Defense counsel has called his client, Mr. Smith, to the stand. Plaintiff’s counsel objects and asks to approach the bench.
The court: “Counsel, please approach.”
Plaintiff’s counsel: “Your Honor, I object to Mr. Smith’s desire to now testify about the underlying facts of the case in light of his invocation of his Fifth Amendment right against self-incrimination during the discovery phase of this case.”
Defendant’s counsel: “Your Honor, Mr. Smith during the discovery phase was confronting criminal charges based upon the same underlying facts of this civil case. Smith couldn’t respond to interrogatories or deposition questions while his freedom was at stake. Now the criminal case has been resolved, and Smith is able to testify.”
The court: “Counsel, I’m going to have to review the case law on this issue. Let’s take a brief recess.”
Will the court sustain the objection? Most likely the answer is yes.
While there is no bright line rule that controls situations like this, federal and state courts have established what is known as the “midnight witness rule.” Developed through many cases over the years, this “rule” effectively prevents a civil litigant from putting on the stand at trial a surprise witness who had previously invoked his or her Fifth Amendment privilege during the discovery phase.
In the annals of Maryland case law, Kramer v. Levitt, 79 Md. App. 575, 588 (1989), perhaps best articulates the reasoning behind the midnight witness rule. The court held that “when a defendant in a civil action pleads his privilege against self-incrimination in response to discovery requests, the defendant is prohibited from testifying at trial on matters pertaining to these requests.”
The Kramer court added that “if a party is free to shield himself with the privilege during discovery, while having the full benefit of his testimony at trial, the whole process of discovery could be seriously hampered.”
Faith v. Keefer
Kramer, however, is not the last word on the subject. In Faith v. Keefer, 127 Md. App. 706, 724 (1999), the Court of Special Appeals made it crystal clear that an individual who invokes his Fifth Amendment privilege is not “forever precluded from giving testimony in any form about the previously undisclosed matter.” (Emphasis in original.)
In Faith, the plaintiff’s wife had been killed while a passenger in a car driven by the defendant Keefer, who was allegedly intoxicated and speeding. As a result of the accident, Keefer was charged with various crimes in addition to being named as a defendant in the civil suit filed by the decedent’s husband and children.
At the outset of Keefer’s civil deposition, his attorney noted that Keefer intended to invoke the Fifth Amendment because of the pending criminal charges, and clearly stated that at the conclusion of the criminal matter his client would be available to answer questions. Keefer’s attorney had notified opposing counsel of this position well before the deposition.
After the conclusion of the criminal matter, and four days after the close of discovery, Keefer’s attorney wrote to opposing counsel that Keefer was available for deposition. Keefer also provided answers to interrogatories. But the plaintiff opted not to depose Keefer.
Almost a month after Keefer’s offer to be deposed, the plaintiff filed a motion in limine that sought to exclude Keefer’s testimony and belated interrogatory answers because he had earlier invoked his Fifth Amendment privilege. The trial court denied the plaintiff’s motion, finding that the plaintiff was not prejudiced by the late answers. The trial court’s decision was affirmed on appeal.
The Court of Special Appeals identified several key factors that supported the trial court’s decision to allow Keefer’s belated testimony, including:
— Keefer was seeking a relatively brief delay in discovery, until the resolution of his pending criminal charges;
— Keefer advised the plaintiff of his intent to assert the privilege for a limited time in advance of the deposition; and
— Keefer offered to resume the deposition when the criminal charges were resolved.
Importantly, the Faith court noted that the discovery process was not “seriously hampered” by a deponent asserting his Fifth Amendment privilege when “it [was made] clear at his deposition in February of 1998 that he intended to rely on his privilege only during the pendency of the criminal charges.”
In the scenario described above, since the defense counsel did not attempt to comply with Faith and notify plaintiff’s counsel in advance that Smith would testify at trial, the court will not allow Smith to testify. Had defense counsel notified plaintiff’s counsel before trial that Smith was prepared to either waive or abandon his Fifth Amendment right against self incrimination, the decision may or may not be different. The ruling would be fact-specific and depend on the circumstances.
Practice tip
When your client is confronted by the need to exercise the Fifth Amendment right against self incrimination in a civil case while a parallel criminal case is pending, consider the discovery deadline and the proposed trial date in the civil case. Notify opposing counsel in writing and by motion that your client intends to invoke his or her Fifth Amendment privilege.
You should also make it clear to opposing counsel that your client will assert this privilege until the criminal matter has been resolved, which includes the appeal process, if that is a factor.
The key, as described in Faith, is that as long as your adversary has time to depose your client before trial, the discovery process will not be “seriously hampered,” and you can keep the option of having your client testify at trial.
If your troubled client waits until the eve of trial to waive his or her Fifth Amendment privilege, Maryland law would support a trial court’s decision to bar the testimony, thus invoking the so called “midnight witness rule.”