When can the jury know the plaintiff invoked the Fifth Amendment at deposition?

The jury trial is the name of the game. If you lose, you are entitled to file a notice of appeal, but few appeals from adverse jury verdicts are successful. The jury is allowed to view the facts any way it wants (within reason), and the judge enjoys broad discretion in making evidentiary rulings at trial. In this case, however, the appeal was successful. The Court of Appeals provides some guidance on when you can impeach the plaintiff's credibility at trial.

The case is Woods v. START Treatment, decided on July 19. The plaintiff sued her former employer for FMLA retaliation. The jury found for the employer. Plaintiff wins the appeal for two reasons: first, the trial court improperly charged the jury, telling them the plaintiff had to prove "but for" causation instead of "motivating factor." As I write in this blog post, this case represents the first time the Court of Appeals holds that the motivating factor test governs FMLA retaliation cases.

The other holding in this case is that the trial court got it wrong in allowing the employer's attorney to exploit how the plaintiff in pre-trial deposition invoked the Fifth Amendment on unrelated issues that could have affected her credibility.While evidentiary rulings are difficult to challenge on appeal, in this case, the trial court crossed the line, and the Second Circuit (Kearse, Hall and Chin) says the plaintiff gets a new trial because the evidentiary error denied plaintiff a fair trial.

In deposition, defense counsel asked plaintiff if she had ever been investigated by the City of New York. She took the fifth. She also took the fifth when counsel asked if she was accused of "some kind of immoral conduct" and whether she was accused of lying or fabricating events or submitting false documentation. She further took the fifth when asked if she was accused of misrepresenting the facts to the government. The jury knew about all of this, and defendants used plaintiff's refusal to self-incriminate against her at trial, attacking her credibility.

This was unduly prejudicial to plaintiff, the Court of Appeals held, for a number of reasons. "Most of the questions in Woods’s deposition were merely whether Woods had been accused of something. Even assuming her answers would have been 'yes,' accusations have little, if any, probative value because the innocent and guilty alike can be accused of wrongdoing. Without more, accusations do not 'impeach the integrity or impair the credibility of a witness.'' Second, plaintiff "suffered even harsher prejudice from the admission of an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of a conviction only when the crime is a felony or the court 'can readily determine that establishing the elements of the crime' required proving a 'dishonest act or false statement.' The district court here failed to consider whether the requirements of Rule 609(a) were met." Third, the jury may have thought plaintiff had something to hide when she took the fifth. The Court of Appeals explains:

the danger of unfair prejudice is high when a jury is told that a witness declined to answer a question by invoking the Fifth Amendment; the implication is, at best, that the witness refused to answer because she had something to hide. We tolerate some danger of prejudice from such inferences in civil cases, unless it substantially outweighs the probative value of those inferences. Here, the way in which Woods’s Fifth Amendment invocation was raised and later argued at closing elevated the prejudice to an intolerable level. Woods’s Fifth Amendment invocation was repeatedly emphasized—defense counsel raised it during Woods’s cross examination, the district court instructed the jury on it, and defense counsel argued it during his summation. Although defense counsel attempted to moderate this line of argument, see J. App’x 632 (“I am not hanging my hat on [the] Fifth Amendment invocation.”), he did so only after forcefully highlighting the inferences that the jury was permitted to draw. In arguing that the entire case hinged on Woods’s credibility, defense counsel told the jury “you are permitted in this case to infer that Ms. Woods was the subject of a government grand jury investigation, was accused of fraud, lying, fabricating events, and misrepresenting facts to the government and was then convicted of a crime.” Id. Defense counsel’s statement was consistent with the district court’s instruction, but the inferences that the jury was permitted to draw did not necessarily mean anything with respect to Woods’s credibility or character

for truthfulness.