Legal Memorandum: Defendant's Right to a Fair Trial

Issue: What remedies are available to safeguard a defendant’s right to a fair trial in the face of a plaintiff’s privilege against self-incrimination?

In addition to dismissal, courts have considered many remedies to safeguard a defendant’s right to a fair trial in the face of a plaintiff’s privilege against self-incrimination, including striking testimony, jury instructions allowing an adverse inference, and staying the civil proceedings until the resolution of criminal charges.  See Serafino v. Hasbro, Inc., 82 F.3d 515, 519 (1^st Cir. 1996).  When the plaintiffs intentionally use the “Fifth Amendment shield as a sword,” Wehling, 608 F.2d at 1087, dismissal is the only appropriate remedy.

A stay of these proceedings is not a viable remedy in such a matter.  In some cases, like In Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084 (5^th Cir. 1979), a court may stay the civil proceedings until the underlying criminal case is resolved, thereby relieving any incriminating threat imposed by testifying in the civil action.  While the plaintiffs may not be forced to “choose between his silence and his lawsuit,” Wehling, 608 F.2d at 1088.

Under FRCP 26(f), parties are required to meet, confer, and discuss any claims of privilege “as soon as practicable” in order to prepare a discovery plan for the court’s consideration. 

Adverse inferences and orders striking testimony are likewise insufficient.  Before trial can be held, the defendants necessarily must conduct discovery, evaluate the evidence, and prepare a trial strategy to defend against the plaintiffs’ claims.  The defendants cannot perform any of these tasks without obtaining from the plaintiffs their firsthand, direct testimony of the events […]