Every divorce lawyer has been in this situation: you are taking a deposition or examining a witness on the stand. You begin to get into sensitive subject matter; such as adultery, failure to report income or other miscellaneous criminal activities. The other lawyer objects. We all know that the privilege against self-incrimination applies even in civil cases such as divorce. So, you are not going to get the admission into evidence.
Many practitioners do not realize that they have some recourse, however. The law is that while the privilege applies in a civil case, it is not without effect. In fact, if you are in the right situation you can use the other side’s use of the privilege to great advantage. For example, an appellate court in Illinois has held that a plaintiff could not invoke the privilege against self-incrimination while still maintaining the lawsuit. The trial court’s dismissal of the complaint was affirmed in Galante vs. Steel City National Bank of Chicago, 384 N.E.2d 57 (1978). Galante was a case of first impression in Illinois and it is instructive with respect to the cases the Court reviewed from other jurisdictions. The Appellate Court held, “these jurisdictions have overwhelmingly rejected the contention that a plaintiff in a civil action may invoke the Fifth Amendment privilege against self-incrimination while still maintaining the lawsuit… The federal courts which have considered this issue have also rejected a plaintiff’s right to maintain a civil action while also asserting the Fifth Amendment privilege in response to a defendant’s request for discovery… Although it is true that plaintiffs cannot be forced to involuntarily incriminate themselves, we do not believe they should be permitted to use the Fifth Amendment privilege as both a shield of protection and a sword of attack. Plaintiffs have forced defendants into court. It would be unjust to allow them to prosecute their cause of action and, at the same time, refuse to answer questions, the answers to which may substantially aid defendants or even establish a complete defense.” 384 N.E. 2d at 61-62.
More recently, in Sparks vs. Sparks, 768 S.W.2d 563 (1989), the Eastern District of the Missouri Court of Appeals held that a wife who invoked the Fifth Amendment privilege was not entitled to the affirmative relief of temporary maintenance and attorney’s fees in her divorce action. The striking of her pleading was held to be appropriate relief “intended to promote fairness and prevent a party from obtaining an advantage from the invocation of the privilege… That she has a right to claim the privilege against self-incrimination so long as she is exposed to possible criminal prosecution is unquestioned. However, invocation of the privilege in a civil case, especially by one seeking affirmative relief from the court, is not without its price… In other words, the constitutional privilege may be used as a shield, but not a sword.” 768 S.W.2d at 565-566.
Even more recently, in Robinson vs. Robinson, 615 A.2d 1190 (1992) the Court of Appeals of Maryland, citing the U.S. Supreme Court case of Baxter vs. Palmigiano, 425 U.S.308 (1976) held that the fact finder in a civil proceeding is entitled to draw an adverse inference against the party who refuses to testify. In Robinson the wife’s invocation of the privilege in refusing to answer a question regarding adultery led to the inference that she had committed adultery. However, the court would not go further and strike her testimony with regard to other factors bearing on her fitness as a custodial parent. This case also contains a good discussion of the privilege issue in other states.
The Missouri Court of Appeals for the Western District went even further in Dodson vs. Dodson, 855 S.W. 2d 383 (1993). There the husband refused to answer questions regarding extramarital affairs. At the trial the wife objected to the husband’s testifying regarding any affirmative relief he asked for. The trial court agreed and stated that the court did not have discretion to award marital property to the husband based on his claiming the privilege. The Court of Appeals reversed, because the statute in Missouri required the court to divide marital property and therefore the award of marital property was held not to be affirmative relief to the husband. However, the Court stated that based on the husband’s failure to answer, a disproportionate distribution of property to the wife, would be proper. The Court also stated that “whether asserted by the petitioner or the respondent, invocation of the Fifth Amendment privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence… In this regard, the trial court is vested with discretion in fashioning an appropriate remedy to prevent unfairness and disadvantage from the concealment of pertinent information.” 855 S.W.2d at 385.
As a practical matter the ramifications of the above cases are obvious. There are many possible tactics that can be utilized by virtue of the use of a privilege. For example, when you represent the party against whom the privilege is attempted to be asserted, in an extreme case you may be able to file a motion to dismiss the entire lawsuit. Let us assume your opponent is a parent seeking custody who refuses to disclose conversations with his therapist with respect to alcoholism treatment. Should this person get away with disclosing what may be highly relevant evidence, especially in custody cases where the best interest of the child is supposed to be paramount? At the very least you might be successful in filing a motion to bar all testimony with respect to the facts surrounding the privilege or at least an order in limine would be appropriate. Perhaps summary judgments would be appropriately entered since the assertion of the privilege blocks the party from establishing their cases as a matter of law. In other words, if a party asserts that there is a factual issue but will not produce all of the available evidence, that party should be prevented from benefiting. At the very least the privilege could be eliminated by virtue of a motion to compel a waiver of a privilege or a motion to stay proceedings until the privilege is waived. The court can then enter appropriate orders for non-compliance with the order or at the very least, the court is generally permitted to draw an adverse inference against the person who claims the privilege. A motion for the court to draw such inference may be successful. All of the things will serve to possibly result in a definitive waiver.
When representing the party claiming the privilege you must remain firm in your assertion of same. Ask the court for a declaration that an adverse inference will not be made by the court in an appropriate case or file a motion to quash the subpoena or a motion to restrain the opposing party from contacting the therapist, attorney, accountant or other person containing privileged information. The point is, you should be creative in your litigation strategies with respect to privilege since case law is still emerging. There will most likely be appellate decisions regarding such lesser privileges such as attorney-client, therapist-patient and accountant-client. Certainly, if the above authorities apply to a constitutional privilege against self-incrimination, it should apply to these lesser privileges.
Paul L. Feinstein, a Chicago practitioner with over four decades of experience, practices family law with an emphasis on divorce litigation, consulting, and appeals. Paul is often hired by trial lawyers to handle appeals and to assist them with determining legal strategies and preserving a sufficient record at trial. He has belonged to the American Academy of Matrimonial Lawyers since 1991 and the Appellate Lawyers Association since 2010. He can be reached at (312) 346-6392. View his Divorce Magazine profile.