Pleading the Fifth in Florida Civil Cases – When Self-Incrimination Arises

In Florida, pleading the Fifth in a civil case brings unique aspects absent from a criminal case. This article focuses on the legal foundation to a witness or defendant’s right against self-incrimination in the civil case context. Be aware that pleading the fifth in civil suits carries a negative inference against the witness that should not be taken lightly. Before exercising the fifth amendment against self-incrimination in a Florida civil case, a lawyer must be consulted to detail the exact risks and impacts of pleading the fifth. If you have questions on pleading the fifth in a civil case, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

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The Florida and U.S. Constitutions provide broad and fundamental rights against self-incrimination through deposition testimony or document production responses, which must be liberally construed in favor of protecting those rights. 

The Florida Constitution’s Article 1 § 9 (due process) states “[n]o person shall be . . . compelled in any criminal matter to be a witness against oneself.” Fla. Const. Art. 1 § 9 (“Due process”). Likewise, the United States Constitution’s Fifth Amendment states “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.C.A. Const. Amend. V and XIV.  The right against self-incrimination provided in the Florida Constitution offers more protection than the right provided by the Fifth Amendment to the United States Constitution. State v. Horwitz, 191 So. 3d 429, 439 (Fla. 2016) (upholding right against self-incrimination); Rios v. State, 277 So. 3d 1102, 1106 (Fla. 5th DCA 2019) (rev’g denial of motion to suppress statements under privilege against self-incrimination).

Florida’s right against self-incrimination is part of the Florida Declaration of Rights, a series of rights so basic that the Constitution’s framers accorded them a place of special privilege. Myers v. State, 211 So. 3d 962, 970 (Fla. 2017) (upholding right to suppress self-incriminating statements). As such, the privilege against self-incrimination is a fundamental principalId.; Pisciotti v. Stephens, 940 So. 2d 1217, 1220 (Fla. 4th DCA 2006) (upholding right against self-incrimination). The constitutional privilege against self-incrimination exists primarily to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action. Id.

The Fifth Applies to Testimony and Document Production

A party is both privileged from speaking against himself and from producing documentary evidence, and the privilege unquestionably extends to protect against compelled document production. Kanji v. Valli, 621 So. 2d 750, 751–52 (Fla. 3d DCA 1993) (holding person could not be compelled to produce documents under Fifth, as potential injury they might suffer in a criminal case outweighed civil discovery needs); State ex rel. Byer v. Willard, 54 So. 2d 179, 182 (Fla. 1951) (“Whether a person be compelled to supply evidence against himself by word of mouth or by bringing in documents or records tending to incriminate him . . . the result is the same”).

The privilege against self-incrimination is triggered with a document because the act of production would entail implicit statements of fact; e.g., by producing documents in compliance with a subpoena, “the witness would admit that the papers existed, were in his possession or control, and were authentic.” Aguila v. Frederic, 306 So. 3d 1166, 1171 (Fla. 3d DCA 2020); see also Shimon v. R.B., 318 So. 3d 580, 582 (Fla. 3d DCA 2021) (rev’g order compelling documents that could be self-incriminating).

The Fifth Applies in Civil Lawsuits, Not Just Criminal Prosecutions

One aspect of the privilege against self-incrimination is a witness’s right in a civil proceeding to refuse to respond to questions or document requests on the grounds that his answer may tend to incriminate him. Shimon v. R.B., 318 So. 3d 580, 582 (Fla. 3d DCA 2021) (reversing order compelling document production where reasonable fear of criminal prosecution was not completely eliminated); Aguila v. Frederic, 306 So. 3d 1166, 1171 (Fla. 3d DCA 2020) (holding Fifth Amendment privilege against self-incrimination applied to information regarding driver’s possession and use of a cellular phone when pedestrian struck and killed by driver); Wahnon v. Coral & Stones Unlimited Corp., 314 So. 3d 487, 491–92 (Fla. 3d DCA 2020) (rev’g order compelling diamond merchant to provide information, including location of diamonds, in action by diamond company asserting replevin and civil theft).

For more case law on this point, see also Pisciotti v. Stephens, 940 So. 2d at 1220–21 (upholding Fifth Amendment right of personal representative of parents’ estates to not answer questions or file final accountings in suit by brother for funds and other assets wrongfully taken); J.R. Brooks & Son, Inc. v. Donovan, 592 So. 2d 795, 796 (Fla. 3d DCA 1992) (holding self-incrimination privilege applied to employees of company, in action against company that employees were negligent in a shooting); Fox v. Kelner, 574 So. 2d 311, 311 (Fla.3d DCA 1991) (holding all questions were subject to privilege, as “any of [witness’s] responses may tend to incriminate her”); Rainerman v. Eagle Nat’l Bank of Miami, 541 So. 2d 740, 741 (Fla. 3d DCA 1989) (holding borrower had right to assert privilege against self-incrimination to all questions in civil case for breach of promissory note).

The Third District Court of Appeal and other Florida appellate courts have upheld the right against self-incrimination in civil cases ranging from breaches of a promissory note, to replevin and civil theft of gemstones in the diamond trade, to attorney mismanagement, to traffic accidents, to suit against a company for an employee shooting, and so on. Id. (these appellate courts will readily uphold the privilege from compelled testimony and production on the alleged fraudulent sale of breeding rights to a prize-winning horse).

The Test for the Fifth Against Self-Incrimination in Civil Cases

A witness giving deposition testimony in a civil case is generally entitled to invoke the Fifth Amendment whenever there is a realistic possibility that his answer to a question can be used in any way to convict him of a crime, and it need not be probable that a criminal prosecution will be brought or that the witness’s answer will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer will be used against him. Aguila, 306 So. 3d at 1171 (Fla. 3d DCA 2020) (upholding privilege); Appel v. Bard, 154 So. 3d 1227, 1229 (Fla. 4th DCA 2015) (upholding privilege). As recently stated by the Appel court:

A witness is generally entitled to invoke the Fifth Amendment privilege against self-incrimination whenever there is a realistic possibility that his answer to a question can be used in any way to convict him of a crime. It need not be probable that a criminal prosecution will be brought or that the witness’s answer will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer will be used against him. Moreover, the Fifth Amendment forbids not only the compulsion of testimony that would itself be admissible in a criminal prosecution, but also the compulsion of testimony, whether or not itself admissiblethat may aid in the development of other incriminating evidence that can be used at trial. See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). 

Appel at 1229

The privilege is inapplicable only ‘if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness.’ Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896).

Appel at 1229

Appel at 1229 (italicized emphasis in original). This is an incredibly broad and all-encompassing privilege. Id. This is the most recent, current, and controlling law for this Court. Aguila at 1171 (Fla. 3d DCA 2020).

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Thus, even where no criminal prosecution or investigation is pending, where a person is afraid that his testimony in non-criminal proceedings might subject him to future criminal prosecution (e.g., involves accusations of fraud or misappropriated money or property like here), he has the constitutional privilege to refuse to testify or produce documents. The Florida Bar v. Massfeller, 170 So. 2d 834, 838 (Fla. 1964) (attorney in Bar proceeding for misappropriation of client money had privilege to refuse to testify, given fear that testimony might subject him to criminal prosecution.); Shimon, 318 So. 3d at 582 (Fla. 3d DCA 2021) (“we agree [] that the possibility that a criminal investigation could be re-opened in the future is not so remote as to eliminate his reasonable fear of prosecution. For this reason, he cannot be compelled to give testimony over a claim of his Fifth Amendment right.”).

The Fifth Must Be Applied Broadly and Liberally in Civil Cases

A person’s fundamental right against self-incrimination must be broadly and liberally construed, in order to secure protections designed to accomplish the purpose of the right. Shimon at 582 (Fla. 3d DCA 2021) (“The United States Supreme Court ‘has always broadly construed the Fifth Amendment’s protection”); Myers, 211 So. 3d at 966 (Fla. 2017) (broadly construing right against self-incrimination to reverse conviction); Jones v. Stoutenburgh, 91 So. 2d 299, 303 (Fla. 1956) (upholding right against self-incrimination, broadly construed); see also Wilson v. State, 242 So. 3d 484, 491 (Fla. 2d DCA 2018) (broadly construing right against self-incrimination to reverse conviction); Fountaine v. State, 460 So. 2d 553, 554 (Fla. 2d DCA 1984) (immunity statute should be liberally construed to accomplish purpose of insulating witness against incriminating effect of testimony). 

A person is exempt both from answering questions that directly incriminate and also from answering questions that in anywise indirectly tend to incriminate. Brizzie v. State, 120 So. 2d 27, 29 (Fla. 2d DCA 1960) (upholding right against self-incrimination).  For this reason, no technical limitations should be placed by the Court or the law upon the terms employed by the Court to ensure liberal and broad protection of the witness. Willard, 54 So. 2d at 181–82 (Fla. 1951). 

The right of a person to be free from the necessity of giving evidence against himself is inalienable, and must be protected at the risk that an individual criminal may go without punishment, much less that a civil case may be set back. Collins v. State, 143 So. 2d 700, 702 (Fla. 2d DCA 1962) (upholding privilege). Waiver of this privilege must not be lightly inferred, and the Court must generally indulge every reasonable presumption against finding a waiver. Pisciotti, 940 So. 2d 1220.

Application of the Fifth to All Potentially Relevant Matters

When analyzing any discovery requested and its self-incrimination implications, the Court must consider that generally all relevant matters may be admissible evidence in a criminal prosecution, unless expressly prohibited by law—and thus are subject to the privilege. Ballard v. State, 66 So. 3d 912, 917–18 (Fla. 2011) (introduction of defendant’s engaging in an illegal sexual relationship with murder victim’s minor daughter was relevant to establish motive and inextricably intertwined with testimony of the chain of events, and thus was proper); Dorsett v. State, 944 So. 2d 1207, 1213–18 (Fla. 3d DCA 2006) (introduction of defendant’s prior uncharged drug transactions was relevant to drug transaction charged, information was relevant to establish entire context of events leading up to charged offense, to establish rationale for other parties’ acts and why no drugs found on defendant).

Information that goes to intent, motive, preparation, plan or common plan, knowledge, identity, scheme, and absence of mistake or accident may be relevant and admissible evidence in a criminal prosecution—and thus subject to the privilege against self-incrimination. Williams v. State, 110 So. 2d 654, 662–63 (Fla. 1959) (holding information on wrongs and crimes outside the charges is relevant and admissible if it tends to show a common scheme or plan); Dorsett, 944 So. 2d at 1212 (“evidence totally unrelated to the charged offenses” is proper, relevant, and “admissible to prove a material fact in issue, such as motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”); Harden v. State, 87 So. 3d 1243, 1249 (Fla. 4th DCA 2012) (finding that certain MySpace messages were relevant because they showed motive). Information relating to prior bad acts are relevant and admissible. Dorsett, 944 So. 2d at 1212.

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Other information held generally relevant and admissible evidence in a criminal prosecution under Florida law—and thus subject to the privilege against self-incrimination—is that which is inextricably intertwined with the claims being prosecuted. Id. Such inextricably intertwined information is that which is necessary to: (1) adequately describe the events leading up to the charged wrongs; (2) establish the entire context out of which the charged wrongs arose; (3) provide an intelligent account of the wrongs charged; or (4) adequately describe the wrong itself.  See Hunter v. State, 660 So. 2d 244, 251 (Fla. 1995); Foster v. State, 679 So. 2d 747, 753 (Fla. 1996); Griffin v. State, 639 So. 2d 966, 970 (Fla. 1994); Ruffin v. State, 397 So. 2d 277, 280 (Fla. 1981); Vail v. State, 890 So. 2d 373, 376 (Fla. 3d DCA 2004); Burgos v. State, 865 So. 2d 622, 624 (Fla. 3d DCA 2004); Austin v. State, 500 So. 2d 262, 265 (Fla. 1st DCA 1986); Smith v. State, 866 So. 2d 51, 52 (Fla. 2004); Gray v. State, 873 So. 2d 374 (Fla. 2d DCA 2004); Canion v. State, 793 So. 2d 80, 81 (Fla. 4th DCA 2001).

All of these wide-ranging matters are thus subject to constitutional protection against self-incrimination. Id. The Third District Court of Appeal has specifically held that questions related to potential motive and knowledge of the deponent are protected and subject to the privilege against self-incrimination. Stewart v. Mussoline, 487 So. 2d 96, 96 (Fla. 3d DCA 1986) (holding questions should not be answered where criminal action could theorize that witness “was motivated by financial gain [] any answers that she may give to questions relating to financial matters, asked at a deposition taken to determine her ability to support her children, may tend to incriminate her.”).

The Court’s Discretion to Enforce the Fifth Against Self-Incrimination in Civil Cases

When presented with a Fifth Amendment privilege objection during discovery in a civil case, the Court must exercise its discretion and determine whether it is reasonably possible that answers to interrogatories, deposition questions, or document requests could evoke a response forming a “link in the chain” of evidence which might lead to criminal prosecution. Shimon, 318 So. 3d at 582 (Fla. 3d DCA 2021) (providing test and upholding the right against self-incrimination thereunder); Aguila, 306 So. 3d at 1171 (Fla. 3d DCA 2020) (test); Childs v. Solomon, 615 So. 2d 865, 866 (Fla. 3d DCA 1993) (same); Rainerman, 541 So. 2d 741 (same); Appel, 154 So. 3d 1229 (same); DeLisi v. Bankers Ins. Co., 436 So. 2d 1099, 1101 (Fla. 4th DCA 1983) (reversing order compelling witness to answer civil deposition questions).

In analyzing the assertion of constitutional privilege, “it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer might be dangerous because injurious disclosure could result.” Aguila at 1171 (Fla. 3d DCA 2020) (quoting Hoffman v. U.S., 341 U.S. 479, 486–87 (1951)).

Absent a determination that it is “perfectly clear, from a careful consideration of all the circumstances of the case, that the witness is mistaken, and that the answers cannot possibly have such tendency to ‘incriminate,’ the trial court is to defer to the asserted privilege.” Aguila at 1172 (Fla. 3d DCA 2020) (quoting U.S. Supreme Court in Hoffman, 341 U.S. at 488, and Magid v. Winter, 654 So. 2d 1037, 1039 (Fla. 4th DCA 1995)). As Justice Marshall stated in Pillsbury Co. v. Conboythe “privilege is inapplicable only ‘if the testimony [or document production] sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness.’” Pillsbury, 459 U.S. 248, 266 n.1 (1983).

Fraud is a crime. §§ 817.02–817.569, Fla. Stat. (2021). Florida Statutes §§ 817.02–817.569 criminalize essentially every version of conceivable fraud in Florida. Id. These include making a false statement to obtain property or credit (§ 817.03), false statements as to financial condition (§ 817.05), false entries in books of a business entity (§ 817.15), false reports by officers with intent to defraud (§ 817.16), fraudulent issue of stock certificate or indicia of membership interest (§ 817.19), issuing stock or obligation of a corporation beyond authorized amounts (§ 817.20), false and deceptive sales (§ 817.40), obtaining a promissory note by false representation (§ 817.54), and fraud involving a security interest (§ 817.562). Id. Tax fraud and attempt to evade or defeat taxes is a crime. 26 U.S.C. § 7201 (2021).

Organized fraud is a crime. § 817.034, Fla. Stat. (2020). Organized fraud includes the elements of: (1) engaging in or furthering a systematic, ongoing course of conduct (2) with (a) intent to defraud, or (b) intent to obtain property by false or fraudulent pretenses, representations, or promises, or willful misrepresentations of a future act, (3) resulting in temporarily or permanently depriving any person of the right to property or a benefit therefrom, or appropriating the property to one’s own use or to the use of another person not entitled thereto. Id.; Pizzo v. State, 945 So. 2d 1203, 1207 (Fla. 2006).

Similarly, theft is a crime. § 817.014, Fla. Stat. (2020); Pizzo at 1207 (theft is (1) knowingly (2) obtaining or using, or endeavoring to obtain or use, property of another (3) with intent to deprive the person of a right to the property or a benefit therefrom, or to appropriate the property to one’s own use or to the use of any person not entitled thereto.).

Indirect Criminal Activity Triggers the Fifth in Civil Cases

Assisting a spouse to organized fraud and lending fraud, directly or through their business ventures, is a crime. Pizzo v. State, 910 So. 2d 287, 290–91 (Fla. 2d DCA 2005) (holding issue of whether defendant had knowledge of an assisted in her husband’s scheme in defrauding customers to mortgage fraud was jury question). Conspiracy to a fraud and participation in a fraud is a crime. See, e.g., U.S. v. Haimowitz, 725 F.2d 1561, 1569–76 (11th Cir. 1984) (“record supports the finding . . . that [defendant] conspired to and participated in a scheme to defraud”). Misrepresenting ownership interests (direct or indirect) in business assets, drafting of contracts for property purchases, making misrepresentations to obtain and maintain a loan for business, making false financial statements, and being “aware” that checks are being signed for property to persons that do not have interests in that property, all may be used to evidence of participation and conspiracy in criminal fraud. Id. at 1569.

Aiding and abetting fraud is a crime; concealment of fraud is a crime. See Swanson v. State, 713 So. 2d 1097, 1099–1100 (Fla. 4th DCA 1998); Jones v. State, 365 So. 2d 774, 775 (Fla. 1st DCA 1978) (defendant who stole property and also aided in its concealment could be found guilty of both larceny and the receiving, retaining, disposing of or aiding in the concealment of stolen property). To prosecute aiding and abetting fraud criminally, the State must establish: (1) that the defendant helped the person who actually committed the crime by doing or saying something that caused, encouraged, incited or otherwise assisted that person to commit the crime, and (2) that the defendant intended to participate in the crime. Swanson at 1099–1100.

Knowingly altering financial statements, or making false written or oral statements of financial condition, is a crime. See United States v. Williams, 785 Fed. App’x 692, 696 (11th Cir. 2019). Using the mail while committing or aiding fraud is a crime, including as to loans and collateral securing loans, and intent and knowledge are elements of that crime. 18 U.S.C.A. § 1341 (Frauds and swindles):

Whoever, having devised or intended to devise any scheme or artifice to defraud, or for obtaining money or property by means or false of fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting to do so, place in any post office . . . or knowingly causes to be delivered . . .

18 U.S.C.A. § 1341.

Summarizing the Fifth Right Against Self-Incrimination in Civil Cases

In sum, fraud, theft, participation in fraud, conspiracy to fraud, organized fraud, and aiding and abetting fraud (including with and through family members in business ventures) are all crimes, including the creation of false financial statements, tax fraud, fraudulent management of property and securities, and various other permutations of fraud under the Florida and federal criminal code.

If a civil lawsuit arises from allegations of fraud, theft, and fraud-related activity, there may be a reasonable possibility that discovery thereon could be used in a criminal investigation or prosecution—thus, the Fifth right against self-incrimination may be triggered. Shimon at 582; Aguila at 1171; Wahnon, 314 So. 3d at 491–92; Childs at 866; Rainerman at 741; J.R. Brooks, 592 So. 2d at 796; Fox, 574 So. 2d at 311; Appel at 1229; DeLisi at 1101. 

Before exercising the fifth amendment against self-incrimination in a Florida civil case, a lawyer must be consulted to detail the exact risks and impacts of pleading the fifth. If you have questions on pleading the fifth in a civil case, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

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