In civil rights action against police officer for injuries suffered during traffic stop, Fifth Circuit concludes error in excluding invocation evidence was not harmless on excessive force claim which turned on credibility issues, in Hinojosa v. Butler, 547 F.3d 285 (5th Cir. Oct. 23, 2008) (No. 07-50566)
In criminal cases, no adverse inference may be drawn when a defendant asserts the Fifth Amendment Privilege Against Self-Incrimination. See, e.g., Carter v. Kentucky, 450 U.S. 288, 301 (1981) (In a criminal trial, “a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify.”).
However, different rules apply in civil cases, as the trial court may decide whether to allow the jury to draw an adverse inference when a party asserts the Fifth Amendment privilege. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (noting “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them”). The issue of allowing the jury to consider a party’s invocation of the Fifth Amendment was reviewed in a recent civil case considered by the Fifth Circuit.
Plaintiff Hinojosa brought a civil rights claim against defendant officer Butler and city officials for injuries he suffered after a traffic stop. When Officer Butler attempted to pull over a car during a traffic stop at 2 a.m., initially driver Hinojosa did not stop. The parties disputed what transpired after the car stop. Hinojosa claimed that after he heard a load noise against the window, he bolted from the car fearing for his safety. Officer Butler followed and eventually detained the driver, who was banged up, bruised and had a broken finger. The driver was arrested and charged with evading arrest. After the civil rights action was filed, the district court granted summary judgment for other named defendants and on one claim, leaving for trial solely the claims against Butler in his official and individual capacities. Before trial, defendant Butler moved to exclude evidence concerning his prior conduct submitting false reports, a complaint which was made regarding his on duty conduct, and his resignation. The trial court learned Butler was expected to assert his Fifth Amendment privilege against self-incrimination during questions about this prior conduct. The trial court ultimately directed that the plaintiff examine the officer first outside the presence of the jury. Butler asserted the Fifth Amendment when he was asked “whether he was honest in claiming that someone pointed a gun at him in justifying firing his weapon, whether he issued a citation to the wrong individual in order to avoid issuing a citation to a City employee, and whether the investigations into these incidents played any role in his decision to resign from the SAPD.” Butler, 547 F.3d at 290-91. The trial court precluded the plaintiff from this cross-examination during the trial. The jury ruled in favor of Butler. On appeal, Hinojosa claimed the trial court erred in “exclud[ing] from evidence a witness’s Fifth Amendment invocation on the sole basis that the jury might draw adverse inferences from his silence.” Butler, 547 F.3d at 291.
According to the Fifth Circuit, the trial court misapplied the proper legal standard by “conflat[ing] the standard governing a defendant’s invocation in the criminal context with the standard applicable in the civil context, and assume[ing] that Butler’s planned invocation ipso facto foreclosed cross-examination before the jury on his prior conduct.” Butler, 547 F.3d at 292 (footnote omitted). The circuit concluded the trial court erred in excluding the evidence as it was admissible under FRE 608(b).
The Fifth Circuit considered the facts of the Hinojosa case against three of its prior opinions. Under these cases, a trial court can weigh any undue prejudice from the invocation of the Fifth Amendment privilege in a civil trial under FRE 403, which may be accounted for by the particular facts of the case. The three cases included:
- Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 674-75 (5th Cir. 1999) (Where corporate representative “never cooperated with Plaintiffs,” trial court “abused its discretion in excluding the evidence of [corporate representative] Mr. Barrett's invocation of his Fifth Amendment privilege.”; distinguishing Harrell and Farace)
- Harrell v. DCS Equipment Leasing Corp., 951 F.2d 1453, 1465 (5th Cir. 1992) (affirming exclusion of defendant’s initial invocation of the Fifth Amendment privilege since the questions were answered after a court order and the risk of unfair prejudice was high; “The potential probative value of Trupin's invocation of the Fifth Amendment is further reduced by the fact that he subsequently answered all of the questions. The potential prejudice in revealing the invocation of the Fifth Amendment is high, because the jury may attach undue weight to it, or may misunderstand Barry Trupin's decision to invoke his constitutional privilege. The ruling of the trial court was well within his discretion.”) (footnote omitted)
- Farace v.Independent Fire Insurance Co., 699 F.2d 204, 210-11 (5th Cir. 1983) (any error in excluding evidence of the plaintiff’s initial invocation of the Fifth Amendment was harmless; “Here, the plaintiff's failure to cooperate was limited to an initial refusal to answer the fire marshal's questions. The defendant concedes that the plaintiff cooperated fully with the defendant in its investigation. Under these circumstances, the initial invocation of the fifth amendment may have had little probative value, while the potential for the jury's misunderstanding of the plaintiff's decision to invoke his constitutional rights could well have resulted in unfair prejudice to Mr. Farace.… The defendant had ample opportunity to impeach its witness by other means. The defendant succeeded in presenting evidence that Joseph Farace had had prior experience with the criminal authorities: he had pleaded nolo contendere to criminal charges concerning stolen cases of beer. It also presented extensive evidence concerning the plaintiff's allegedly precarious financial position. Under these circumstances, we will not reverse the trial judge's decision to exclude further impeachment testimony of limited probative value.”)
Ultimately, the Fifth Circuit concluded the facts of Hinojosa were closer to Curtis rather than Harrell and Farace, “where the witness’s behavior subsequent to the invocation greatly decreased the invocation’s probative value.” Butler, 547 F.3d at 293. Because the excessive force claim turned on the defendant’s credibility, the error in excluding the evidence was not harmless. A new trial was ordered on the excessive force claim. In contrast to the excessive force claim, the circuit concluded the plaintiff failed to show the exclusion of the invocation of the Fifth Amendment privilege evidence would have affected the jury verdict on the deliberate indifference claim.
As Hinojosa suggests, normally evidence concerning a civil party’s invocation of the Fifth Amendment privilege may be admitted where the party did not cooperate or answer questions during the case. The probative value of the invocation evidence must be weighed by the trial court against any unfair prejudice under FRE 403. When the invocation evidence is admitted, the jury is allowed to draw an adverse inference concerning the assertion of the privilege.
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