Open Issue: Can Leading Questions Be Based Upon A Good Faith Basis To Ask Them When The Fifth Amendment Privilege Is Asserted?

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While the general rule allows leading questions as long as there is a good faith basis to ask them, the Eleventh Circuit notes an open issue whether the same standard applies to a witness who is known will invoke the Fifth Amendment privilege against self-incrimination, or whether the questions much be based upon “other independently admissible evidence that corroborated them,” as required in the Ninth Circuit, in Coquina Investments v. TD Bank, N.A., _ F.3d _ (11th Cir. July 29, 2014) (No. 12-11161)

Trial courts can control the use of leading questions under FRE 611(c). It is generally accepted that counsel must have a good faith basis to ask the leading question. Does this same standard apply when it is known that the witness will assert his Fifth Amendment privilege against self-incrimination? The Eleventh Circuit was recently asked to look at this question.

Trial Court Proceedings: Allowing Leading Questions

In the case, plaintiff Coquina Investments (“Coquina”) brought an action against defendant TD Bank, N.A. (“TD Bank”) to recover more than $6.7 million which were lost after a Ponzi scheme collapsed. The fraud was perpetuated by attorney Rothstein. The bank had handled the investments in the scheme.

At trial, the bank’s former regional vice president, Frank Spinosa, was called by the plaintiff. A series of leading questions was asked of the vice president, including:

  • “Mr. Spinosa, did Scott Rothstein give you a manila envelope filled with $50,000 cash . . . at the Bova Restaurant on Las Olas Boulevard in or around August of 2009?”
  • “Did Scott Rothstein approach you, in 2009, to make sure that the Weston branch manager, Rosanne Caretsky, was a quote, ‘player,’ who could be trusted in connection with his fraud scheme?”

  • “Did you tell Scott Rothstein that she was a player?”
  • “[D]id you tell Scott Rothstein that he had your permission to sign your name when you were unavailable?”

The bank objected that these questions were impermissible because they “were not corroborated by independent evidence in the record.” Additionally, because the witness asserted his Fifth Amendment privilege against self-incrimination, the jury was permitted “to draw adverse inferences from his refusal to respond to those questions.” Coquina Investments, _ F.3d at _.

The trial court allowed the leading questions after concluding that plaintiff’s “counsel had a good-faith basis for the questions.” After the jury returned a favorable verdict for the plaintiff, on appeal the bank claimed that “because Coquina’s counsel knew that [witness] Spinosa would invoke the privilege against self-incrimination, Coquina’s counsel could not ask leading questions in the jury’s presence unless he could produce other independently admissible evidence that corroborated them.” Coquina Investments, _ F.3d at _.

Eleventh Circuit Review: Good Faith Basis For Questions Was Sufficient

The Eleventh Circuit affirmed the use of the leading questions. The circuit noted that it generally was accepted that a good-faith basis is sufficient to ask leading questions “[i]n contexts other than invocation of the Fifth Amendment.” The circuit cited to the following case examples:

  • Fourth Circuit: United States v. Guay, 108 F.3d 545, 552–53 (4th Cir. 1997) (concluding that “an official investigative report, which was filed with the court under seal, . . . gave the prosecutor a good-faith basis for asking the questions”)
  • Seventh Circuit: United States v. Beck, 625 F.3d 410, 418 (7th Cir. 2010) (noting “definitive proof” is not required)

  • Eighth Circuit: United States v. Tucker, 533 F.3d 711, 714–15 (8th Cir. 2008) (allowing the use of an out-of-court testimonial statement as a good-faith factual basis for a line of inquiry)

  • Eleventh Circuit: United States v. Crutchfield, 26 F.3d 1098, 1102 (11th Cir. 1994)

Given this authority, to what extent should the Fifth Amendment of the assertion of privilege make a difference? The bank cited to Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000), where the Ninth Circuit held that an “adverse inference can only be drawn when” silence is based upon “independent evidence . . . of the fact to which the party refuses to answer.” According to the Ninth Circuit, since “the assertion of the privilege necessarily attaches only to the question being asked and the information sought by that particular question,” each “specific fact being questioned” had to be “corroborated by other evidence.” Id. at 1265, 1266 n.2.

The Eleventh Circuit found it unnecessary to “decide whether to adopt Doe as the law of this Circuit.” There were only a few questions in two hours of testimony that were uncorroborated by independent evidence and the defendant’s substantial rights were not affected. As the circuit explained, since:

[t]he questions relate to acts that Spinosa allegedly performed to assist Rothstein in his Ponzi scheme and benefits that Spinosa allegedly received in return…. [Therefore,] the only negative inferences that could have been obtained from Spinosa’s refusal to answer those questions were that Spinosa committed those acts and received those benefits…. Because the only adverse inferences that could have been drawn from Spinosa’s refusal to answer the questions implicating the alleged error were essentially duplicative of other questions amply supported by properly admitted evidence, any error by the district court in allowing Coquina to ask those questions and in authorizing the jury to draw negative inferences therefrom is harmless. Cf. Drew P. v. Clarke Cnty. Sch. Dist., 877 F.2d 927, 931–32 (11th Cir. 1989) (holding that the evidence at issue, “even if improperly admitted, w[as] merely cumulative of other evidence and therefore [its] admission was not reversible error”).

Conclusion

The Coquina Investments case highlights an open issue on the use of leading questions when the Fifth Amendment is asserted. Ultimately, the merits of the Ninth Circuit position (requiring independent evidence) were not necessary to resolve.

For further discussion of the Fifth Amendment issue, see Circuit Consensus: Drawing An Adverse Inference From A Nonparty Witness's Invocation Of The Fifth Amendment Privilege.

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Photo Description: Forsyth Street Entrance to the Elbert P. Tuttle Court Of Appeals Building, Eleventh Circuit Court of Appeals, Atlanta, GA. Learn more about the courthouse.

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