News of the last few weeks has prompted me to return to two issues I’ve discussed here before: parallel proceedings and the Fifth Amendment. This time around, the Fifth Amendment issue is not double jeopardy, but instead the constitutional protection against compulsory self-incrimination.
Remember parallel proceedings? By that I mean the government conducting criminal and civil investigations of the same or similar conduct, and bringing related criminal, civil, or administrative enforcement proceedings around the same time. This creates all kinds of problems for defendants, including the difficulty and expense of fending off legal challenges on several fronts and the care needed to ensure that steps taken responding to one enforcement action don’t bite you in the other.
Among the most important dangers are those stemming from offering testimony in a civil or administrative proceeding. You see, “pleading the Fifth” and refusing to answer questions that might incriminate you doesn’t work the same way in civil and administrative settings that it does in the criminal context.
In a criminal trial, juries are not supposed to hold it against you if you refuse to testify on your own behalf or otherwise exercise your Fifth Amendment rights, and prosecutors aren’t even allowed to bring your refusal to testify to a jury’s attention. That doesn’t stop some people from assuming that those exercise their constitutional rights are guilty, but it’s a pretty powerful protection. You can still assert your Fifth Amendment rights in other settings, like a civil deposition. But there are consequences. U.S. jurisdictions almost always either permit (or even require) the court or the jury to draw an adverse inference—in other words to assume that had you answered the question, the answer would have been unfavorable to your position. This can be really bad, particularly in some cases where the potential civil damages or administrative penalties can be as devastating as a criminal conviction. It’s one of the reasons defendants often try to get out of situations in which they could be forced to choose between asserting their Fifth Amendment rights and facing the civil consequences of the adverse inference, or else waiving the right and offering testimony that could get them in trouble on the criminal side.
When I looked at this issue in January, I threw some cold water on the notion of shutting down a government civil enforcement proceeding while criminal proceedings are possible or pending:
The Supreme Court explained in United States v. Kordel that the government is free to conduct parallel civil and criminal investigations without violating a target’s due process rights, as long as the government acts in good faith. Kordel ruled that to mandate a stay of parallel civil proceedings while the criminal case progressed would undermine the government’s ability to enforce federal law.
That’s still true. But I offered a glimmer of hope as well, writing that “[o]ne place you may have slightly better odds in halting a civil case is in litigation initiated by private plaintiffs . . . .” It looks like someone very much in the public eye has had just such luck. Remember Michael Cohen? Sure you do. He’s been all over the news, and he’s apparently the target of a criminal investigation probing his taxi business, his payment to Stephanie Clifford that was made without the President knowing (until he did know, until he didn’t?), and as of yesterday, maybe some other transactions as well. Well, Mr. Cohen got a rare piece of good news on April 27th, when a California federal court delayed the private litigation initiated by Ms. Clifford for 90 days. The court reasoned that Mr. Cohen’s Fifth Amendment rights—which he indicated he planned to assert in the private suit—were heavily implicated because of the apparent overlap between the subject of the criminal investigations and the Clifford suit.
I’m not sure what the court will do when the 90-day stay is up. While an extension of the stay may well be granted, courts are reluctant to indefinitely pause civil proceedings out of concern for criminal cases that may never conclude. Whatever happens, it’s hard to imagine someone in these circumstances not asserting the right against self-incrimination even if doing so costs a civil judgment: juries in criminal cases have proven more than willing to rely on damning testimony from civil cases. An example outside the white collar criminal context is Bill Cosby’s recent conviction for sexual assault. Critical to at least one juror’s assessment of the evidence was Cosby’s admission in a 2005 civil deposition that Cosby had drugged women in the past. I don’t know why Cosby didn’t assert his Fifth Amendment rights in that deposition, or even whether his lawyers advised him to do so. But it may have affected the outcome of his recent criminal trial.
Clients and their lawyers should carefully weigh any decision to offer potentially incriminating testimony against the very real dangers of criminal exposure later. Look out for future posts exploring whether the Fifth Amendment right against self-incrimination applies to non-citizens abroad (and whether the answer has practical consequences for U.S. criminal proceedings), and additional noodling on parallel proceedings.