What happens when a witness invokes the Fifth Amendment during a civil case?

The Court of Appeals has sustained a $21 million judgment against a school administrator whom a jury determined had repeatedly sexually abused one of his students. The Court addresses how trial courts should handle witnesses who invoke the Fifth Amendment during civil trials.

The case is Mirlis v. Greer, issued on March 3. I had an administrative hearing before the State Division of Human Rights a few years ago where the employer invoked the Fifth Amendment during the entirety of his cross-examination. It was quite a scene. One question after another, we got the Fifth Amendment. Our client alleged she was fired because of her transgender status. We won the hearing. There is some case law on the meaning of the Fifth Amendment during civil cases. This case provides additional guidance.

During trial, Greer invoked the Fifth Amendment on a series of questions relating to whether he sexually abused plaintiff and other boys. (The Fifth Amendment protects you from the right of self-incrimination, requiring prosecutors to prove their criminal cases through other evidence, unless the criminal defendant waives the privilege. In civil cases, the concern is that the witness will incriminate himself, which may prompt the unpleasant spectacle where the witness will not answer questions that may incriminate him). The trial court instructed the jury that Greer has the right to take the Fifth and that the jury may, but is not required to, infer that the answers would have been adverse to Greer's interests. This instruction was proper, the Court of Appeals ( Chin, Carney and Sannes [D.J.]) holds, in light of Brinks v. City of New York, 717 F.2d 700 (2d Cir 1983), which held that the district court may tell the jury that a "witness has a constitutional right to define to answer on the ground that it may tend to incriminate him and you may, but need not, infer by such refusal that the answers would have been adverse to the witness' interest."

We also have the interesting question of how the trial court handles the invocation of this privilege before the jury. Here, plaintiff's lawyer asked Greer a series of questions about sexual abuse. Each question was followed by the Fifth Amendment privilege. The concern is that plaintiff's counsel, aware that the witness will invoke the privilege for all questions, will ask fact-specific questions designed to suggest to the jury that the answers to those questions would have been "yes" but for the privilege. That concern was first raised by Judge Winter's dissent in Brinks. In this case, while invocation of the Fifth Amendment was "damning," it was not unfairly prejudicial (and therefore no reversible error on the trial court's part) because (1) Greer's refusal to answer these questions was "telling" as "silence is often evidence of the most persuasive character," (2) Mirlis did provide evidence of the sexual abuse, so the adverse inference was corroborated; (3) the district court gave a proper limiting instruction, as discussed above; and (4) Greer asserted the privileged inconsistently, actually answering some questions (in the negative) about whether he had sexually abused plaintiff, and he also invoked the Fifth on some questions that had no connection to any criminal conduct. As the trial courts have much leeway in regulating their trials, it did not abuse its discretion in supervising how Greer invoked the Fifth Amendment.