Maritime Proctor Blog

In Part I of "A Fifth of Silence," we covered the wording and history behind the Fifth Amendment, as well as how a jury must evaluate a witness taking the Fifth in a criminal trial.  To recap … the jury cannot consider it at all in reaching their verdict.

In Part II, we turn to taking the Fifth in a civil lawsuit.  The results are vastly different.  We will also address a hypothetical and provide some practical tips when faced with this type of situation.

What Happens When a Witness Takes the Fifth in a Civil Matter?

If a witness takes the Fifth in a civil matter, the jury, under SCOTUS precedent from 1973, can make an adverse presumption or inference as to that decision.[1]  The Supreme Court of Texas held in Wilz v. Flournoy in 2007 that a civil jury is “free to draw negative inferences from” a party repeatedly invoking the Fifth Amendment in their civil deposition.[2]

The ability of a jury to reach this conclusion is in line with the instructions found in both state and federal pattern jury instructions establishing evaluation of witness credibility to be the exclusive province of the Jury.  For example, Section 3.4 of Civil Pattern Jury Instructions in the Fifth Circuit (“FCPJI”) empowers the jury as the sole arbiter of witness credibility. 

Likewise, the Texas Pattern Jury Instructions (“TPJI”) grant the Jury great leeway on evaluating witness credibility.[3]

You are to make up your own minds about the facts.  You are the sole judges of the credibility of the witnesses and the weight to give their testimony.  But on matters of law, you must follow all of my instructions.

Notably this is part of the general instruction given to the jury as part of the Jury Charge, and is also found in the Texas Rules of Civil Procedure as a required instruction.[4] 

The TPJI General Negligence instructions also contain a sample instruction that the jury cannot draw an adverse inference from a party invoking a privilege.[5]  Per the plain language of Texas Rule of Evidence 513(c), the prohibition on comments or inferences as to the invocation of a privilege does not apply when a party or witness takes the Fifth.  Notably, a rule nearly identical to TRE 513 was proposed and rejected from inclusion in the Federal Rules of Evidence.[6]  But, the same protection still exists in federal court.

An Example of An Adverse Inference/Presumption Instruction

While there is not a sample adverse inference instruction in the FCPJI, case law supports a trial court making such an instruction, based upon the facts of the case.  An example of this is found in the 2014 Fifth Circuit decision of Aspen Tech, Inc. v. M3 Tech., Inc.,[7] which involved a dispute over alleged breach of a non-compete agreement by a former Aspen employee, Tekin Kunt, who joined M3.[8] 

After discovery, Aspen amended its complaint to also include a misappropriation of trade secrets claim against M3.  Craig Acuff, another former Aspen employee who moved to M3 before Kunt, invoked his Fifth Amendment rights in his deposition as well as at trial on the issue of whether Acuff took from Aspen an external hard drive containing Aspen’s confidential pricing calculators.[9]  Acuff also defragmented his laptop, before it could be imaged during discovery of the lawsuit, which, according to the Fifth Circuit’s per curiam opinion, meant it was “nearly impossible” to image for an ESI[10] pull.[11]

After the close of evidence, the trial court gave the jury two adverse-inference instructions concerning Acuff’s invocation of his Fifth Amendment rights.  The first dealt with the hard drive, and allowed the jury to:

… infer by Acuff’s refusal to answer that his answers to the questions posed to him would have been adverse to M3’s interests …

while cautioning the jury that it could not base the verdict exclusively on the adverse inference.[12]  The second adverse-inference instruction dealt with the defragged computer by Acuff, and allowed the jury to:

… infer that the content of those deleted documents or information would have been unfavorable to M3.[13]

With those two instructions provided, the jury found in favor of Aspen for over $11,000,000.00.  M3 appealed, and the Fifth Circuit affirmed a majority of the verdict, finding the adverse-inference instructions were sufficient on the facts of the case to provide a basis for the jury’s answers to the questions presented.[14]

Our Hypothetical

With this information in mind, let’s look at a hypothetical Admiralty case where the Fifth Amendment could come into play.  In this hypothetical, an inland towing company – the Hurricane Towing Company – owns, operates, and crews towing vessels and barges in the Intercoastal Waterway as well as the Mississippi River.  One of those vessels is the M/V Allison Alicia.

While on a run in the Intercoastal Waterway, a crewmember of the Allison Alicia notifies Hurricane Towing that the Master of that vessel, Ike Andrew, repeatedly sexually harassed and/or assaulted the crewmember at one point or another during the most recent voyage.  When the Allison Alicia returns to its home port, the entire crew (1) makes a written, formal complaint to their employer of harassment by the Captain and (2) demand to be reassigned to another vessel because of Captain Andrew’s conduct aboard the vessel.

Hurricane Towing refuses to suspend or reprimand Captain Andrew.  Instead, Hurricane Towing tells the crew to report for their next voyage on the Allison Alicia – with Captain Andrew at the helm.  The crew quits in protest and hires an attorney, who immediately files civil lawsuits on behalf of each crewmember, alleging violations of the Jones Act (negligence), General Maritime Law (unseaworthiness), and Title VII of the 1964 Civil Rights Act (sexual assault/harassment).  The lawsuits name both Hurricane Towing and Captain Ike Andrew as defendants.

The company’s attorney defends both Hurricane Towing and Captain Andrew. After suit is filed and before the deposition of Captain Andrew, each of the crewmembers file criminal complaints with the local authorities.  The District Attorney opens a criminal investigation.

Practical Points for the Maritime Proctor

-1-       Know Your Options.  The proctor defending our hypothetical towing company and Captain Andrew needs to recognize that Captain Andrew likely needs his own counsel irrespective of whether he takes the Fifth or not.  With the hypothetical described above, it is highly likely Captain Andrew will take the Fifth, because any statements under oath in the civil litigation could be used against him in the criminal investigation as well as possibly waive his right to take the Fifth if he is asked to testify before a grand jury or faces a criminal prosecution.  Also, your client should know the potential impact of Captain Andrew’s likely decision regarding taking the Fifth, specifically as to the possibility that an adverse inference by the Jury will take place.

-2-       Don’t Let the Blind Lead the Blind.  if you are a civil practitioner and criminal issues arise with your client or a witness, don’t be afraid to ask for help from a criminal attorney to ensure your client is properly advised in all respects.  Your malpractice carrier will thank you.

-3-       Voir Dire on the Issue.  The right to a jury trial by a fair and impartial jury is protected from government interference by the Constitution.[15]  In Texas, a venire member is disqualified if they have a bias or prejudice in favor of or against a party in the case.[16]  While inquiry as to the weight a potential juror would give to a piece of evidence is prohibited, some inquiry as to how the panel feels about general categories of evidence is allowed.[17]  If a juror absolutely will hinge his or her verdict on a witness’ decision to take the Fifth, it is arguable they are biased or prejudiced to the point where they could be struck for cause.  At the very least, it is worth using a peremptory strike.

-4-       If A Witness Takes the Fifth, Maximize the Pain or Manage the Damage.  If, in our hypothetical, you represent the crew, maximize the pain.  Craft your questions to make the witness take the Fifth where the question also establishes other aspects of your case.  Likewise, if defending the deposition, use every trick in the book to limit the times your client or witness takes the Fifth in their deposition or at trial.  Preferably the former, as taking the Fifth on the stand at trial can never be a good thing from the perspective of the jury’s view of the witness’ credibility.

-5-       Make Sure The Adverse-Inference Instruction is Correct.  As all maritime proctors in the Fifth Circuit who are well-versed in maintenance and cure know, the Fifth Circuit Pattern Jury Instructions are not perfect.  Sometimes, as described in the ovular 1987 maintenance and cure decision of Morales v. Garijak,[18] the instructions are flat-out wrong. 

If you offer an instruction to the Jury, make sure it is correctly worded and grounded in case law.  Likewise, if the other party offers an instruction, a prudent proctor will know which instructions go too far, and whether limiting language in the instruction is necessary.

Hopefully, our reader never faces a situation similar to this.  But, at the very least, you now know what could happen to all those celebrities and fictional characters who take (or decline to take) the Fifth.

[1] Baxter v. Palmigiano, 425 U.S. 308, 318-19 (1976).

[2] 228 S.W.3d 674, 676 (Tex. 2007)(per curiam).

[3] Tex. Pattern Jury Inst.: Gen. Negligence (“TPJI”) 1.3 (2016).

[4] See Tex. R. Civ. P. 226a.

[5] TPJC §1.10 (2016).

[6] See Steven Goode and Olin Guy Wellborn, III, Courtroom Evidence Handbook, 147-149 (5^th Ed. 2002

[7] 569 Fed. Appx. 259, 266 (5^th Cir. 2014)(per curiam).

[8] Id. at 262.

[9] 569 Fed. Appx. 259, 262-63.

[10] Electronically Stored Information.

[11] 569 Fed. Appx. 259, 262.

[12] 569 Fed. Appx. 259, 266 (cleaned up).

[13] Id.

[14] Id.

[15] See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749 (Tex. 2006).

[16] Tex. Gov’t. Code §62.105.

[17] Hyundai Motor Co., 189 S.W.3d 743, 750-54.

[18] 829 F.2d 1355, 1359 (5^th Cir. 1987).  Thankfully, the instructions now more closely track the correct law of maintenance and cure benefits.