Summary
holding that the defendant was not entitled to a stay of civil action based upon a Fifth Amendment privilege without a judicial determination that any answers "could reasonably be self-incriminatory."
Summary of this case from Fallon v. StateOpinion
April 24, 1973.
Upon appeal from Superior Court. Affirmed.
William E. Taylor, Jr. and Henry A. Heiman, Wilmington, for defendant below, appellant.
Mason E. Turner, Jr., of Prickett, Ward, Burt Sanders, Wilmington, for plaintiff below, appellee.
Before WOLCOTT, C.J., and CAREY and HERRMANN, JJ.
This is an appeal from denial by the Superior Court of a stay of further proceedings in this civil action, including all discovery, pending final determination of certain criminal actions brought against the appellant. Protection of his constitutional privilege against self-incrimination is the basis of the appellant's application.
The Opinion of the Court below appears at 300 A.2d 16 (Del.). Reference is made thereto for a statement of the facts and a more detailed statement of the contentions of the appellant. The factual statement may be supplemented by noting that all direct appeals from the judgments of conviction were resolved against the appellant by this Court, 277 A.2d 662, and by the United States Supreme Court, 408 U.S. 939, 92 S. Ct. 2872, 33 L.Ed.2d 760. The only pending proceedings to which the application for stay may be addressed are the re-sentencing and a collateral attack upon the judgments of conviction by federal habeas corpus proceedings.
The situation is governed by rules long established in this State: The privilege against self-incrimination is a personal one to be claimed by the party under oath, and not by his attorney. A party cannot avoid interrogation, in vacuuo, by merely stating that his answers may tend to incriminate him. It is for the Court to decide whether the question, after actually being put, is such that any direct answer thereto could reasonably be self-incriminatory. Mumford v. Croft, 8 Terry 464, 93 A.2d 506 (1952).
We find no abuse of discretion.
Affirmed.