition. "If a witness chooses to submit to a deposition, as appellants did here, the entirety of their waiver is determined at the deposition . . . . Once that cross-examination is finished and the parties each had an opportunity to elicit facts favorable to them, the waiver is finished and the witness may choose to assert a privilege anew at a different testimonial event." Although it may seem odd to conclude that a deposition is a separate "proceeding" from the trial in the same case - and for which the deposition was preparation - the Court emphasized that the "Fifth Amendment applies when a witness faces a real danger of further incrimination," and "several such hazards exist" whenever "a witness is called upon to repeat his or her testimony," such as the risk of perjury.
Many permutations of the waiver question exist, each of which requires a balancing of the risk of waiver against the benefits of testifying. In particular, parallel civil and criminal proceedings relating to the same subject matter are common and present challenging tactical considerations. Whenever there is potential criminal exposure for a person, choosing to testify - whether in deposition or at trial in civil litigation, before a grand jury, or in some other setting - creates a risk of waiver for the right against self-incrimination that needs evaluated by counsel. And, as the Sixth Circuit's lengthy decision indicates, different jurisdictions can reach different conclusions on similar fact patterns.
Even if a witness avoids waiver and can claim the Fifth Amendment at trial, there are other issues raised by choosing whether to testify. For instance, a witness's earlier deposition testimony likely will be admissible at trial under the Rules of Evidence even if the witness cannot be forced to testify live again. Moreover, refusing to testify in a civil matter can result in an adverse inference being drawn against a defendant. All of these issues highlight the complex tradeoffs that go into the decision whether to testify in matters involving possible criminal liability.