Manatt Litigation Partner Ronald Blum and Associate Rebecca Kimmel wrote an article for Law360 about the right of a witness both to testify and invoke the Fifth Amendment privilege against self-incrimination in the same litigation, analyzing a recent Sixth Circuit decision that explores this novel issue and arose from the Flint water crisis.
The authors describe the civil and criminal litigations involving five former Michigan government officials resulting from the Flint River’s contamination of the city water supply. “Despite the prior criminal charges and comments by prosecutors of ongoing investigations, the five former government officials testified at their depositions. None invoked his Fifth Amendment privilege against self-incrimination,” the authors write. When they were subpoenaed to testify at a trial, however, the former officials moved to quash and sought to invoke their Fifth Amendment privilege.
After the defendants appealed the trial court’s denial of their motions to quash, the Sixth Circuit issued a decision on mootness and whether the officials could invoke the privilege, each of the three judges writing separately. Blum and Kimmel explain the opinion of each judge, including Judge Griffin's lead opinion, which held that “testifying at a deposition does not waive the right to invoke the Fifth Amendment privilege at a later trial in the same civil case.” The authors conclude that these opinions will be significant in Fifth Amendment jurisprudence, but will likely have fewer practical implications: “Although providing legal argument for clients who find themselves in the former officials' position, the opinion will likely not change strategy or legal advice to clients confronting parallel proceedings.”
Read the full article here.