USA Law and Practice Contributed by: Steven Molo, Robert Kry, Megan Cunniff Church and Walter Hawes, MoloLamken LLP
• the communication is testimonial – the act of pro - ducing documents may be considered testimonial if the act of production is incriminating in itself, because it establishes the existence of the docu - ments, the producer’s possession of the docu - ments or the authenticity of the documents; • the testimony is compelled – for example, informa - tion or documents sought by a subpoena or court order would be considered compelled testimony, and compelled testimony also encompasses responding to questions during an investigation, at a deposition or at trial; and • the testimony is self-incriminating – in other words, the testimony would supply evidence, or lead to the discovery of evidence, that could be used to prosecute the individual for a crime. The self-incrimination requirement means that indi - viduals who have received immunity or a pardon for a crime, or who have already been convicted and sen - tenced, may not invoke the Fifth Amendment to avoid giving testimony. Such testimony could not be used to prosecute the individual, and thus is not incriminating. Consequences of Invoking the Fifth Amendment The consequences of invoking the Fifth Amendment differ in criminal and civil cases. In a criminal case, a defendant’s silence or refusal to testify on Fifth Amendment grounds cannot be used as evidence. A prosecutor cannot make the argument that the defendant’s silence implies guilt. In a civil case, however, the judge or jury can draw an adverse inference from a party’s invocation of the Fifth Amendment. The individual’s silence can be interpret - ed to support liability. As discussed in 2.5 Criminal Redress , that different treatment is a complicating factor in the case of par - allel civil and criminal proceedings. It may lead to a stay in the civil case until the criminal case is resolved. Complications in the Corporate Context The Fifth Amendment’s self-incrimination clause does not apply to corporations. As a result, a corporation may not refuse to comply with a discovery obligation or to answer questions on Fifth Amendment grounds,
and can be compelled to provide testimony against itself. When a subpoena requests corporate records, those records must be produced, even if the corporate representative who is facilitating the response would be personally incriminated by that information. A corporate representative can invoke the Fifth Amendment personally, and their silence cannot be used against them in a criminal matter. An employee may invoke the Fifth Amendment in response to a subpoena for oral testimony, even in their capacity as an employee of the corporation. In both cases, however, the silence can lead to an adverse inference to support the liability of the cor - poration. 6.2 Undermining the Privilege Over Communications Exempt From Discovery Despite the broad discovery procedures available in civil litigation in the United States, a foundational prin - ciple of the legal system is that the attorney-client privilege protects from disclosure of confidential com - munications between attorneys and clients made for the purpose of seeking or providing legal advice. This privilege promotes open and honest communication between attorneys and their clients. Attorney work product – documents containing an attorney’s thoughts, impressions, opinions and legal conclusions – is also protected from discovery in most situations, although to a lesser extent than an attor - ney-client communication. The work product doctrine also provides protection for materials prepared by or for a party in anticipation of litigation. The Crime-Fraud Exception The attorney-client privilege does not apply to com - munications between the lawyer or client made for the purpose of committing or continuing a crime or fraud. This is known as the “crime-fraud exception”, and it prevents the abuse of the attorney-client privilege that would otherwise undermine the administration of jus - tice. The same exception applies, in most respects, to the work product doctrine as well. Courts construe the crime-fraud exception narrowly. The party invoking it must show two elements:
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