Monday, March 7, 2016

Judge Nealon Tackles Assertion of Privilege Against Self-incrimination at Depositions

In a decision handed down a few months back in the case of Rogers v. Thomas, No. 2012-CV1464 (C.P. Lacka. Co. Nov. 25, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the right of a Defendant to assert a Fifth Amendment privilege against self-incrimination in a case brought by the estate of a shooting victim against the adult shooter and his father.  

In this matter, the estate of the shooting victim filed a wrongful death suit against the adult shooter and the shooter's father, alleging that the gun used during the shooting was owned by the father, that the father was present at the time of the shooting, that the father knew that his son had a mental disability which rendered his unfit to use a gun, and that the father allegedly knew that the son had previously harmed or threatened another person with the gun.   The father filed a Motion for Summary Judgment on the liability issues presented. 

The court noted that, during his discovery deposition, the son asserted his Fifth Amendment privilege against self-incrimination and declined to answer any questions concerning the facts at issue.  

However, Judge Nealon noted that the son later testified about the same facts during his criminal trial and was convicted of voluntary manslaughter.  The court also noted that the Plaintiff had exhausted his direct appeal in the criminal proceedings and, as a result, the son’s criminal prosecution had been concluded.  

The father filed a Motion for Summary Judgment based, in part, upon the son’s criminal trial testimony.   The estate opposed the Motion for Summary Judgment on the ground that it was entitled to adverse inference based upon the son’s assertion of his Fifth Amendment privilege and that, therefore, the Defendant's Motion should be denied and the case be allowed to proceed to a civil jury trial.

Judge Nealon reasoned in his Opinion that the Supreme Court of Pennsylvania has held that a Plaintiff cannot satisfy its burden of proof in a civil case solely in reliance upon a Defendant’s failure to testify based upon the assertion of a Fifth Amendment privilege.  

However, the court in this matter went on to rule that, since the son’s criminal prosecution had concluded such that the son was no longer facing the threat of further criminal prosecution or self-incrimination, the son was found to no longer possess the right to refuse to answer the Plaintiff’s deposition questions.  

Accordingly, Judge Nealon ordered the parties to conduct a second deposition of the son and to thereafter submit the deposition transcript along with their supplemental briefs so that the summary judgment motion could be decided at that later point in time.

Anyone wishing to review a copy of this decision by Judge Nealon may click this LINK.

 

 

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