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Litigation News

Spring 2023, Vol. 48, No. 3

Court Rules Witnesses Can “Flop” on Fifth"

Sara Elizabeth Costello


  • Fifth Amendment is “proceeding specific” and could still be asserted at trial.
  • Government officials who testified at discovery deposition during the Flint Water Crisis could still invoke the Fifth.
  • But the ruling may be too fact-specific to protect clients in other situations from waiving Fifth Amendment privileges.
Court Rules Witnesses Can “Flop” on Fifth"
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Testifying at a discovery deposition does not stop a witness from later invoking his or her Fifth Amendment privileges and refusing to testify at trial. Walters v. Snyder reached this conclusion in a complicated case stemming from Michigan’s Flint Water Crisis. ABA Litigation Section leaders praised the appellate court’s reasoning in Walters but urge attorneys to be cautious about permitting clients—who might be facing potential criminal liability—to testify at depositions without invoking their Fifth Amendment rights. The Walters ruling may be too fact-specific to protect clients in other situations from waiving Fifth Amendment privileges.

Flint Water Crisis Litigation

Flint, Michigan, made a cost-saving switch and began using river water for its municipal water supply, and the city’s drinking water became contaminated with lead. This tragedy, known as the Flint Water Crisis, led to extensive civil and criminal litigation. In civil court, litigants filed claims against Michigan government officials and the engineering firms allegedly responsible for the city’s water plant and drinking water. The district court created a bellwether trial process to manage the litigation—the first was to begin in June 2021 (though it did not actually begin until February 2022), with additional trials following in October 2023 and January 2024. At the same time, criminal investigations into the defendants’ conduct were also progressing.

According to the Walters court, several government officials with “key roles” in the crisis gave “detailed deposition testimony” in the civil case without invoking their Fifth Amendment privilege against self-incrimination. Subsequently, the officials reached a settlement agreement with the plaintiffs. Thus, they were no longer parties in the civil litigation, which continued against the engineering firms. Later, the government officials were subpoenaed to testify at the trial. The officials moved to quash the subpoenas, arguing that the Fifth Amendment entitles them to a blanket immunity from any questioning at trial.

The U.S. District Court for the Eastern District of Michigan denied the motions to quash the trial subpoenas. Because the officials “are under criminal indictment for the very conduct at issue in this civil case, there is no question that they would ordinarily be entitled to their silence,” the district court noted. It held, however, that the government officials waived their Fifth Amendment privileges by testifying “on the same subject matter” at deposition. Relying on U.S. Supreme Court precedent, the district court held that a witness, in a single proceeding, may not testify voluntarily and then later invoke the privilege against self-incrimination when questioned about the details.

Deponents’ Waiver Does Not Apply at Trial

Describing the issue as “one of first impression,” the U.S. Court of Appeals for the Sixth Circuit concluded that the government officials could assert their Fifth Amendment privileges at trial. “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 court emphasized. When a witness waives his or her Fifth Amendment privilege, it is “proceeding-specific.” In other words, the “waiver applies throughout the proceeding in which the witness testifies,” the court explained.

From this premise, the Sixth Circuit held that a deposition and trial are separate proceedings for Fifth Amendment purposes. “The logic, justifications, and purpose underlying the Fifth Amendment support concluding that a single testimonial event is its own proceeding for purposes of a waiver,” the court summarized. It also found significant that the government officials faced “new risks” following their depositions, such as criminal indictments.

The Sixth Circuit declined to rule, however, on whether the government officials are entitled to a blanket assertion of their Fifth Amendment privileges. Noting that the district court had not yet ruled on that issue, the Sixth Circuit remanded the matter for further consideration.

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.


  • Farrah Champagne, “The Eleventh Circuit Allows a Nonparty to Invoke the Fifth Amendment Privilege,” Trial Prac. (Oct. 31, 2016).
  • Mitchell v. United States, 526 U.S. 314 (1999).