Wednesday, July 13, 2022

Court Addresses Circumstances Under Which A Deponent May Properly Assert Fifth Amendment Right Against Self-Incrimination


In the case of Sweet v. The City of Williamsport, No. 20-CV-00512 (C.P. Lyc. Co. June 27, 2022 Linhardt, J.), the court addressed the circumstances under which a civil litigant may properly assert his or her Fifth Amendment rights against self-incrimination at a deposition.

According to the Opinion, this case arose out of a fatal motor vehicle accident.

When the opposing parties requested the deposition of the Defendant driver, counsel for the Defendant driver advised opposing counsel that the Defendant driver would be asserting his Fifth Amendment rights against self-incrimination relative to any questions regarding the facts of the accident.

The opposing parties challenged the ability of the Defendant driver to assert his right against self-incrimination at the deposition, in part, due to the fact that the Defendant driver had already been perviously convicted of several summary traffic offenses arising out of the subject incident and that the provisions of 18 Pa. C.S.A. §110(1)(ii) would bar future prosecutions against the Defendant driver thereby vitiating the Defendant driver’s need to assert his Fifth Amendment rights at the deposition.

The opposing parties filed a motion to compel the Defendant driver to attend a deposition and to answer the questions that would be presented relative to the accident.    

In its Opinion, the court affirmed that, under §110, in most cases, a past conviction would bar a future prosecution based upon the same conduct or arising from the same criminal episode. The court noted that the Pennsylvania Supreme Court had recently confirmed that this rule applies even when the previous conviction was for traffic summaries rather than misdemeanors or felonies.

However, it was acknowledged by the court that there was an exception that allowed further prosections for situations in which evidence in support of an additional offense was not known to the prosecuting officer at the time of the commencement of the first criminal trial.

In this matter, the Defendant driver voiced a concern about the possibility of his being prosecuted for new charges arising out of the subject accident if his testimony at a deposition revealed evidence that would support new offenses not previously known by the prosecuting officer at the time of his trial on traffic summaries.

In that regard, the question became whether the Defendant driver had a reasonable basis to fear self-incrimination. In assessing this question, the court in this case noted that the Pennsylvania Supreme Court has stated that “for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of the circumstances that the witness is mistaken in the apprehension of self-incrimination."

The court concluded that the Defendant driver in this case did have a reasonable fear of self-incrimination and, as such, could not be compelled to testify at the deposition in the case without retaining the right to assert his Fifth Amendment rights. 

More specifically, the court noted that the prosecutor could interpret deposition testimony by the Defendant driver to show possible recklessness in the Defendant driver’s actions which could support additional criminal offenses in a matter where the prosecutor may have only been aware of conduct amounting to carelessness before the deposition was completed.

In its Opinion, the court emphasized that the Defendant driver need not establish what he might testify to at a deposition, and that the court could not obviously compel the Defendant driver to explain the factual basis of his fear of self-incrimination, as such a compulsion would pervert the Fifth Amendment right against self-incrimination. Rather, the court allowed the Defendant driver in this case to explain why, at least theoretically, his fear of self-incrimination was reasonable in an effort to establish that it is not “perfectly clear” that the Defendant driver was “mistaken in his apprehension of self-incrimination….”

After a review of the submitted arguments, the court ruled that the Defendant driver could not be compelled to complete a deposition at which he was not entitled to assert his Fifth Amended rights against self-incrimination. 

However, the court also noted that the parties were exploring the possibility of the Defendant driver securing an immunity agreement from the prosecutor at issue.

It was confirmed by the court that, if the Defendant driver secured an immunity agreement from the district attorney, the Defendant driver would have no further fear of future prosecution based upon any deposition testimony in which case the Defendant driver would be compelled to attend the deposition and not be permitted to assert his Fifth Amendment rights against self-incrimination.

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

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