1. I.              Introduction

The Fifth Amendment to the United States Constitution is widely known to provide United States citizens with the right to avoid self-incrimination.[i] This provision is commonly understood to afford individuals the right to “plead the fifth” in response to a question or demand which would otherwise legally compel their response if such response would tend to incriminate the individual in a criminal matter.

It is common for civil defense counsel to represent individuals in defense of alleged conduct that also gives rise to criminal liability. For example, a civil defense attorney may represent an individual who was driving under the influence of an intoxicant in a civil negligence lawsuit while the individual is also charged criminally for driving under the influence. In such circumstances, it is common practice for courts (though they are not required) to stay any litigation of the civil matter pending resolution of the criminal matter.[ii] 

However, this article will focus on ethical and practical considerations arising from situations where defense counsel represents an individual in a civil matter for conduct that could result in criminal charges, but where no criminal charging decision has been made. This article further assumes that an individual who is a defendant in a civil matter and may be subject to criminal prosecution is cooperating with civil defense counsel.[iii]

1. II.            Applicable Law and Guidance

The Fifth Amendments states, in relevant part:

No person shall be … subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself …

The Fifth Amendment “privilege extends to all court proceedings, civil and criminal.”[iv] “The privilege against self-incrimination exists whenever a witness has a real and appreciable apprehension that the information requested could be used against him in a criminal proceeding.”[v] The privilege “extends not only to testimony which would support a conviction but also to evidence which would furnish a link in a chain of evidence necessary to prosecution.”[vi] “It has long been recognized in Wisconsin that a person may invoke the fifth amendment in a civil case in order to protect himself from the use of such evidence against him in a subsequent criminal action.”[vii]

Wis. Stat. § 905.13 provides, however, that the privilege is not treated equally in civil and criminal actions:

905.13. Comment upon or inference from claim of privilege; instruction.

(1) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

(2) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(3) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

(4) Application; self-incrimination. Subsections (1) to (3) do not apply in a civil case with respect to the privilege against self-incrimination.

(Emphasis added.)

While juries are instructed in criminal matters that the invocation of this right should not be held against a defendant, they receive the opposite instruction in civil matters. The applicable criminal jury instruction provides:

A defendant in a criminal case has the absolute constitutional right not to testify. The defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner.[viii] 

By contrast, a court may provide a jury with the following instruction in a civil matter:

A witness, (name of witness), exercised the constitutional right not to answer (a question) (questions) on the ground that the answer(s) might tend to incriminate (the witness) (him) (her). You may find by this refusal to answer that the answer(s) would have been against the interest of (the witness) (him) (her).[ix]

The preamble to the Wisconsin Supreme Court’s Rules of Professional Responsibility provides, in part, that “As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications.” Therefore, an attorney—including a civil defense attorney—has the obligation to explain to a client the right to invoke his or her Fifth Amendment privilege.

1. III.          Representing an Individual in a Civil Action When Criminal Charges are Possible But Not Yet Brought

1. a.     The Charging Decision

Charging a crime is generally a two-step process. First, law enforcement conducts an investigation and makes a recommendation regarding what charges law enforcement believes should be filed to the correct prosecutorial unit. Second, a prosecuting attorney within that unit decides what, if any, criminal charges to file. If the prosecutor elects to file charges, he or she will draft a criminal complaint setting forth the criminal charges and the “essential facts” supporting the charges. Although this process seems relatively straight-forward, it is riddled with issues that can cause delay.

Oftentimes there are investigative delays for good reasons, such as trying to locate a critical witness, or bad reasons, such as internal disorganization. It is also common to have prosecutorial delays for a number of other reasons. The prosecuting attorney who reviews the evidence may ask for follow-up investigation by law enforcement or be too busy to promptly file charges. 

Although less common, law enforcement or prosecutors may also engage in strategic delays in hopes that the suspect will make an admission or some other mistake resulting in a stronger case for the State. If a civil case surrounding potential criminal allegations is ongoing, you should assume law enforcement and/or a prosecutor is watching the case to see what evidence is produced.

Pre-charging delays can, under some circumstances, amount to a Due Process Clause Violation. However, a motion to dismiss based upon pre-charging delay requires the defense to prove the defendant has suffered actual prejudice and the delay arose from improper motives. This high burden typically leaves the defense with only the criminal statutes of limitations to protect against stale prosecutions. 

1. b.    The Dilemma

For all of these reasons, civil defense counsel may find themselves in a position of representing an individual in defense of conduct that could result in criminal liability in the future. The civil defense attorney is then faced with the dilemma of successfully defending the civil action while preserving the individual’s rights under the Fifth Amendment. This can be especially problematic when no criminal charging decision has been made, and, therefore, counsel cannot address the issue by simply seeking a stay on the civil litigation until the criminal proceeding is complete. It may not be practical to delay litigation without knowing when—or if—criminal charges may ever be brought under criminal statutes with statutes of limitation several years into the future.

1. IV.          Strategies and Recommendations

Below are some strategies and recommendations that civil defense attorneys may wish to employ when representing an individual against whom criminal charges may be brought in the future. 

1. a.     Assert of Privilege in Answer

Preserving a client’s right to invoke his or her Fifth Amendment privilege starts with the answer to the civil complaint. It is wise to fully assert this privilege from the beginning of the case, while you are still analyzing how the threat of criminal charges may impact the defense. After admitting any basic background facts, potential answer language to the remaining allegations may be:

Answering all other allegations contained in the Complaint, the answering defendant invokes [his/her] Fifth Amendment privilege, which has the effect of a denial. See National Acceptance Co. of America v. Bathalter, 705 F.2d 924 (7th Cir. 1983).

Next, it is wise to include in the scheduling order a generous amount of time to amend pleadings to provide the opportunity to revoke the assertion of privilege and file a more substantive answer. While you can always later agree to waive privilege, it is not guaranteed that a judge will allow the defense to amend its answer if the time to do so pursuant to statute or the scheduling order has passed.[x] This poses the risk of plaintiff’s counsel attempting to introduce the assertion of privilege to a jury at trial, which is almost always prejudicial to the defense. 

1. b.    Analyze Issues/Impact on Case and File Appropriate Motions

Once you have taken steps to preserve your client’s right to invoke his or her Fifth Amendment privilege, it is important to carefully analyze how the assertion of the privilege will impact your civil case.

In some situations, an individual defendant’s invocation of his or her Fifth Amendment privilege may have almost no negative impact on a civil case. Take, for example, a death or severe injury caused by a motor vehicle accident in which the defendant driver was intoxicated and no criminal charging decision has been made as to reckless homicide, causing great bodily harm by operating while intoxicated, or a whole host of other potentially applicable criminal charges. If liability is conceded or very likely, defense counsel often chooses to admit liability in order to make the resulting jury trial only about damages. In doing so, the defense can obtain an order in limine excluding from evidence the defendant’s intoxication and other factors which are irrelevant to damages and may inflame the jury.

If criminal charges are possible, it will be important to analyze the impact of an admission of liability on your client’s potential future criminal case. Are the elements of the civil matter dissimilar enough from the potential criminal charges that an admission of liability in the civil matter will not operate as any admission in a subsequent criminal matter? For example, an admission of negligence and causation in a civil matter will not operate as an admission of all of the elements of criminal recklessness, which requires the prosecution to prove ordinary negligence to a higher degree.[xi]

In such cases, the civil defense attorney could admit only negligence and causation and deny the remaining factual and legal allegations. Since the only issue remaining for trial will be damages, this should be coupled with a motion in limine for an order excluding any evidence of the defendant driver’s conduct as irrelevant. Nonetheless, plaintiff’s counsel may want to depose the defendant driver on other bases, such as testimony regarding his or her perceptions of the plaintiff and things that may have been said or otherwise witnessed at the accident scene.

If the defendant driver is compelled to attend a deposition, you or the criminal defense attorney may counsel the individual to assert his or her Fifth Amendment privilege in response to any questions about the accident. If this occurs, plaintiff’s counsel will likely attempt to put the defendant driver on the stand at trial as a fact witness so that the jury will observe him or her refusing to answer questions and asserting the Fifth Amendment privilege. It is wise to file a second motion in limine prohibiting plaintiff’s counsel from calling the defendant driver as a witness at trial on the grounds that liability is stipulated and any additional testimony that the individual may provide is greatly outweighed by the prejudice to the defense. This argument will be even stronger in cases where the defendant driver did not witness anything relevant to the plaintiff’s damages and has no additional evidence than that supplied by other witnesses.

In other cases, however, a defendant’s assertion of his or her Fifth Amendment privilege may have serious consequences for the civil litigation. The most obvious is a case in which there is a solid defense to liability, but litigating the defense would require the defendant driver to waive his or her Fifth Amendment privilege. For example, imagine a single-vehicle accident resulting in the death of a passenger. The defendant driver tested positive for the presence of alcohol in his or her system, but the defense believes that not only was the presence of alcohol not causal of the accident, but that the defendant driver was not even negligent. Instead, the defense believes that the driver sustained a medical emergency that caused him or her to lose consciousness and leave the roadway. Under these facts, the defense will be eager to proffer evidence that the defendant driver was not negligent and therefore not liable for the accident. However, doing so would require the driver to testify in deposition and waive his or her Fifth Amendment privilege.

In this situation, counsel should attempt to stay the civil litigation or, alternatively, to protect the individual defendant from discovery, for as long as possible. As noted above, a judge may be reluctant to stay a civil lawsuit if a criminal charging decision has not been made. However, the facts of the specific situation may create a compelling reason to do so. For example, the civil defense attorney may have specific information that criminal charges are forthcoming, or the criminal statute of limitation may be about to expire. Under such circumstances, the defense could argue that the stay would not be indefinite and is required to protect the rights of the individual defendant.

As an alternative to a complete stay on all litigation of the civil matter, defense counsel may seek a protective order on any discovery from the individual defendant. This may make sense in cases where there are many additional witnesses or a lot of other discovery to be conducted. This option allows the case to proceed in some fashion while preserving the rights of the individual defendant.

Substantively, whether the motion is to stay the entire civil litigation or only certain discovery from the defendant, the basis will be essentially the same:

[A]ll parties—those who invoke the Fifth Amendment and those who oppose them—should be afforded every reasonable opportunity to litigate a civil case fully … Based on this policy, the general rule is that if the claimant makes a timely request to the court, the court should explore all possible measures to select that means which strikes a fair balance and accommodates both parties. Striking a fair balance between both parties requires a careful assessment of each case's precise facts. The court should give due consideration to the nature of the proceeding and the potential for harm or prejudice to opposing parties.[xii]

As this language from the Wisconsin Court of Appeals notes, the strength of the argument will depend heavily on the precise facts and circumstances of each case. If possible without the testimony of the individual defendant, you may be able to impress upon the court the strength of any liability defenses, should you have the opportunity to present them. This may highlight the additional prejudicial effect of the defendant not being able to present his or her side and, even worse, the jury being instructed that the defendant’s silence may be used as a presumption against the defense. You may also be able to demonstrate that a decision regarding criminal charges is forthcoming or that the stay or protective order will not unreasonably delay the litigation under the circumstances. Whatever the specific facts of the case, it is important to remember that the court must balance the equally compelling rights of the plaintiff in obtaining swift resolution with that of the defendant to assert and avail him- or herself of the constitutional right against self-incrimination in a meaningful way.

c.     Involve Criminal Defense Counsel

It is important to advise a client to seek criminal counsel as soon as possible whenever criminal liability is a reasonable possibility. A criminal law expert can assist both you and your client in protecting the client’s Fifth Amendment rights through the civil litigation and can help ensure that you do not advise outside of your expertise. Savvy criminal counsel will be able to advise on all aspects related to potential criminal liability, such as unintended consequences or other potential bases for criminal liability that would not be covered by double jeopardy and the original charging decision. 

1. V.            Q&A With Criminal Defense Attorney Jay Englund

1.         Practically, is it possible to obtain an agreement with a district attorney that criminal charges will not be brought? How?

Yes. Prosecuting attorneys have the authority to decline prosecution prior to the filing of charges. Such a decision is often referred to as a “no prosecution” or “no pros.” However, a “no prosecution” agreement is only binding upon the State if it meets standard contract law principles of offer –acceptance—reliance. While “offer” and “acceptance” need no explanation, “reliance” is a more complicated piece of the equation. In a criminal context, reliance requires some act by the person to his or her detriment. The client must take some affirmative detrimental action that they were not previously obligated to take. When engaging in negotiations with a prosecutor to “no pros” a case, the attorney should always condition the “no pros” on some detrimental action by their client. For example, the attorney may agree that their client will complete an alcohol/drug assessment or 5 hours of community service as a condition precedent to the “no pros.” If such an agreement is reached, remember to memorialize it with the prosecutor in writing. 

1. 2.         Have you had any resistance from opposing counsel to your involvement in a civil deposition where the deponent is also represented by separate counsel in the civil matter? Is there any basis for such resistance? How do you handle this?

It is not uncommon for opposing counsel in a civil matter to express frustration with my involvement; however, calmly explaining my role and responsibilities typically puts an end to the resistance. Just like opposing counsel, I have an important job to do that must be done correctly. Often times an informal discussion about our respective objectives leads to beneficial results for both sides. I have negotiated numerous resolutions with civil attorneys in exchange for their client’s support to favorable outcomes in the criminal cases. These situations are somewhat delicate, but, if handled correctly, within the rules of ethics. In stand-alone criminal cases, such agreements are commonplace. For example, prosecutors often agree to dismiss cases if the defendant agrees to pay restitution because it satisfies the alleged victim’s wishes.

3.         Do you counsel clients regarding how the assertion of their Fifth Amendment rights in a civil action may jeopardize their defense or insurance coverage in that action? 

No. I explain to my clients that I have been hired to evaluate criminal liability and provide guidance on that subject alone. If they have questions about civil consequences, I refer them to their civil attorney. Once they are equipped with that information, I then discuss what is more important to them –financial consequences or the potential loss of liberty. 

1. 4.         What recommendations do you have for civil defense counsel when representing a defendant who may be subject to related criminal charges in the future?

Three things. First, contact a criminal defense attorney to discuss your concerns. Second, assist your client in finding a lawyer who specializes in criminal defense. Finally, send your client a letter explaining your lack of expertise in criminal defense and recommendation that he or she contact a criminal defense attorney immediately.

1. VI.          Conclusion

 Special problems arise for civil defense counsel representing individuals who may be charged criminally for their conduct that gave rise to the civil litigation. In these circumstances, it is important to protect an individual’s right to assert his or her Fifth Amendment privilege. However, protecting that right is not necessarily as easy as moving for a stay of the civil litigation pending resolution of any criminal matter. The fact that the individual is not aware of any potential efforts to bring criminal charges does not relieve civil defense counsel of this responsibility. In some cases, criminal charges may not be contemplated until an incident receives additional attention through the civil lawsuit. It is always a good idea to recommend that the individual retain separate criminal counsel who can assist the both the client and civil attorney in preserving the client’s Fifth Amendment privilege. 

Author Biographies: 

Nicole Marklein is a partner with Cross Jenks Mercer & Maffei, LLP in Baraboo, Wisconsin. She concentrates her practice on civil defense litigation, both defending insureds on the merits of claims and representing insurers regarding coverage issues. Attorney Marklein also specializes in as employment law, wherein she provides employers cost-effective advice and defends employment-related claims should they arise. Attorney Marklein currently serves as President of the Wisconsin Defense Counsel and represents the organization on the Wisconsin Civil Justice Council.

Jay Englund owns and manages Englund & Associates Law Firm, LLC . He has devoted his career to criminal defense litigation and currently focuses his practice on the defense of felony, misdemeanor and drunk driving charges. He appears regularly in Adams, Columbia, Juneau, Monroe and Sauk Counties.

The authors thank Attorney Vincent J. Scipior for his contributions to this article.