Fifth Amendment – Can negative inferences be drawn from a party’s invocation of Fifth Amendment rights in a civil case?
Posted on Nov 5 2012 10:08AM by Attorney, Jason A. Lee
Brief Summary: The Tennessee Supreme Court recently held that negative inferences can be made from a party’s invocation of the Fifth Amendment in a civil case “only when there is independent evidence of the fact to which a party refuses to answer”.
Analysis: The recent Tennessee Supreme Court decision of Rondal Akers v. Prime Succession of Tennessee, Inc., No. E2009-02203-SC-R11-CV, 2012 WL 4320591 (Tenn. 2012) determined whether it is appropriate to provide a jury with instructions that negative inferences can be made when a party invokes the Fifth Amendment privilege in a civil case. The Fifth Amendment privilege is found in the Fifth Amendment to the United State Constitution. This amendment provides that no person shall “be compelled in any criminal case to be a witness against himself.” Akers at 8 (citing U.S. Const. amend. V). Federal Courts have held that the Fifth Amendment protection also applies to civil proceedings and civil trials but only “under those circumstances in which the person invoking the privilege reasonably believes that his disclosures could be used in a criminal prosecution, or could lead to other evidence that could be used in that manner or where the disclosures would not be directly incriminating, but could provide an indirect link to incriminating evidence.” Akers at 8 (citing Doe v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000)).
Therefore, the next question is, can a negative inference be drawn from that party’s, invocation of the Fifth Amendment right in a civil case? The United States Supreme Court has ruled that the trier of fact can draw negative inferences from the party’s invocation of the Fifth Amendment under certain circumstances. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). (See also Tennessee Court of Appeals decision in Levine v. March, 266 S.W.3d 426, 442 (Tenn. Ct. App. 2007) which stated “the majority of jurisdictions, including Tennessee, permit fact finders to draw adverse inferences against parties who invoke their Fifth Amendment rights in a civil case.”) However, since that decision other courts have found that the Baxter rule is not a blanket rule. The Ninth Circuit Court of Appeals Doe case discussed the circumstances under which negative inferences can be made as follows:
[L]ower courts interpreting Baxter have been uniform in suggesting that the key to the Baxter holding is that such adverse inference can only be drawn when independent evidence exists of the fact to which the party refuses to answer. Thus, an adverse inference can be drawn when silence is countered by independent evidence of the fact being questioned, but that same inference cannot be drawn when, for example, silence is the answer to an allegation contained in a complaint. In such instances, when there is no corroborating evidence to support the fact under inquiry, the proponent of the fact must come forward with evidence to support the allegation, otherwise no negative inference will be permitted.
Doe at 1264. The Tennessee Supreme Court in the Akers case agreed with the standard found by the Doe court. Akers at 9. As a result, the Tennessee Supreme Court held that “the trier of fact may draw a negative inference from a party's invocation of the Fifth Amendment privilege in a civil case only when there is independent evidence of the fact to which a party refuses to answer by invoking his or her Fifth Amendment privilege. In instances when there is no corroborating evidence to support the fact under inquiry, no negative inference is permitted.