Q. Can I assert the Fifth Amendment in my divorce | family law proceedings?
Asserting the Fifth Amendment Privilege Against Self-Incrimination in Family
Law Cases in California: Severe Adverse Evidentiary Consequences Can Result, But Are Not Unlimited
by Michael C. Peterson
Divorce trance can overtake the common sense of even the most well intentioned
of family court litigants from time to time. This is why divorce proceedings
are sometimes referred to as "liar's court." On rare occasions
it is necessary to consider invoking the Fifth Amendment against self-incrimination
in a Family Law matter, or a litigant may be faced with the other party's
seeking to assert it. Because of the nature of the Family Law process
and its necessarily touching upon people's 'sacred cows' (i.e.
their children and their money), there is the potential for a party to
have misstated or outright lied about events in pleadings they've
signed under oath. Usually it is hard to catch someone in the act, and
the little fibs may be hard to identify in a 'he said/she said'
scenario: Sometimes, however, there is a "smoking gun" and one
spouse may obtain objectively verifiable evidence of a lie by the other
party. When this occurs it is imperative to immediately move into "damage
While coming clean may be the best response, if a party's fraud creates
the possibility for criminal prosecution, there may be no practical alternative
than to direct a litigant to go silent and "take the 5th". Here
are some thoughts about how that works, and what the consequences may
be in terms of the family law case itself. In these circumstances it is
essential that the record be carefully protected and that the bench officer
assigned to the case be made familiar with the rules surrounding invocation
of the 5th Amendment by way of Points and Authorities, and it could be
a big mistake to assume the Court already knows the law on this subject.
Consequences for Invoking the Fifth
Technically, under California's
Ev. C. § 913 (generally applicable to all claimed privileges) all that the Court can
do is impose evidentiary sanctions against the invoker (i.e. preventing
an invoking husband from testifying or presenting other evidence opposing
the wife's motion). Opposing counsel is prevented from commenting/arguing
anything concerning the invoker's Fifth Amendment invocation (i.e.
the invocation essentially an admission by the client of perjury, an admission
of other wrongdoing, an admission of alcoholism, impeachment/bad character
for truthfulness, etc.). However, the scope of the evidentiary sanctions
against the invoker is limited.
The Court cannot prevent cross-examination of the non-invoker's witnesses
by the invoker, nor can it preclude evidence by the invoker's third-party
'friendly' witnesses. Moreover, the finder of fact (in Family
Law, the judge) cannot take the Fifth Amendment invocation as an inference
of anything. These rules are specific to
California under Ev. C. § 913; under federal/constitutional law and other state's laws, opposition
can argue whatever they desire in terms of inference from a party's
invocation of the Fifth, and the fact finder (judge or jury) can make
any inference they desire.
The biggest concern in the potential for a Fifth Amendment invoker is to
waive his or her right not to be compelled to testify (i.e. respond to
an adverse party's or the judge's question(s)); by a Fifth invoker
directly making virtually any denial/discussion of the facts related to
the subject-matter over which he or she invokes the Fifth, he or she could
be deemed to have waived the privilege against self incrimination.
To the extent it exists under the U.S. or State Constitution (U.S. Const.
5th Amend.; Cal. Const. Art I, § 15), a person has a privilege to
refuse to disclose any matter that may tend to incriminate him or her. See also
Ev.C. § 940.
Four Requirements Before You May Claim Privilege
There are four requirements that together trigger the privilege against
self-incrimination. The information must:
tend to incriminate (i.e. "whenever the witness's answers would
furnish a link in the chain of evidence needed to prosecute the witness
for a criminal offense" as per
In re Marriage of Sachs (2002) 95 CA4th 1144, 116 CR2d 273)
- be personal to the witness claiming the privilege
- be obtained or sought by compulsion; and
be testimonial or communicative in nature.
Izazaga v. Sup.Ct. (People) (1991) 54 C3d 356, 366, 285 CR 231, 237
Evidence that does not implicate each of these requirements is outside
the scope of the privilege.
The privilege may be asserted in any type of proceeding (i.e. civil or
administrative, as well as criminal, and including in the discovery phase
of litigation, e.g. during a deposition as well as an evidentiary hearing)
so long as the witness believes disclosure could implicate him or her
in criminal activity and thus potentially subject the witness to criminal
Kastigar v. United States (1972) 406 US 441, 444, 92 S.Ct. 1653, 1656.
The Fifth Amendment privilege gives defendants in a criminal proceeding
the right not to be called as a witness and, hence, to refuse to testify
at all, but there is no such privilege in civil cases. Ev.C. § 930.
In civil litigation (including Family Law matters), witnesses (whether
parties or non-parties) cannot invoke the privilege against self-incrimination
to entirely refuse to be sworn (Ev.C. §§ 911, 930). Once sworn, witnesses in civil litigation may claim the privilege
to refuse to answer specific questions only. Ev.C. § 940. In effect
then, a witness' privilege against self-incrimination must be claimed
in front of the fact finder (i.e. the judge or the jury). The witness
must assert the privilege as to particular questions asked or other evidence
sought before the testimony is given.
Fuller v. Sup.Ct. (IPC Int'l Corp.) (2001) 87 CA4th 299, 308, 104 CR2d 525, 532.
Any delay in asserting or failure to assert the privilege may result in
People v. Blacksher (2011) 52 C4th 769, 822–823, 130 CR3d 191, 243–244. As such,
during any examination of the Fifth Amendment invoker by either the Court
or the opposition is the time to raise the Fifth, and it may have to be
raised only once or it might have to be raised more than one-hundred times.
A witness who testifies voluntarily waives the privilege against self-incrimination
for the matters about which he or she testified. "(A) witness ...
may not testify voluntarily about a subject and then invoke the privilege
against self-incrimination when questioned about the details."
Mitchell v. United States (1999) 526 US 314, 321, 119 S.Ct. 1307, 1311–1312. The scope of
the waiver is determined by the scope of relevant cross-examination. In
comparison, the privilege against self-incrimination is not waived by
the witness' voluntary disclosure of incriminating information on
a prior occasion.
People v. Williams (2008) 43 C4th 584, 615, 75 CR3d 691, 718. As a consequence of these rules,
a party who might need to raise the privilege must be extremely careful
about whatever facts he or she asserts in a proceeding because any affirmative
assertion regarding matters for which follow up questions by the opposition
or the court (acting in an inquisitorial capacity) could result in a waiver
of the privilege.
One of the privilege's basic functions is to protect innocent people
"who otherwise might be ensnared by ambiguous circumstances."
Consequently, the privilege may be invoked by those who claim innocence.
Ohio v. Reiner (2001) 532 US 17, 21, 121 S.Ct. 1252, 1254–1255. As such, the effects
of claiming the privilege from self-incrimination are circumscribed and
limited in a civil case under both federal/constitutional law and California
law. As discussed further, California law provides greater safeguards
than federal/constitutional law as to the effect of claiming the privilege.
The Privilege is a Shield, But Not a Sword
But, at the same time, a party cannot "profit" to his or her
adversary's disadvantage by invoking the privilege for the purpose
of excluding relevant evidence on the party's claim or defense - by
refusing to testify to material matters under the cloak of the self-incrimination
privilege, a party may suffer the penalty of dismissal or evidentiary/testimonial
sanctions. While a criminal defendant's Fifth Amendment privilege
is absolute, witnesses in civil cases must either waive the privilege
or accept the civil consequences of their silence if they choose to exercise it.
Alvarez v. Sanchez (1984) 158 CA3d 709, 712, 204 CR 864, 866. As shown below under California
case law, these consequences are relatively limited and in general only
impact the privilege invoker's ability to present evidence in opposition.
In the general non-Family Law civil context, commencing a lawsuit waives
the privilege as to factual issues tendered by the complaint. Thus, plaintiffs
who refuse to answer questions on factual issues tendered by the complaint
risk dismissal of their suit.
Fremont Indem. Co. v. Sup.Ct. (Sharif) (1982) 137 CA3d 554, 560, 187 CR 137, 140. In comparison, because a defendant
has not initiated the action, lesser sanctions (e.g., exclusion of testimony)
are imposed where invocation of the privilege deprives plaintiff of important
testimonial or documentary evidence.
Alvarez v. Sanchez (supra), at 712–713, 866–867 & fn. 3 [holding that where Plaintiff
brought fraud action against defendants for misuse of investment monies,
when defendants invoked their privilege against self-incrimination, the
trial court's striking the defendant's answer and entering a default
judgment awarding punitive damages and imposing constructive trusts upon
defendants' properties was overly harsh sanction which denied their
right to trial].
In the Family Law context, I think the circumstances of a privilege-raising
party who is responding a motion are analogous to that of a civil defendant
such that evidentiary sanctions only can be imposed on him or her (and
if the invoker is the moving party, terminating sanctions such as dismissal
of the motion might be appropriate). Nevertheless, such evidentiary sanctions
can be dispositive of the case or hearing's outcome. Fisher v. Gibson (2001) 90 CA4th 275, 285, 109 CR2d 145 [upholding the trial court's
ruling that the party opposing summary adjudication failed to make a showing
of disputed facts necessary to oppose the motion; even if such facts might
exist, the opposing party could not then present such facts due to its
proper invocation of the privilege against self-incrimination]
Alvarez is one of the very few reported cases in California involving the effects
of a civil party invoking the 5th; 90%+ of the annotated cases are criminal.
In re Marriage of Sachs (2002) 95 CA4th 1144, 116 CR2d 273 is the only divorce case I find involving
a party's invocation of the 5th, but the case is not particularly helpful as it involved post-judgment
support arrears' discovery (document production and debtor's examination)
and collection. The
Sachs appellate court held that the privilege against self-incrimination did
not protect a former husband from producing his income tax returns, and
it did not preclude the former wife from examining him about their contents,
subject to the statutory requirement of confidentiality.
Sachs appellate court reasoned that "[w]henever the Court is confronted
with the question of a compelled disclosure that has an incriminating
potential, the judicial scrutiny is invariably a close one. Tension between
the State's demand for disclosures and the protection of the right
against self-incrimination is likely to give rise to serious questions.
Inevitably these must be resolved in terms of balancing the public need
on the one hand, and the individual claim to constitutional protections
on the other; neither interest can be treated lightly", citing
California v. Byers (1971) 402 U.S. 424, 427, 91 S.Ct. 1535, and that "[t]he successful
invocation of the privilege against self-incrimination by a party, however,
may present insurmountable obstacles to litigation of matrimonial disputes.
That is, if a party asserts the privilege and succeeds in excluding tax
returns and other financial information, the court's ability to assess
the relative financial positions of the parties and make appropriate property
and support provisions in a marital dispute may be severely undermined."
It continued "[t]hus, courts have struggled to find ways to preserve
both the claimant's constitutional privilege and the integrity of
the trial process", and "[i]n balancing the parties' interests,
we cannot help but point out that Jeffrey's argument is as counterintuitive
as they come. Under his theory, a spouse ordered to pay child support
could refuse to comply with the order at the outset. Having defied the
order, the spouse could then invoke the Fifth Amendment in perpetuity,
relying on the refusal to pay support as grounds for shielding his or
her income from discovery. It continued "Jeffrey is attempting to
distort the law. Under his view, the Fifth Amendment would provide safe
harbor for spouses seeking to thwart court-ordered support. " '[But]
... the court ... may prevent the mantle of protection from being turned
into a cloak for fraud and trickery.' " It concluded that "In
providing that a spouse can obtain the other spouse's income tax returns
and "examine" the other spouse with respect to the contents
of the returns, the Legislature—by enacting
section 3552—has struck an appropriate balance between the conflicting interests
of the supported spouse and the supporting spouse. Thus, the supported
spouse can obtain information about the income of the supporting spouse,
and the tax returns of the supporting spouse must remain confidential.
We therefore hold that Gail may conduct a judgment debtor examination
(Code Civ. Proc., §§ 708.110–708.205) in conjunction with
section 3552, that is, she may obtain a copy of Jeffrey's income tax returns and
examine him about their contents, subject to the statutory requirement
Exercising the Fifth in Family Law Settings
Sachs case, I believe the lesson is that a Court might, constitutionally and
even without a waiver, order a Fifth invoker to answer questions from
it or opposing counsel about the subject matter of a motion for child
custody and/or visitation determination (say in a situation where a parent
is an alleged drug addict), in light of its need to balance the client's
right to not self-incriminate with the Court's obligation to determine
the best interests of the children. The Court could easily draw an analogy
between FC § 3552 provisions related to the disclosure of tax returns
and examination of the disclosing party as discussed in
FC § 3011(d)'s factor of "habitual and continued abuse" of controlled substances
in determining the children's best interests.
However, there are some recent cases out of the juvenile courts that could
be favorable to a Fifth invoker's position in terms of the nature
and scope of evidentiary sanctions the court might impose as a result
invocation of the self-incrimination privilege.
In re Brenda M. (4 Dist., 2008) 160 CA4th 772, 72 CR3d 686 held that, in a child dependency
jurisdictional (Wel. & Inst. § 300) proceeding being sustained
following the father's invocation of the 5th and the court ordering evidentiary sanctions against father for invoking the 5th (refusal to permit father to cross-examine the social worker and other
witnesses and ordering the father to testify despite his 5th invocation), it was error for trial court to sanction father with respect
to the cross-examination of the agency's report preparer, and such
sanction was not harmless beyond a reasonable doubt, the court reversing
There, the father had been subpoenaed by the child welfare agency and was
called and ordered to testify, per
Ev. C. § 776 as an 'adverse witness', at the Wel. & Inst. § 300 jurisdictional
hearing. The trial court reasoning that the father had adequate protection
from self-incrimination under Wel. & Inst. § 355.1(f)'s provision
that "[t]estimony by a parent, guardian, or other person who has
the care or custody of the minor made the subject of a proceeding under
Section 300 shall not be admissible as evidence in any other action or
In re Brenda M. appellate court reasoned that, under the holding of
In re Mark A. (2007) 156 CA4th 1124, 68 CR3d 106 (that Wel. & Inst. § 355.1(f)
evidence exclusion/statutory immunity was not coextensive with the 5th Amendment privilege, and absent grant of immunity coextensive with Fifth
Amendment privilege, the
In re Mark A. father was entitled to stand on his right to assert the privilege while
simultaneously having his two witness's testimony be received into
evidence in the absence of a contempt finding) it was prejudicial error
to disallow the
In re Brenda M. father to cross-examine the agency's report preparer as a sanction.
In conclusion, the holdings of
In re Brenda M. and
In re Mark A., together, seem to me to stand for the proposition that the scope of a
court's evidence sanctions against a Fifth Amendment invoker do not
include preclusion of the client's cross-examination of the adverse
party's witnesses or the client's presentation of her own favorable
witnesses (e.g. alibis, forensic accountants, custody evaluators, etc.)
Claiming the Fifth Is a Last Resort
Under federal/constitutional law, the Fifth Amendment does not forbid the
drawing of adverse inferences against parties to civil actions when they
refuse to testify.
Mitchell v. United States (1999) 526 US 314, 328, 119 S.Ct. 1307, 1315. Nonetheless, under California
law, neither the court nor counsel may comment on the fact that a witness
has claimed a privilege. Ev. C. § 913(a);
People v. Doolin (2009) 45 C4th 390, 441–442, 87 Crud 209, 255–256. Nor may
the trier of fact (judge or jury) draw any inferences (whether as to witness
credibility or as to any other matters in issue) from the fact a witness
has claimed a privilege. Ev. C. § 913(a);
People v. Williams (2008) 43 C4th 584, 629–630, 75 CR3d 691, 730. In fact, there are
specific jury instructions on this point: CACI 215 and BAJI 2.27.
BAJI 2.27 (civil jury instructions) provides: "If, [at a deposition]
[in answers to interrogatories] a privilege not to testify with respect
to any matter [or to refuse to disclose or to prevent another from disclosing
any matter] has been exercised, no assumption of fact is to be made by
you because of the exercise of that privilege, and you must not draw any
inference therefrom as to the believability of the witness or as to any
matter in issue in this trial."
However, the ban on commenting on claim of privilege does not affect counsel's
right to comment on gaps in the opposing party's case resulting from
a witness' exercise of the privilege.
People v. Redmond (1981) 29 C3d 904, 910–911, 176 CR 780, 784–785—proper
for jury to consider logical gaps in defense.
Courts faced with a party claiming a privilege against self-incrimination
may stay proceedings until the applicable criminal statute of limitations
runs, or may grant immunity (with the DA's agreement), and thereby
require compulsion of testimony. However, these provisions will likely
be rarely used by a Family Law judge in light of the need to make temporary
and permanent orders concerning child custody and visitation.
In certain settings, family law litigants may be forced to invoke the 5th
Amendment. If they choose to do so, however, they had better understand
that they cannot have their cake and eat it too - i.e., they cannot assert
facts or evidence tending to disprove or explain the subject matter of
the lie itself or the privilege not to testify may be waived. However,
they are not hamstrung from presenting evidence on topics that are outside
or beyond the 5th Amendment subject matter.
Good luck out there! Honesty is always the best policy, and we will cover
the potential consequences of perjury in another blog.
Michael C. Peterson, Associate Attorney
Law Firm of Thurman W. Arnold III C.F.L.S.