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 control" mode.
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 prosecution. 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 forfeiture. 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.
The 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 of confidentiality."
Exercising the Fifth in Family Law Settings
From the 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 Sachs, and 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 and remanding.
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 proceeding." The 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.