An Appellate House Divided
The Sixth Circuit’s panel decision was divided. Judge Richard Allen Griffin announced the judgment of the court and wrote several portions of the opinion. Judge Karen Nelson Moore joined him in finding that the court had jurisdiction to consider the case. They both concluded that the case was not moot because the government officials will be called to testify at future trials, so it is “probable that the dispute will recur.” Further, they found that the time frame “is far too short for the parties to obtain complete review.”
But Judge Moore dissented to another part of the decision. “At bottom, our choices have consequences,” Judge Moore stated. She concluded that the government officials decided to waive their privileges against self-incrimination at their depositions despite knowing that their testimony could be self-incriminating and that criminal investigations were ongoing. Hence, Judge Moore found that the officials had waived their Fifth Amendment privileges for the civil trial.
Judge Amul R. Thapar also wrote a separate opinion, concluding that because the underlying trial was over, the case was moot. But because the rest of the panel held that the appellate court had jurisdiction, Judge Thapar also considered the merits. On that question, he agreed that the government officials’ waiver extends only through cross-examination.
Section Leaders See Reason to Be Cautious
“The Sixth Circuit’s reasoning is sound,” states Joseph V. Schaeffer, Pittsburgh, PA, cochair of the Litigation Section’s Pretrial Practice & Discovery Committee. The case may help witnesses make “more informed decisions,” he predicts. “Walters will provide more of a bright-line rule when witnesses are deciding whether to testify and there is the threat of criminal liability in the ether. Still, it is very case specific,” Shaeffer cautions.
Other Section leaders echo the need to be cautious about potential waiver of the Fifth Amendment. “Even though the Sixth Circuit said otherwise, clients should invoke their Fifth Amendment rights at deposition unless there is a strategic reason not to do so,” advises Donald W. Davis Jr., Akron, OH, cochair of the Section’s Trial Practice Committee.
In Walters, the Sixth Circuit noted that changed circumstances following the depositions led the government officials to be more apprehensive of criminal prosecution. In the court’s view, this provided additional justification for allowing the witnesses to assert the privilege at trial. But Section leaders are not convinced that all other situations will get the same treatment. “You do not know how the other circumstances involved in your case will be interpreted,” Davis counsels.
Attorneys Must Consider Potential Criminal Liability
“Attorneys should not be myopically focused on their current case but should always have the potential implications for the clients in the back of their minds,” Schaeffer notes. There are civil cases where the client could run the risk of potential criminal liability. There are a few recent notable cases about corporate executives or corporations making statements that “end up being part of criminal charges down the line,” he observes. “The overarching lesson is that when you have a litigation matter, you need to—at least—pause and think about whether the client may be saying something that creates criminal liability,” counsels Schaeffer.
“There are a lot of criminal cases that spin off from civil cases,” notes Keith H. Rutman, San Diego, CA, cochair of the Newsletter and Website Subcommittee of the Section’s Trial Evidence Committee. “If you are an attorney handling a civil case with potential criminal exposure, then you need to consult with a criminal attorney. And if there is any potential issue, urge the client assert the Fifth and cover himself,” Davis emphasizes.
Section leaders also advise that when it comes to protecting a client against self-incrimination, nothing should be left to chance. “If your client is going to take the Fifth, have a script written out for them and have them stick to it,” advises Rutman.