Use of Your Fifth Amendment Privilege in Family Law Cases
Your Fifth Amendment Privilege against self incrimination should be used very carefully in family law matters.
The Fifth Amendment Privilege Applies to Civil CasesThe Constitution of the United States of America contains a right against self-incrimination. See U.S. CONST. AMEND. V. The fifth amendment privilege may be asserted in any proceeding, irrespective of whether the proceeding is civil, criminal, administrative, judicial, investigatory, or adjudicatory. Maness v. Myers, 419 U.S. 449, 464, 95 S.Ct. 584, 594 (1975). A litigant may assert this privilege whether or not an indictment is pending. Gebhardt v. Gallardo, 891 S.W.2d 327 (Tex. App. -- San Antonio, 1995, orig. proceeding).
Procedure to Establish the Applicability of the PrivilegeThe fifth amendment privilege applies in civil discovery. Burton v. West, 749 S.W.2d 505, 507 (Tex. App. -- Houston [1st Dist.] 1988, orig. proceeding). A party resisting discovery on the basis of a privilege does bear the burden of proving the applicable privilege. In Re Exxon Mobil Corp., 97 S.W.3d 353, 357 (Tex. App. -- Houston [14th Dist.] 2003, orig. proceeding). See also Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex. 1996).
To make a prima facie showing of the applicability of a privilege, the party claiming the privilege must plead the privilege, and produce evidence to support the privilege through affidavits or testimony. Exxon, 97 S.W.3d at 357. The party asserting the privilege must assert the privilege against self-incrimination in response to each specific inquiry. Gebhardt, 891 S.W.2d at 330. If an inquiry calls for an answer that might reasonably present a hazard of self-incrimination to the witness, the witness may refuse to answer on the ground of the privilege. Ex Parte Butler, 522 S.W.2d 196, 198 (Tex. 1975).
When a witness refuses to answer upon fifth amendment grounds, the witness is not the exclusive judge of his right to exercise the privilege. The judge is entitled to determine whether the refusal to answer is based upon the good faith of the witness and is justifiable under all circumstances. Butler, 522 S. W.2d at 198. The court's inquiry, however, is limited because the witness need only show that an answer to the question is likely to be hazardous to him; the witness cannot be required to disclose the very information that the privilege protects. Id. Before the judge may compel the witness to answer, the judge must be "perfectly clear from a careful consideration of the circumstances in the case, that the witness is mistaken, and that the answer cannot possibly have such tendency to incriminate." Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814 (1951) (emphasis added). When a party asserts a fifth amendment privilege to a discovery request, the trial court reviews the discovery request, applies the law of the privilege, discovery, and protection to the request, and determines the best way to protect the privilege, the right to proceed with the case, and the right to defend the suit. In Re Garza, No. 13-07-401-CV, 2007 Tex. App. LEXUS 6320 (Tex. App. -- Corpus Christi, Aug. 6, 2007, no pet.). Ordinarily, a court should not penalize a party's assertion of the privilege. Id. A party may not, however, use the fifth amendment privilege as a sword. Texas Department of Public Safety Officers' Assoc. v. Denton, 897 S.W.2d 757 (Tex. 1995).
The Fifth Amendment Applies to DocumentsTexas courts appropriately recognize that the fifth amendment protection also protects an individual from producing incriminating documents under certain circumstances. Specifically, an individual is protected from producing incriminating documents if: (i) the individual personally wrote the incriminating documents or directed another to do so; (ii) the incriminating documents are in the individual's actual or constructive possession; and (iii) the individual holds the incriminating documents in his individual capacity. Stevens v. Beard, 653 S.W.2d 908 (Tex. App. -- Amarillo 1983, no writ).
Beard, however, substantially relied upon U.S. v. Davis, 636 F.2d 1028 (5th Cir. 1981), authority that is now questionable. Specifically, in the subsequent decision in U.S. v. Doe, 465 U.S. 605 (1984), United States Supreme Court considered whether the fifth amendment privilege applied to the business records of a sole proprietorship. The responding party in Doe asserted that the fifth amendment creates a "zone of privacy" that protects an individual and his personal records from compelled production. In largely rejecting this concept, the United States Supreme Court held that the Court had:
"never, on any ground, personal privacy included, applied the fifth amendment to prevent the otherwise appropriate acquisition or use of evidence, which, in the court's view, did not involve compelled testimonial self-incrimination of some sort."
Doe, 465 U.S. at 611. The United States Supreme Court continued and held that, if the party asserting the fifth amendment privilege has "voluntarily compiled the documents, no compulsion is present and the contents of the documents are not privileged." Id. at 612. Subsequently, the United States Supreme Court held that a court can compel an individual to produce documents even if they contain incriminating assertions of fact, if the creation of those documents was not "compelled within the meaning of the privilege." U.S. v. Hubbell, 530 U.S. 27, 35-36 (2000).