Federal Evidence Review

Ninth Circuit affirms exclusion of witness's trial testimony on a subject that the witness in a prior deposition claimed was privileged under the Fifth Amendment right against self-incrimination, in Nationwide Life Ins. Co. v. Richards, 541 F.3d 903 (9th Cir. Aug. 28, 2008) (No. 06-56562)

A dispute over the disbursement of a one million dollar insurance policy after a murder underscored how the Fifth Amendment Privilege Against Self-Incrimination cannot be selectively used as a shield.

After Bryan Richards was strangled to death, his wife submitted a claim on his life insurance policy. During the discovery phase of the dispute, his wife was asked about her involvement in the murder during her deposition. She asserted the Fifth Amendment privilege. Another man with whom she was romantically connected was convicted for the murder. During the bench trial, the wife testified and sought to explain that she had no involvement in the murder. The trial judge excluded this testimony since she had asserted the Fifth Amendment privilege against self-incrimination during her deposition on the same subject.

The Ninth Circuit affirmed the exclusion of the testimony after the Fifth Amendment privilege had been claimed on the same subject during her deposition. The circuit noted that generally a party cannot claim the privilege during depositions and testify about the same subject at trial. Nationwide Life, 531 F.3d at 910 (citing SEC v. Graystone Nash, Inc., 25 F.3d 187, 190, 191 (3d Cir. 1994) (“[B]ecause the privilege may be initially invoked and later waived at a time when an adverse party can no longer secure the benefits of discovery, the potential for exploitation is apparent.”; “The opportunity to combat the newly available testimony might no longer exist, a new investigation could be required, and orderly trial preparation could be disrupted.”); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir. 1989) (“A defendant may not use the fifth amendment to shield herself from the opposition’s inquiries during discovery only to impale her accusers with surprise testimony at trial.”)).

On the merits of the case, the circuit affirmed the disbursement of the insurance proceeds to the children of the deceased after the record supported the trial court’s determination that the wife was involved in the murder.

The Fifth Amendment privilege may arise as a trial issue in other contexts. As noted in recent blog posts, a party cannot normally call a witness merely to allow the jury to see the assertion of the Fifth Amendment Privilege, and the refusal of a witness to testify based on the Fifth Amendment Privilege does not necessary deprive the defendant of a Sixth Amendment Right To Present A Defense.