The Right to a Jury Trial in the Time of COVID-19

A jury trial is an iconic image. After selection, twelve impartial jurors are seated together in a jury box to observe the litigants, witnesses, and the court. In turn, the litigants observe the jurors, monitoring their presentations to respond to the jurors’ reaction. During breaks, the jurors retire to a small jury room where they interact. Advocates address the jury in opening and closing arguments, standing close – but not too close – to present their case, all the while trying to maintain credibility not only through their understanding of the facts and law, but also through facial expressions, body posture and tone of voice. From the jury box, jurors get an up-close chance to observe the testimony of witnesses who take the stand and present their direct testimony and then turn their attention to opposing counsel’s cross examination, closely watching the reactions of trial counsel and the litigants as the witnesses responds to questions. Throughout the trial, jurors monitor the court’s reactions. At the conclusion of the trial, following closing arguments and final jury instructions, the bailiff is sworn in and returns the jury to the jury room for deliberation where the jurors become a single entity “the jury” and render their verdict based their individual understanding of the evidence honed by the collective process of deliberation. The jury system fundamentally assumes that each juror has an equal opportunity to observe the entire court process.

With the pandemic defining our new normal and changing the way we convene, it is difficult to visualize a group of individuals who would not be anxious about the prospect of serving as a juror. They have valid concerns about their health and safety and the health and safety of their loved ones. Health experts agree outdoor activities are safer than indoors, it is important to restrict the size of gatherings, masks keep people safer, avoid public restrooms and maintain at least six feet of social distance between individuals. It is now under- stood that even loud conversations in closed rooms present elevated health risks.

Overlaid on these concerns are the statutory and constitutional rights, both federal and state that define the requirements of a “fair and impartial jury.” The challenge facing litigants and the courts today is how to reconcile the constitutional mandates with the legitimate health concerns facing jurors. This begs the question: Can a defendant obtain a fair and unbiased jury trial of one’s peers in today’s current crisis?

Legal Standards

The current orders issued by the Governor and the state Supreme Court do not resolve the constitutional or statutory issues presented by a defendant’s right to a fair and impartial jury trial. Both the Governor and the Supreme Court issued Orders designed to protect the health and safety of the general population and, specifically as to the later order, allow the courts to function during the pandemic. The Governor extended Oregon’s current State of Emergency through Sept 4. Although restrictions have been eased in some counties, general procedures to protect against the spread of infection are in place as counties have reopened and individuals have returned to greater social interaction. On May 15, the Oregon Supreme Court issued Chief Justice Order no. 20-016 (the order) imposing restrictions on jury trials. The goal of the order is “to meet the courts obligations to the public while continuing to minimize health risks for judges, staff, litigants and case participants. . .” The order recognizes some criminal defendants will insist on jury trials before the September 4th date based on their constitutional and statutory rights to a speedy trial. According to the order, jury trials during this time at a minimum will require the following: social distancing, specified persons in the court room wear masks (excluding witnesses when testifying) and other reasonable precautions to protect the health of all participants. Once the State of Emergency is lifted, the state courts will set protocols for holding jury trials.

The governor’s restrictions and the court’s order are both laudable in that they enact safeguards meant to keep individuals in each courtroom protected from transmitting the virus during court proceedings. However, these procedures must still meet a standard of higher import: the Oregon and US Constitutions.

Enshrined in Article I of the Oregon Constitution is the right to a jury trial in both criminal and civil cases. The criminally accused is also guaranteed the right to a speedy   trial under Article I, Section 10 of the Oregon Constitution, which states, “no court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay…” The Sixth Amendment to the United States Constitution guarantees a defendant the right to a speedy trial by an impartial jury. Under Oregon law, absent a waiver from the accused, misdemeanor trials must be commenced within two years from the date of filing the charging instrument, and felonies must be commenced within three years. ORS 135.746. If trials are not commenced within that time (absent specific exceptions) the case will be dismissed. ORS 135.752. Oregon law also contains the “60-day rule,” which requires criminal defendants to be released from custody after a maximum of 180 days. It is this 60-day rule which is driving the court to hold jury trials during this time of emergency.

Under both the Oregon and United States constitutions a criminal defendant has a fundamental constitutional right to call witnesses on her own behalf and confront the witnesses called by the state. Face-to-face confrontation is central to this right. See Article 1 Section 11 of the Oregon Constitution; State ex rel. Juv. Dept. v. S.P., 218 Or. App. 131, 178 P.3d 318 (2008); see also the 5th and 6th Amendments to the United States Constitution; Maryland v. Craig, 497 U.S. 836 (1990).

Just as fundamental, both constitution’s guarantee the right to a fair trial which includes the ability to remove jurors for cause, identifying those who cannot judge a case fairly through voir dire. Individual history or attitudes that impact an individual from fairly deciding the case before them will disqualify them as a juror if they have such a fixed attitude of mind that it would control their action in some appreciable degree. See State v Humphrey, 63 Or. 540, 54 (1912). A failure to excuse a biased juror will result in a new trial. Lambert v. Sisters of St. Joseph, 227 Or. 223, 231 (1977).

Provisions and Orders Addressing Health Concerns of Jurors May Impact Their Impartiality

It’s a safe assumption that potential jurors are concerned about their health and safety. Jury trials and the physical lay- out of courtrooms work against the current safeguard of social distancing and would enhance potential juror’s anxiety about contracting the novel coronavirus. Members of the public place safety even above their own financial interests. A poll published on April 2nd by the Kaiser Family Foundation found that 8 in 10 people surveyed believed the government should prioritize slowing the spread of the coronavirus over protecting the economy. Kaiser Family Foundation, The Impact of Coronavirus on Life in America. Apr. 2, 2020. Similar attitudes were expressed in a non-partisan statewide survey of 900 Oregonians conducted between April 17 and 21. The public opinion firm DHM Research, partnering with Oregon Values and Beliefs Center, found that 82 percent of Oregonians either strongly or somewhat supported the stay-at-home order. Those surveyed held that opinion despite the fact that 40% had either lost a job or had their hours cut due to COVID-19 and the Governor’s order. More recent surveys have found that similar attitudes persist even after several months of social distancing orders. See e.g. Liz Hamel et al., Coronavirus: Reopening, Schools, and the Government Response, KFF (Jul. 27, 2020), https://www.kff.org/coronavirus-covid-19/report/kff-health-tracking-poll-july-2020/; Czeisler et. al., Public Attitudes, Behaviors, and Beliefs Related to COVID-19, Stay-at- Home Orders, Nonessential Business Closures, and Public Health Guidance, 69 MMWR Morb. Mortal. Wky. Rep., 751 (2020).

These findings appear to reflect core values or fixed beliefs of potential jurors. It logically flows that they would also value their own safety over their civic duty to give defendants a fair trial. This concern for safety could manifest in hostility towards the accused or the entire jury trial process. Certainly, potential jurors’ concerns about their physical safety and attitude towards the safety measures ­– or lack thereof – could create sufficient bias such that they must be excused.

Pursuant to the Governor’s executive orders and incorporated into the Chief Justice’s order, social distancing requires individuals to maintain a minimum of six-foot distance from one another. In order to “minimize health risks,” Orders from the Governor and guidance from the CDC make clear wearing masks in public is a matter of personal and societal safety and recommend avoiding public restrooms and quarantining if an individual has been in close proximity with someone who becomes ill with coronavirus. Governor Kate Brown’s reopening orders turn on reducing the rate of Covid infection, limiting the size of gatherings, social distancing and mask wearing. See https://govstatus.egov.com/or-covid-19.

Individuals have been warned against large public gatherings. Therefore, a prerequisite to holding a fair jury trial is to ensure that none of the participants are infectious. A questionnaire sent to court staff, potential jurors and litigants that asks about a description of any symptoms and contact with anyone who may be infected does help mitigate fears, but that is certainly not dispositive as to whether or not a health risk is presented. Research indicates that some infectious individuals are asymptomatic and for those who do show symptoms they are most infectious during the two days before they show symptoms. He, X., Lau, E.H.Y., Wu, P. et al., Temporal dynamics in viral shedding and transmissibility of COVID-19, 26 Nat. Med. 672 (2020). The Chief Justice’s order concerning jury trials requires the adoption of “reasonable precautions to protect the health of all participants . . .” While testing is the best security against infection, even assuming access to tests it may not be a reasonable requirement to place upon a prospective juror. A potential juror could refuse to take the test and would therefore be automatically eliminated from the pool of jurors. For those who consented, sharing the results could potentially violate HIPAA regulations. However, it could be argued that in order to protect the litigants and other jurors, the entire jury pool should be tested before jury selection. But even these efforts would ultimately be futile. In cases where a trial lasts more than one day, the initial tests given during jury selection will not protect against subsequent exposures, nor inform other individuals in the courtroom of that exposure. The weakness in our ability to screen for Covid presents heightened anxiety for prospective jurors.

Impact of Current Health Data on a Fair and Impartial Jury Trial of One’s Peers

Jurors will undoubtedly be anxious about congregating in large numbers in public spaces. Their anxiety is reasonable. They will face risk of exposure to the virus throughout their jury service including transportation to the courthouse, security lines to enter the courthouse, exposure to large numbers of strangers and working in close proximity to others. Parents of school age children will also be concerned about home schooling and supervision of their children until schools reopen.

These health concerns create a significant risk that jurors will not represent our general population. Large numbers of otherwise qualified jurors will potentially exclude themselves from jury duty simply based on age, underlying health risks, and their status as parents. Research has also shown that COVID-19 disproportionately impacts black/ African American and Hispanic communities. Garg et al., Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019, 69 MMWR Morb. Mortal Wky Rep., 458 (2020). These disparities will prevent many defendants from being judged by a jury of their peers. Even if a jury can be selected, it is virtually impossible to impose standard health precautions within our current courtrooms and trial system. The witness stand is generally situated in close proximity to the jurors and court reporters. The jury boxes are often too small to allow for social distancing, so jurors will be required to spread throughout the courtroom. Those sitting behind counsel table will not be able to observe the defendant during trial other than staring at his or her back, nor will they see the face of counsel. They will experience the trial remotely and will gather a fraction of the information that they are presented in comparison to jurors sitting in the jury box. Disputes about evidence will occur in instances when some jurors didn’t have an opportunity to make an initial observation. Therefore, the jurors’ exposure to the evidence presented in the courtroom will be different.

Take, for example, a witness who identifies the defendant from the witness stand. The jurors sitting in front of the counsel’s table will be able to see the defendant’s reaction and may judge the validity of the identification based on watching both the witness and the defendant. Those behind counsel will miss this portion of the identification and will be unable to contribute regarding this point during deliberations, thus depriving the defendant of full jury participation.

Assuming these known challenges – and the myriad unknown challenges before us – are somehow overcome and  a group of jurors is chosen and a system is developed that includes picking a significant number of alternates to guard against mistrials based on changes of juror’s health profiles, how do we maintain the public nature of criminal jury trials. Oregon courts are constitutionally required to allow open courtrooms, which means public access. What ability does the judge have to require the health of members of the public be evaluated before entering the courtroom? The courts are currently set up to prevent weapons being brought into court rooms, but they are not historically involved in protecting the health of trial participants from potentially infectious members of the public who have a constitutional right to watch the proceedings and vice versa.

The Chief Justice’s order states “[a] presiding judge may: require that specified persons in the courtroom, excluding wit- nesses when testifying, wear masks . . .” Although there is no current scientific study as to the physiological impact on jurors of individuals in a courtroom wearing or not wearing masks, logically it will affect the proceeding. To some, mask wearing has become a sign of social respect or showing concern for others. A failure to don a mask may be seen as dangerous or irresponsible behavior. To others, masks have become a symbol of an overbearing government. In the current times, masks in and of themselves remind individuals they are facing potential health risks. Despite the potential ramifications to the justice served in each case, masks have been incorporated into the jury trial system as a safety precaution against the spread of a potentially deadly disease.

Further, a criminal defendant unbeknownst to themselves may be infected with COVID-19. Jails, prisons and other state confinement facilities have been linked to a number of out- breaks across the country. However, requiring a defendant to wear a mask in court would certainly put them at a disadvantage by creating a de-humanized jury reaction and may even make him or her look guilty. Courts may only compel defendants to briefly don masks for the narrow purpose of eyewitness identification in limited situations. United States v. Domina, 784 F.2d 1361 (9th Cir. 1986). Otherwise, the visual effect of seeing the defendant in a mask potentially creates a prejudicial impression of guilt in jurors’ minds. For similar reasons, defendants cannot be compelled to appear at trial in prison garb. Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972). Requiring a defendant to wear a mask for the entirety of a trial would be an unprecedented step. Similarly, jail guards who transport and in-custody defendant and remain in the court room during the trial would potentially be required to wear a mask, thus raising a sense of menace in the courtroom. As of May 20th, 1,259 jail guards in New York alone have been infected with novel coronavirus and there have been 6 deaths. See New York Times May 21, 2020.

As for witnesses, a witness may not be required to wear a mask. However, what if they are uncomfortable not wearing one? What if jurors view a witness not wearing a mask as disrespectful behavior and, therefore, distrust the witness? What about the mandate that courts use reasonable precautions to protect the health of all participants? Recent studies have determined that a high risk of spreading germs occurs in closed rooms with little air circulation. Speakers exhale germs when they speak and wearing a mask is the best defense against infection. See e.g. Stadnytskyi et al., The Airborne Lifetime of Small Speech Droplets and their Potential Importance in SARS-CoV-2 Transmission, Proc. of the Nat. Acad. of Sci., May 13, 2020; Hamner, et al., High SARS-CoV-2 Attack Rate Following Exposure at a Choir Practice, 69 MMWR Morb. Mortal Wkly. Rep. 606 (2020). Therefore, it is a safety consideration whether witnesses are required or allowed to wear masks in a courtroom.

While it may be a safeguard to illness, at the same time requiring a witness to wear a mask conflicts with a defendant’s constitutional rights to confront a witness face to face. Witnesses may certainly be reluctant to testify in public court- rooms for the same reason that jurors would be reluctant to serve. They may also insist that they wear a mask. Will courts allow witnesses to wear masks for their own protection or the protection of jurors and others in the courtroom? Doing so would certainly impact the defendant’s right to face their accusers. Although there have been constitutional challenges involving witnesses wearing religious garments and situations where the government has obscured a portion of a witness’s voice or facial identification for their protection, these issues have been tied to a single witness in a trial and other witnesses were not impacted. In each case, there must be a specific countervailing reason to make a limited exception. See e.g. United States v. De Jesus-Castaneda, 705 F.3d 1117 (9th Cir. 2013) (witness was an active confidential informant in the Sinaloa cartel); People v. Ketchens, No. B282486, 2019 Cal. App. Unpub. LEXIS 3920 (June 7, 2019) (witness had a First Amendment right to wear a thin veil covering the lower portion of her face).

The very idea of every witness hiding the lower part of their face, including their mouths, from the jury is anathema to our court system. We all take cues from non-verbal communication that come with reading facial expression. We watch for grimaces, smiles, and down-turned lips to understand the meaning speakers place on their words. Uniform jury instructions advise jurors to judge credibility based in part on the demeanor of the witness. See Ninth Circuit Manual of Model Jury Instructions – Crim. 3.9 (2019); Or. UCrJI No. 1006. A mask would prohibit jurors from undertaking this central function.

A suggested alternative that witnesses appear via Zoom or similar technology during criminal trials also presents inherent problems. Video testimony is not a substitute for appearing in person. It interferes with the ability of jurors to judge the truthfulness and value of a witness’s testimony to their decision-making process. Germaine to this topic is a New York Times article of April 29, 2020, entitled “Why Zoom is Terrible.” The article explains the common situation where individuals have a negative emotional reaction to those they are interacting with on Zoom. Although in some ways counterintuitive, the way the technology decodes and recon- structs data creates subliminal artifacts and inaccuracies in the pictures and responses that make individuals “feel vaguely disturbed, uneasy and tired without quite knowing why.” These responses would certainly prejudice a defendant’s right to a fair and impartial jury trial. That kind of subliminal response cannot be guarded against and would impede the fair delivery and processing of information. Currently, Oregon courts will not permit or force a party to accept video testimony. Prior to its admission both parties must stipulate to it. ORS 131.045; United States v. Carter, 907 F.3d 1199 (9th Cir. 2018) (witness’s pregnancy did not justify use of two-way video).

The usual tactics of cross-examination, curative jury instructions, and expert testimony also cannot mitigate these problems. No lay witness could explain why they are unable to connect with the jury over video, nor can jurors be instructed to separate their automatic psychological reactions from their legitimate credibility assessments. Experts may be able to explain the reaction, just as they can explain the potential unreliability of eyewitness identification. State v. Lawson, 351 Or 724, 761 (2012). However, this only stands to undermine jurors’ confidence in the entire system, not provide defendants a fair trial.

Conclusion

Legitimate health concerns facing jurors and other trial participants puts the constitutional right to a speedy trial at odds with the ability to have a fair and impartial jury and to confront one’s accusers face-to-face. Defendants may refuse to waive their speedy trial rights because they need or want their trials heard now as they are currently in custody and are concerned about their own health and safety during this time or are anxious about a trial hanging over their heads. Courts are rightfully concerned about maintaining public health and safety, but are also concerned about backlogs in trial dockets rising during this pandemic. Balancing all of these concerns with the constitutional rights of the accused will be difficult, if not impossible. As U.S. District Court Judge Jed Rakoff, who sits in Manhattan, writes, “if well past July and for months to come, it is still dangerous for twelve people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met.” Jed Rakoff, Covid & the Courts, The New York Review of Books, Apr. 30, 2020. Thus, in moving towards reopening our judicial system, we must not rush towards resuming jury trials in their normal manner with- out taking the time to appropriately address and consider a defendant’s constitutional rights. Each safety measure adopted by the court potentially impacts different components of what together constitute a fair and impartial jury trial. A defendant who insists on a speedy trial would first need to waive the other constitutional rights that will be given up in exchange for enforcement of that single right. For those who want to quickly and safely resume jury trials, it is important to under- stand that efforts to ensure courtroom safety will risk infringing on constitutional rights that are integral to our system of jurisprudence and fundamental to the rights of the accused.


What Can You Afford to Risk? Self-Incrimination in Civil Litigation

When a civil action results in criminal charges, often the most compelling evidence in favor of conviction is self- incriminating evidence disclosed in the civil case. Recently, I spoke on a panel addressing the various ways civil litigation can implicate a client in criminal conduct. Following the presentation, a member of the audience submitted a question: “Practically speaking, what options exist if you identify an area where your client might incriminate himself? And, if your client makes an incriminating statement or turns over an incriminating document, what can be done to protect them in the criminal context?” This article is my attempt to answer these practical questions from the perspectives of plaintiff, defendant, and witness.

I. The Basic Legal Framework

The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution gives every person the right not to “be compelled in any criminal case to be a witness against himself.” [1] Article I, section 12 of the Oregon Constitution states: “No person shall be … compelled in any criminal prosecution to testify against himself.” [2] These privileges can be raised in any proceeding at any juncture where the testimony may be incriminating in a future criminal proceeding. [3] This includes civil, administrative, and criminal cases, as well as non-judicial settings. [4]

In order for a person to assert their Fifth Amendment right against self-incrimination, they must have an articulable interest that can be expressed in order to show their testimony would either support a conviction or “furnish a link in the chain of evidence needed to prosecute [them] for a federal crime.” [5] A court determines whether a person’s Fifth Amendment assertion is justified by deciding “whether [they are] confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination.” [6] Of course, the witness does not need to explain why answering a question would incriminate them. “To sustain the privilege, it need only be evidenced from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” [7] In other words, the Fifth Amendment protects more than the proverbial smoking gun and other plainly phrased admissions of wrongdoing. It also protects statements that may seem innocent on their faces but, in light of previously developed facts, could be injurious.

In addition to the testimonial setting, the Fifth Amendment also applies when a person produces documents, which typically occurs in response to a subpoena duces tecum or a request for production. Pursuant to the “Act of Production” privilege, the very act of producing documents (as opposed to the contents of the documents themselves [8]) is protected under the Fifth Amendment to the extent that the production may constitute implied testimony that could be incriminating. [9] The “Act of Production” privilege may arise where the production of records amounts to the tacit admission of a document’s existence or a client’s possession of them, either of which could be incriminating. In addition, the “Act of Production” privilege is implicated when the production may serve to authenticate documents that would otherwise have questionable foundations. [10] If, under any of these theories, a production of documents is incriminating, a person can assert their Fifth Amendment right and refuse to produce the documents unless the requesting party can show with “reasonable particularity” that the existence, location, and authentication of the documents are “foregone conclusions.” [11]

II. Strategic Considerations

In some cases, your client may choose to waive their Fifth Amendment right against self-incrimination and make statements or produce documents in a civil case. Such a waiver must be “knowing, intelligent, and voluntary.” [12] Before making this choice, however, counsel must carefully advise a client on the risks of doing so. Balancing your client’s interests against likely outcomes is extremely difficult, and the decision is not always clear cut. For example, if your client is the subject of a SEC enforcement action and an ongoing criminal investigation, the answer is far simpler than in a situation where you believe your client could be implicated in a civil matter that involves no known criminal investigation, but which may still carry criminal ramifications. Your advice will also depend on whether your client is a plaintiff, a defendant, or a witness subpoenaed to testify or produce documents.

A. Plaintiffs

Advising plaintiffs on whether they should waive their Fifth Amendment right requires contending with a number of emotional considerations. In some instances your client feels wronged, and you, having conducted discovery, also believe that your client has been wronged. In other instances you believe in the client’s cause, and the client either needs financial compensation for his losses, wants to set a precedent, or simply wants to vindicate themselves or repair their reputation. Regardless, if the matter is pursued, the defense may try to implicate your client in wrongdoing, whether fairly or not. There is a significant risk that, even if your client prevails in the civil case, the evidence obtained in that litigation could later be used against your client to build a criminal case. The success in one arena could jeopardize your client’s interests in another.

For a plaintiff, there is really only one option for avoiding criminal liability: not pursuing a claim. Although this outcome is difficult for a client to accept, the added costs of later defending against a criminal prosecution will usually out-weigh any potential recovery in a civil case. Of course, counsel should also consider any avenue to settle a matter in a way that might partially, if not totally, bring about the relief sought in the lawsuit. For example, with the client who sees them- selves as a whistle blower, perhaps you could persuade your client’s employer to adopt new policies that will help ensure that the sort of conduct at issue in the case does not reoccur.

B. Defendants

Like plaintiffs, defendants certainly experience strong emotions and the same considerations may exist: vindication, reputation, money, and fear of setting a precedent. Yet the risk of incrimination in formulating a defense may exist because of the nature of the claims and the interest of the accuser. The risk in this situation may be more obvious, but the choices more limited. Defendants, unlike plaintiffs, do not have the initial choice of whether or not to bring the litigation in light of all of the risks. Therefore, before you begin the discussion with your client about what they can “afford to risk,” it is important to understand the various areas where criminal liability arises, and what can or can’t be done to resolve the risk.

In determining whether your client may be facing criminal liability, you should consider whether the facts used to establish your client’s claims or defenses, or the facts that will come out in their testimony, could also be used to satisfy the elements of a criminal charge. You should also determine whether the government is already investigating your client.

If you are unsure whether there is an active investigation, but believe your client has potential criminal liability, it can be wise as a first step to reach out to the law enforcement agency or prosecutor’s office that would be the entity investigating your client. Although prosecutors are not required to inform prospective defendants that they are being investigated, they cannot engage in “trickery or deceit” in order to affirmatively mislead the subject of parallel civil and criminal investigations into believing that the investigation is exclusively civil in nature pursuant to the “parallel proceedings” doctrine. [13] Regardless of what a prosecutor tells you about the status of their investigation, an initial inquiry will at a minimum open up a dialogue and, in some circumstances, the dialogue itself can help counsel understand whether or not their client’s case is the type that the prosecutor would have an interest in. It can also create an opportunity for you to explain your client’s role in the matter. If you have a compelling argument to make at this early stage, it could make the difference between your client being a cooperating witness or a defendant in a future criminal proceeding.

If you ultimately determine your client has potential criminal liability, the next step is to consider the potential downsides of asserting the Fifth Amendment. If your client is a litigant in federal court, they run the risk of having an adverse inference drawn against them with respect to the fact they refuse to disclose. [14] However, such an inference can be drawn only if independent evidence exists that could prove the fact your client refuses to disclose. [15] In Oregon state court, on the other hand, no adverse inference is allowed in the event your client asserts their Fifth Amendment right. [16] But, a defendant cannot use the assertion of the Fifth Amendment as both a sword and shield. If your client testifies affirmatively, they may then waive their right to assert the Fifth Amendment during cross examination. In that situation, the client runs the risk of having their testimony struck if they do not answer questions. [17]

In addition to asserting the Fifth Amendment there are several alternatives available to defendants that, if successfully obtained, can at least temporarily mitigate the risk of criminal liability.

1. Settlement
Settlement is, of course, the obvious choice if the parties can reach an acceptable agreement. Even with a settlement, however, counsel must carefully draft written agreements to ensure recitals and other factual provisions do not implicate their client.

2. Stay of Proceedings
In a case where a settlement is not an option, a defendant can move to stay a civil case in whole or in part if the facts of the lawsuit parallel possible criminal liability. However, a court has discretion to refuse to stay the proceeding after balancing the following factors: (1) the interest of the plaintiffs in proceeding expeditiously, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court, and the efficient use of judicial resources; (4) any relevant interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and, if applicable, criminal litigation. [18] Put more simply, a defendant will not be granted a stay based on the mere possibility of criminal liability, and will have to assert their Fifth Amendment right if denied a stay.

3. Motions to Quash or Motions for a Protective Order
A complete consideration of the grounds for seeking a protective order against a discovery request or quashing a subpoena is beyond the scope of this article. However, a discovery request or subpoena may be objectionable because it is overbroad, asks for privileged information, or, of course, where responding to it would expose your client to self-incrimination because it assumes guilt. [19]

C. Witnesses

A client who is subpoenaed to testify as a witness or pro- duce documents in a matter where they may be exposed to criminal liability is in a different situation than a plaintiff or a defendant. Such a client lacks the power to stay a proceeding, and has no claim to drop. Furthermore, they cannot simply refuse to comply with a subpoena or decide not to attend the proceeding. A witness can, however, refuse to answer questions by asserting their Fifth Amendment right without having to worry about an adverse inference being drawn against them. But, the act of refusing to answer will certainly place the spotlight on them and their conduct. It may also cause reputational damage. This sort of client, because of their role in society or within a company, may be reluctant to assert their Fifth Amendment right. Such a client is also the very person with whom having the discussion regarding risks may be the most important.

III. Damage Control

The biggest risk of your client making incriminating statements is that those statements may later be used in a criminal prosecution against them. But how does this play out in the real world? One example is where your client appears for a deposition and makes statements that implicate them in criminal activity. These statements have several negative consequences. First, the statements may provide the government a road map of your client’s likely defenses. Second, the government may claim that the statements themselves (if any aspect of them are at odds with the facts alleged by the prosecution) were an obstruction of an investigation. This, in turn, could allow a prosecutor to bring an obstruction charge separately, or use the allegation of obstruction to enhance a criminal sentence. [20]

Third, and most importantly, the statements will be admissible in evidence in a criminal prosecution against your client as admissions of a party opponent. Unfortunately, regardless of your client’s intent when making the statements, there is no similar right for a criminal defendant to use the exculpatory portions of the same deposition. Such a deposition can be particularly damaging if your client chooses not to testify during a criminal trial and has no chance to explain the context of the statement or what they were thinking when they made it.

Under the rules of evidence, in order to mitigate the harm of the prior statement, defense counsel can (1) find other areas of testimony from the prior statement, omitted by the prosecu- tor, that are admissible under the “rule of completeness;” [21] (2) challenge the prosecutor’s characterization of the statement as an admission; or (3) argue a constitutional basis for exclusion that would otherwise make the statement involuntary.

One such constitutional basis could be that the statement was given pursuant to an involuntary waiver of your client’s Fifth Amendment right. If a government investigator was questioning your client when the incriminating statement was made, then there may be an avenue to suppress the statement through the doctrine of parallel proceedings. This doctrine, in a nutshell, says that a civil case cannot be used as a stalking horse for a criminal prosecution. For one thing, the government cannot bring a civil action solely to obtain evidence for a criminal prosecution. [22] But even if the civil action is not brought solely for the sake of criminal prosecution, the circumstances may indicate that a criminal prosecution is inappropriately utilizing a civil investigation for fact-gathering. [23] If, for instance, staff from separate civil and criminal agencies meet regularly, identify targets together, or share documents, there may be grounds in the criminal prosecution to suppress a statement made in response to questioning by the civil investigators. The same argument could be made if the government creates an “agency” with a private civil attorney and uses that attorney to gather information for a prosecution. In such a situation, the civil attorney may be found to have acted “as an ‘instrument’ or agent of the state.” [24] A court may make such a finding after determining: “(1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.” [25]

IV. Conclusion

The decision of whether to assert the Fifth Amendment right against self-incrimination can have a dispositive impact on civil litigation. Clients facing this choice may be dealing with the potential loss of a business, a job, emotional or physical pain, or a dire need for financial compensation or even simple vindication. These clients certainly never imagined they would need to choose between asserting legal claims or defenses and taking the Fifth. I have learned over the years that in order to resolve the issue the most important question to explore with the client is: “What can you afford to risk?” For each client in each situation, the answer may be very different. An outsider may assume that the obvious answer is, “I cannot afford a criminal conviction,” or, “I cannot afford a prison sentence.” But sometimes, despite counsel’s concern for their client’s criminal prosecution, that is not the most important factor to a client. Some clients may care more about their reputation in the proverbial “court of public opinion,” or the business they have built up over time, or conveying to their children that you can’t just give in to bullies. Each client is unique, and each has a different take on what constitutes too large a risk. Helping a client figure out the risks and how to navigate the areas that are potentially incriminating is one of the most difficult areas for counsel to advise, and for the client to decide what is ultimately not worth risking.

 


[1] U.S. Const. Amend. V.
[2] The jurisprudence regarding the Self-Incrimination Clause of the Fifth Amendment generally applies to the Oregon Constitution’s analogous privilege.
[3] United States v. Balsys, 524 U.S. 666, 672 (1998).
[4] See id.; State v. Langan, 301 Or. 1, 5 (1986) (Article I, section 12 privilege against self-incrimination applies in any judicial or non-judicial setting where compelled testimony is sought that might be used against the witness in a criminal prosecution).
[5] United States v. Rendahl, 746 F.2d 553, 555 (9th Cir. 1984) (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)).
[6] United States v. Apfelbaum, 445 U.S. 115, 128.
[7] Hoffman, 341 U.S. at 486-7.
[8] Because the Fifth Amendment only protects a person from compelled self- incrimination, a document that was voluntarily created is not protected. See Fisher v. United States, 425 U.S. 391, 396 (1976); Schmerber v. California, 384 U.S. 757, 761 (the privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature”).
[9] “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988).
[10] See id. at 216 (noting that authentication by production would be “testimonial” in nature).
[11] In re Grand Jury Subpoena, 383 F.3d 905 (9th Cir. 2004).
[12] Edwards v. Arizona, 451 U.S. 477, 482 (1981); State v. McAnulty, 356 Or 432, 455 (2014).
[13] United States v. Stringer, 521 F.3d 1189, 1198 (9th Cir. 2008) (citing United States v. Robson, 477 F.2d 13, 18 (9th Cir. 1973).
[14] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).
[15] Doe ex rel. Rudey-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (“[W]hen there is no corroborating evidence to support the fact under inquiry, the proponent of the fact must come forward with evidence to support the allegation, otherwise no negative inference will be permitted.”).
[16] OEC 513(1) (“The claim of 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 from a claim of privilege.”); John Deere Co. v. Epstein, 307 Or 348 (1989).
[17] See United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980).
[18] Id.
[19] For example, if a subpoena to a banker ordered the production of “all documents related to the unauthorized cashing of checks,” a court would almost certainly quash it.
[20] However, before the statement can be used for such a purpose, the government must demonstrate that “the defendant gave false testimony on a material matter with willful intent.” See, e.g., United States v. Herrera- Rivera, 832 F.3d 1166, 1175 (9th Cir. 2016) (quoting United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014)).
[21] Federal Rule of Evidence 106 provides that, “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.” Rule 106 of the Oregon Evidence Code provides the same rule, but extends it beyond just writings and recorded statements to “act[s], declaration[s], and conversation[s].”
[22] United States v. Kordel, 397 U.S. 1, 11 (1970).
[23] Stringer, 521 F.3d 1198.
[24] Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971).
[25] United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1994) (quoting United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994)).


Back to Basics: Impeachment by Prior Inconsistent Statement

I have spent thousands of hours in the courtroom, tried civil and criminal cases, and had the opportunity to observe all kinds of lawyers advocating for their clients. Of all of the mistakes a lawyer can make in trial, one is far more gut churning than any other.

Imagine the following scene: a lawyer is in trial listening to an adverse witness testify on direct examination. The lawyer hears the witness make several inconsistent statements about critical facts. The lawyer begins vigorously flipping through documents at counsel table, highlighting reports and deposition transcripts, and eagerly waits to destroy the witness on cross. The lawyer gets to the podium, pulls out a deposition transcript, and immediately demands to know whether the witness made one of the highlighted statements in the deposition transcript. The opposing counsel stands up, and in an unassuming voice says, “objection, improper impeachment.” Before the lawyer knows it, the judge sustains the objection. The lawyer, not as aggressive this time, asks the same question but refers to a different highlighted statement. The opposing counsel makes the same objection, which the judge quickly sustains. At this point, the lawyer has lost all color from his face. The courtroom is silent, with the exception of the noise the lawyer is making by aimlessly shuffling paper on the podium. The lawyer, now frantic and aware that the jury is watching him, gives up and moves on to the comfort of his prepared cross.

The scene I just described is not limited to new lawyers. I have observed lawyers of all experience levels try and fail to impeach a witness using a prior inconsistent statement. This is heartbreaking, because one of the most powerful and effective forms of trial advocacy is impeachment by prior inconsistent statement. There is no better way to drive a knife into the heart of the credibility of a witness. However, this deceptively simple tool is often used improperly. A sustained “improper impeachment” objection is not only embarrassing, it also greatly reduces the efficacy of your cross examination. Therefore, if you are about to find yourself in trial, it is critical to review this skill and ensure you are comfortable employing it properly and in a way that inflicts maximum damage. Below is a brief review of the mechanics of impeachment by prior inconsistent statement, as well as some tips I have learned during my time in the courtroom.

Terminology

Impeachment by prior inconsistent statement is used when a witness remembers a fact, but previously made a different statement about that fact. Impeachment by prior inconsistent statement has three basic steps, which have been described in a number of ways. One of the most popular is the “three Cs,” confirm, credit, and confront. Alternatively, the three steps have been described as follows: repeat, build up, impeach. Whatever way you choose to remember the three steps of impeachment by prior inconsistent statement, the process is the same. 

1. Repeat

First, the most basic step, is to have the witness repeat the testimony from today’s hearing that you want to impeach. You cannot effectively impeach unless the witness repeats a fact they said during the current hearing that clearly contradicts a prior statement. While this seems simple enough, you can easily run into trouble by tipping off the witness that you are about to impeach them. An experienced witness, such as a police officer, will immediately know what you are trying to do and offer an explanation. To avoid alerting an experienced witness of what is about to happen, try to ask the question in a more casual manner. For any other witness, a more aggressive form of questioning is appropriate. For example, using phrases like “today you say. . .” or “today you claim . . .” alerts the jury that you are questioning the accuracy of the witness’s statement and that you will soon draw a contrast. I have also found that asking something like, “there is no question in your mind that the statement you gave today is true,” as well as asking the witness if they ever gave a different answer to the question that will be the subject of the impeachment, creates added effect.

2. Build Up

The second step is to credit, or build up, the prior statement. There are two purposes for this step. First, it is to show that the prior statement was more reliable and accurate. Second, it is to establish a foundation that will allow you to use extrinsic evidence of the prior inconsistent statement. OEC 613(2).

The means by which you establish the accuracy and reliability of a prior statement depends on the nature of the prior statement. For example, if the prior statement is an oral statement given to a police officer, it is important to emphasize the following:

  • (1) where the witness was when they made the statement;
  • (2) the fact that the witness made the statement right after the event when it was fresh in their mind;
  • (3) the importance of giving police officers accurate information;
  • (4) the witness’s desire to give the police accurate information to make sure the right person is arrested; and
  • (5) that the witness did in fact give the police accurate information.

If, however, the witness made the prior statement in a deposition, you should emphasize slightly different facts:

  • (1) where and when the deposition occurred;
  • (2) the presence of a court reporter;
  • (3) the fact that the witness took an oath to tell the truth and was subject to penalties for perjury; and
  • (4) the fact that the witness had an opportunity to read their testimony and ensure it was accurate; and
  • (5) that the witness did in fact confirm their deposition testimony was accurate.

In addition to establishing the details of the prior statement to credit, or build up, that statement, you must also ask the witness whether they in fact made the statement in order to use extrinsic evidence of the statement. There are three possible responses the witness can give to this question.

  • First, the witness may admit making the prior inconsistent statement. If this happens, you are done. Although OEC 613(2) does not prohibit introduction of extrinsic evidence of a prior inconsistent statement after a witness admits making it, such evidence is cumulative and likely to be excluded under OEC 403. State v. Klein, 243 Or App 1, 13-14, 258 P3d 528, 534-35 (2011).
  • Second, the witness may say they do not remember making the prior inconsistent statement. This response is the equivalent of a denial, and extrinsic evidence is allowed. State v. Bruce, 31 Or App 1189, 1194, 572 P2d 351, 353 (1977).
  • Third, the witness may deny making the prior inconsistent statement, which of course permits the use of extrinsic evidence.

A common misconception regarding this step is that it renders the prior inconsistent statement substantively admissible. However, just because you can present extrinsic evidence of a prior inconsistent statement, it does not mean that the statement is admissible as substantive evidence. To be substantively admissible, the prior inconsistent statement must also be relevant, authentic, and either non-hearsay or subject to an exception to the hearsay rule. Common examples of substantively admissible prior inconsistent statements are prior sworn statements (OEC 801(4)(a)) and admissions of a party opponent (OEC 801(4)(b)).

3. Impeach

The final step is to impeach the witness with the prior statement. It is critical to use the actual words of the prior statement. If you are using a deposition or other transcribed testimony, be sure to let your opposing counsel know the page and line numbers you are reading from.

A common mistake made during this step involves the use of oral statements. If the witness gave an oral statement to another person who included it in a written report, you cannot impeach the witness by referring to that report. For example, if a detective prepared a report that includes the witness’s statements to that detective, it would be improper to ask “didn’t you say in the detective’s report that . . .” Assuming you otherwise laid a proper foundation for the statement, you could, however, ask “didn’t you say to the detective that . . .” The reason is that OEC 613 requires that the prior inconsistent statement be that of the testifying witness. In this example, the report is not the witness’s statement. The witness’s statement is their words to the author of the report.

Best Practices

There are several important principles to keep in mind that span each of the above three steps.

  • First, impeach with only one fact at a time. Keeping it simple allows the jury to understand the difference between the two statements. Long, meandering statements may not be totally inconsistent and can easily cause you to lose the attention of the jury. In addition, impeaching a witness using one fact at a time gives you more opportunities to impeach, which further erodes the credibility of the witness.
  • Second, when impeaching with prior sworn testimony, you must read the questions and answers verbatim. It is improper to summarize or paraphrase the testimony because the summary is not the witness’s actual statement.
  • Third, be mindful of your tone. For example, if you want to show the witness is lying, project a sharp professional attitude and use questions that employ irony, curiosity, or surprise. If you want to show the witness is forgetful, use a more empa­thetic tone or allow the witness to explain the inconsistent statement. Your tone during impeachment should match your tone during closing arguments when you discuss the wit­ness’s testimony.
  • Fourth, do not impeach with facts taken out of context. Remember, OEC 106 gives your opposing counsel the ability to require you to read the entire relevant portion of a statement, not just the portion you wish to use.
  • Finally, be selective when choosing what facts to use as a basis for impeachment. Not only is extrinsic evidence of a prior inconsistent statement on a collateral matter inadmissible, impeachment on a collateral matter needlessly distracts the jury and undermines the power of your impeachment on more material issues.

Conclusion

When used properly, impeachment by prior inconsistent statement can change the outcome of a trial. A botched attempt, however, can leave you with egg on your face in front of the jury. Even worse, a failed attempt could look like you took a cheap shot at a witness. A short review of this funda­mental skill can get you a long way.


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