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FIFTH AMENDMENT ISSUES IN DIVORCE CASES
1994 National Legal Research Group, Inc.

The fifth amendment to the United States Constitution, and all state constitutions, e.g., Virginia Constitution art. I, 8, provide that no person can be compelled to give evidence against himself. The purpose of the privilege is to protect a witness from being forced to give testimony leading to the infliction of penalties affixed to the criminal acts upon himself. 81 Am. Jur. 2d Witnesses 83, 90 (1992).

This privilege attaches to a witness not only in a criminal proceeding wherein the witness is the defendant, but also to any witness in any judicial proceeding, either civil or criminal. Lefkowitz v. Cunningham, 431 U.S. 810 (1977). In a civil action, in order to invoke the privilege against self-incrimination, the witness must be faced with a risk of incarceration that is substantial and real, and not merely trifling or imaginary. Hoffman v. United States, 341 U.S. 479 (1951); Zicarelli v. Investigation Commission, 406 U.S. 472 (1972); United States v. Whittington, 786 F.2d 644 (5th Cir.), cert. denied, 479 U.S. 882 (1986); see Note, Use of the Privilege Against Self-Incrimination in Civil Litigation, 52 Va. L. Rev. 322 (1966).

Quite often, parties or witnesses to a divorce action are asked whether they have ever committed adultery. The parties or witnesses will then invoke the privilege against self-incrimination. Counsel for the propounding party thus needs to inquire whether invocation of the privilege is proper under the circumstances.

Privilege Raised by Parties to Divorce Action

The privilege against self-incrimination has been raised in divorce cases by the parties themselves with regard to whether a party has committed adultery or some other kind of marital misconduct that would subject the spouse to criminal prosecution. Universally, subject to the exceptions discussed below (i.e., the running of the statute of limitations or a grant of immunity), such claims have been upheld. Anonymous v. Anonymous, 353 So. 2d 510 (Ala. 1977) (wife's claim of privilege against incrimination upheld); Hackes v. Hackes, 446 A.2d 396 (D.C. 1982) (husband invoked claim of privilege; claim upheld); Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964) (wife's claim of privilege upheld); Payne v. Payne, 33 Md. App. 707, 366 A.2d 405 (1976) (husband's claim of privilege upheld); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968); Harwell v. Harwell, 355 S.W.2d 137 (Mo. Ct. App. 1961) (wife invoked claim of privilege; claim upheld); Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225 (1974) (wife and her paramour invoked claim of privilege; claim upheld); Levin v. Levin, 129 N.J. Super. 142, 322 A.2d 486 (App. Div. 1974) (husband invoked claim of privilege; claim upheld); Hollowell v. Hollowell, 6 Va. App. 417, 369 S.E.2d 451 (1988) (wife's claim of privilege upheld); Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987) (husband's claim of privilege upheld); Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970) (wife's claim of privilege upheld).

Where, however, a party affirmatively pleads that he or she has been a faithful spouse by way of answer in response to a complaint alleging adultery, the party has effectively waived the privilege against self-incrimination by opening the door to the issue of fidelity. Messiah v. Messiah, 17 Va. Cir. 365 (Fairfax County 1989); Leitner v. Leitner, 11 Va. Cir. 281 (Fairfax County 1988).

Moreover, as noted above, it is only necessary that criminal prosecution may be had against the testifying person. Thus, even if a criminal prosecution for adultery, fornication, or other sexual act is only a possibility, not a probability, the privilege will still be upheld. This was stated explicitly in Belmonte v. Lawson, 750 F. Supp. 735 (E.D. Va. 1990), where the court held that in assessing whether a likelihood of prosecution exists such that a witness may be allowed to assert the fifth amendment privilege, the court must avoid any kind of prognostication on whether the party or witness will be prosecuted. Rather, the court may only examine such traditional factors as the statute of limitations, double jeopardy, and a grant of immunity. So long as the possibility of prosecution exists, the witness must be allowed to invoke the fifth amendment. Accord Payne v. Payne, 33 Md. App. 707, 366 A.2d 405, 410 (1976) (it is not necessary that testimony will certainly lead to criminal prosecution; instead there must be reasonable cause to apprehend danger). But see Cornelison v. Cornelison, 22 Va. Cir. 234 (Fairfax County 1990) (court finding possibility of prosecution to be remote and unlikely).

Fifth Amendment Raised by Nonparty Witnesses

It is important to note at this point that the privilege against self-incrimination for a witness is to be distinguished from the same right of an accused in a criminal case. In the latter case, the accused has the absolute right not to take the witness stand and the absolute right not to have any questions propounded of him. In the former case, however, a witness has no right to be immune from inquiries. Thus, the proper manner of asserting or invoking the privilege against self-incrimination is for the witness to wait until the propounding to him of a question which tends to incriminate him, then to claim the privilege and decline to answer. 81 Am. Jur. 2d Witnesses 117, 120 (1992); see also Gowen v. Wilkerson, 364 F. Supp. 1043 (E.D. Va. 1973) (husband called as witness in contempt proceeding was required to take stand and refuse to answer questions propounded).

As in the case of a party to a divorce action invoking the privilege against self-incrimination, where a witness in a divorce action invokes the privilege against self-incrimination, such invocation will be upheld if the possibility of prosecution exists. Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966) (nonparty witness in divorce action was asked if he had seen plaintiff wife in the company of men other than her husband; witness refused to answer on grounds of privilege against self-incrimination; claim of privilege upheld); Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225 (1974) (wife's paramour invoked privilege; claim upheld).

Sanctions Against Party Invoking Privilege

If a spouse invokes a fifth amendment privilege regarding questions about adultery, a court is free to impose a variety of sanctions against that spouse, including the denial of affirmative relief. E.g., Anonymous v. Anonymous, 353 So. 2d 510 (Ala. 1977) (as result of wife's claim against self-incrimination, court was free to make any and all inferences against her regarding substance of questions propounded); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (after wife claimed privilege, court was free to dismiss her claim); Harwell v. Harwell, 355 S.W.2d 137 (Mo. Ct. App. 1961) (court free to make any inferences against party claiming privilege); Levin v. Bornstein, 13 Misc. 2d 161, 174 N.Y.S.2d 574 (Sup. Ct. 1958), aff'd, 7 A.D.2d 995, 183 N.Y.S.2d 868, aff'd, 6 N.Y.2d 892, 190 N.Y.S.2d 702 (1959) (court free to impose sanctions on party who invokes fifth amendment privilege); Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987) (moving party in civil action who exercises privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion); Donaldson v. Donaldson, 27 Va. Cir. 327 (Fairfax County 1992) (court free to impose noncriminal sanctions on the husband who invoked his fifth amendment privilege against self-incrimination); Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970) (it was error for court not to take an adverse inference against wife who claimed privilege). See generally Annotation, Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question, 4 A.L.R.3d 545 (1965); Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation, 39 Brooklyn L. Rev. 121 (1972); Madsen, Penalizing the Civil Litigant who Invokes the Privilege Against Self-Incrimination, 24 U. Fla. L. Rev. 541 (1972).

The rationale for this rule was explained recently in Dodson v. Dodson, 855 S.W.2d 383 (Mo. Ct. App. 1993). In that case, the court stated:

Id. at 385; accord Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225, 227 (1974) (in civil proceedings, the courts have, in the interest of truth and justice, displayed understandable readiness to impose noncriminal sanctions for refusal to submit to pretrial discovery on the basis of the privilege; thus, where the plaintiff in a civil action refuses to testify in pretrial discovery on the grounds of self-incrimination, it is generally held that he may be subjected to some lesser noncriminal sanctions); Hackes v. Hackes, 446 A.2d 396, 399 (D.C. 1982) (when a civil litigant invokes the fifth amendment to prevent discovery, he is subject to noncriminal sanctions; the imposition of sanctions should strike the proper balance between the public and private interests in broad discovery, while preserving the purpose of the privilege; striking a pleading should be the last resort).

Inferences Against Party Where Witness Invokes Privilege

Assuming that the witness refused to answer on the grounds of self-incrimination, adverse inferences may be taken from that failure. If a witness's claim of privilege is upheld by a court, the fifth amendment does not forbid adverse inferences against parties to civil actions when a witness refused to testify. 81 Am. Jur. 2d Witnesses 121 (1992); Annotation, Inferences Arising from Refusal of Witness Other than Accused to Answer Questions on the Ground that the Answer Would Tend to Incriminate Him, 24 A.L.R.2d 895 (1952); Brewer v. Brewer, 249 Ga. 517, 291 S.E.2d 696 (1982) (wife's paramour claimed fifth amendment privilege in a deposition; husband should then have been allowed to call witness to testify, so that jury could draw adverse inference from failure to testify at trial); see also Annotation, Privilege Pretrial Assertion As Bar, 36 A.L.R.3d 1367 (1971). The adverse inference opposing counsel will wish the court to draw is that the adultery did in fact take place. This inference is permissible. See Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart Inc., 465 F. Supp. 585 (M.D. La. 1979) (where witness refused to testify on fifth amendment grounds, court may infer that witness is responsible for acts complained of); In re Todd, 47 B.R. 18 (Bankr. D. Miss. 1984) (when party refuses to testify in civil proceeding, it is proper to draw adverse inference from failure to offer information); In re Estate of Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991) (factfinder in civil action may use witness's invocation of fifth amendment privilege to infer that his truthful testimony would be unfavorable).

Defenses to the Invocation of the Privilege

One situation in which it may be argued that testimony cannot be used against a witness for the later invocation of criminal penalties is where the statute of limitations has run on the criminal act. Since no prosecution could result from an admission of guilt, the privilege against self-incrimination does not apply. United States v. Goodman, 289 F.2d 256 (4th Cir.), judgment vacated, 368 U.S. 14 (1961). Thus, if the witness cannot reasonably be said to face prosection, because for example the statute of limitations has run, then the invocation of the fifth amendment privilege must fail. E.g., Handley v. Handley, 460 So. 2d 162 (Ala. Civ. App. 1983); Graham v. Miracle, 556 P.2d 605 (Okla. 1976); Pierce v. Pierce 25 Va. Cir. 348 (Fairfax County 1991); Cornelison v. Cornelison, 22 Va. Cir. 234 (Fairfax County 1990); Messiah v. Messiah, 17 Va. Cir. 365 (Fairfax County 1989); see also Mestichelli v. Mestichelli, 44 Misc. 2d 707, 255 N.Y.S.2d 185 (Sup. Ct. 1964) (witness had no right to refuse to submit to blood test in custody action, as drawing of blood does not compel "testimony" within rubric of fifth amendment). Thus, if at the time the questions are propounded the statute of limitations has run, the party or the paramour has no right to refuse to answer the questions.

Another way in which a party may seek to procure testimony is to grant "immunity," i.e., guarantee that the testimony will not be used against the witness. A statutory grant of "transactional immunity" protects the witness against all later prosecutions relating to the matters about which the witness testifies. Such a grant obviates the claim of privilege against self-incrimination.

On the other hand, "use immunity" protects a witness against the actual use of compelled testimony and evidence derived directly or indirectly therefrom. Quite importantly:

81 Am. Jur. 2d Witnesses 139 at 154-55 (1992). Hence, where use immunity is granted pursuant to a statute, the government may not later use that testimony and may not later use evidence derived from that testimony in prosecuting the witness. The government may, however, prosecute the witness using evidence derived from a legitimate, independent source. Id. 141. Consequently, since the witness may ultimately be prosecuted, the courts have taken the view that use immunity is not constitutionally adequate, and a witness may stand on the privilege when granted only use immunity. See generally Annotation, Adequacy, Under Federal Constitution, of Immunity Granted in Lieu of Privilege Against Self-Incrimination, 32 L. Ed. 2d 869 (1973).

Conclusion

So long as the statute of limitations on adultery, fornication, or other marital misconduct crime has not run, and the local prosecutor is unwilling to grant transactional immunity, then a claim against self-incrimination will be upheld. In that event, opposing counsel should argue for sanctions and inferences against the party invoking the privilege.

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