Sixth Circuit Holds Deposition Testimony Does Not Waive Fifth Amendment Right Against Self-Incrimination

Today a divided panel of the US Court of Appeals for the Sixth Circuit held that several government officials had not waived their Fifth Amendment rights against self-incrimination by answering questions in pre-trial depositions. Judge Griffin wrote for the court, joined in part by Judges Thapar and Moore (though each on different parts). The three judges each wrote their own opinions, and broke down this way:

GRIFFIN, J., announced the judgment of the court and delivered the opinion of the court with respect to the Introduction and Parts II, III.G., and IV, and delivered an opinion with respect to Parts I, III, III.A , B, C, D, E, and F. THAPAR, J. (pp. 42–56), delivered a separate opinion concurring in part and in the judgment. MOORE, J. (pp. 57–76), delivered a separate opinion concurring in part and dissenting in part.

Here is how Judge Griffin’s opinion for the Court begins:

One of the fundamental liberties enshrined in the Fifth Amendment to our Constitution is the right not to be compelled to bear witness against oneself. The inquisitorial abuses of the Star Chambers eventually led to the inclusion of this right in our Bill of Rights. This bedrock privilege originates from the maxim “nemo tenetur seipsum accusare,” that “no man is bound to accuse himself.” In the present case, the district court ordered the appellant state officials to testify at trial—to be witnesses against themselves—despite their invocation of their right against self-incrimination. According to the district court, appellants “waived” their right not to be witnesses against themselves at trial by voluntarily submitting to a discovery deposition.

We disagree. We conclude that the district court erroneously held that testifying at a pretrial deposition waives invocation of the privilege at a later trial in the same civil case. In doing so, we hold that a Fifth Amendment waiver does not extend to trial under these circumstances. Thus, we vacate and remand.

And from the close of his opinion:

In our adversarial justice system, a party has the responsibility to “produce the evidence against [another] by its own independent labors.” Miranda v. Arizona, 384 US 436, 460 (1966). The Fifth Amendment is thus grounded on this “overriding thought:” that a witness “is guaranteed the right ‘to remain silent unless he chooses to Speak in the unfettered exercise of his own will.”” Id. (quoting Malloy, 378 US at 8.). Appellants here voluntarily waived their privilege by sitting for their deposits, and appellees had the opportunity to determine the scope of that waiver through cross-examination. But once that testimonial event concluded, the Fifth Amendment again protected appellants, absent a further waiver. at their deposits.

Judge Thapar concurred in part and in the judgment, but disagreed that the case was not moot. Here is how his separate opinion begins:

This appeal presents two questions. First: Is this case moot? For the reasons below, I conclude it is and would hold we lack jurisdiction. But my colleagues hold we have jurisdiction, so we must proceed to the second question: Are appellants entitled to invoke their Fifth Amendment right to remain silent at trial, or did they waive that right by testifying at their depositions? Because appellants’ waiver extends only through cross-examination, appellants can invoke the Fifth Amendment when called to testify anew at trial. Thus, I agree with Judge Griffin on the bottom line. I write separately, however, to explain my thinking on both mootness and the merits.

And here is part of Thapar’s argument on the merits:

The text and history of the Fifth Amendment make clear that witnesses may invoke their right against compulsory self-incrimination when answering might expose them to criminal liability. And once a witness waives his right to remain silent, that waiver extends (1) only to the details of the specific transactions disclosed, and (2) criminal only through the end of crossexamination. By focusing on “proceeding” and policy concerns, courts have unjustifiably expanded the scope of waiver and contracted the protection of the right. Honoring the founders’ understanding today compels the conclusion that appellants may invoke the Fifth Amendment at trial. Such a conclusion would be uncontroversial then, as it should be now.

Judge Moore agreed with Judge Griffin on mootness, but dissented on the Fifth Amdnment waiver issue. Her opinion begins:

Tens of thousands of residents of Flint, Michigan were impacted by exposure to lead and other contamination in the city’s water supply. In the wake of what is now infamously known as the Flint Water Crisis, plaintiffs in this case, four minor children, brought civil suits against a group of public officials and two water engineering firms allegedly involved in the debacle. During discovery, plaintiffs deposed five officials who are the appellants in this case: former Governor Richard Snyder; his advisor, Richard Baird; two former City of Flint Emergency Managers, Darnell Earley and Gerald Ambrose; and the former City of Flint Director of Public Works, Howard D. Croft. All sat and answered questions for hours. None invoked their Fifth Amendment privilege against self-incrimination. After being deposed, however, these five officials were indicted on various charges stemming from the Crisis. That led each official to change their mind and invoke their Fifth Amendment privileges at the civil trial, which has since ended in a mistrial.

This interlocutory appeal raises the question of whether the fact that the appellants testedified in their respective depositions resulted in their having waived their Fifth Amendment privileges for the civil trial on the subject matter about which they previously testedified. The district court determined that they did. . . . Although I agree
with Judge Griffin that the issue is not moot, and concur in section II of his opinion, I write separately because I believe that the district court did not err in determining that the appellants waived their Fifth Amendment privileges. I therefore respectfully dissent.

Judge Moore closes:

Finally, I suggest how this imbroglio could have been avoided: by the appellants invoking their Fifth Amendment privileges against self-incrimination at their depositions. In countless civil depositions conducted around the country, such invocations have long been routine, and their nuances have long been routinely addressed by lower courts. . . . A witness waiving their Fifth Amendment privilege against self-incrimination is not a foreordained outcome of being deposed.

Rather, the calculations that go into whether a witness should invoke their Fifth Amendment privilege during civil depositions are themselves complex. If the witness testifies at the civil deposition only later to invoke that privilege in a subsequent criminal trial against them, then the witness runs the risk of being found unavailable and the transcript coming in under Federal Rules of Evidence 804(b)(1) or 804(b)(3), . . . or more simply under Federal Rule of Evidence 801(d)(2). . . . If instead the witness is a party and invokes their Fifth Amendment privilege during the civil deposition, then they risk an adverse inference being drawn against them in the civil trial that follows… . . .

These kinds of decisions are for the witness to make, presumably with advice from counsel. Once the decisions are made, it is not my prerogative at this stage to reweigh the risks and rewards that attend them. Rather, “[t]these choices have consequences.” Microfinancial, Inc., 385 F.3d at 78. This court must discern what the law demands those consequences to be. In the present case, I believe the effects are that the appellants waived their Fifth Amendment privileges in their depositions on the subjects to which they testedified, and these waivers apply also for the civil trial for which the appellants were deposed.

At bottom, our choices have consequences. The appellants decided to waive their privileges self-incrimination at their depositions despite knowing that their testimony could be self-incriminating and that criminal investigations into the crisis were ongoing. They understood the purpose for which they gave their deposition testimony. And yet still they chose not to invoke the privilege against self-incrimination. For the foregoing reasons, I would hold the appellants to their choices. Because the district court did not err in determining that the appellants waived their Fifth Amendment privileges, I would affirm. I respectfully dissent.

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