Admissibility of Evidence - Privilege - Fifth Amendment Privilege against Self-Incrimination
The Fifth Amendment privilege against self-incrimination provides that a party may refuse to testify where his testimony may tend to incriminate him of a crime.[1] This privilege is applicable in matrimonial actions, although it may be waived, either affirmatively or by the conduct of the parties.[2]
Since adultery is a crime, a spouse accused of adultery in a divorce action cannot be compelled to testify to his or her own adultery if the constitutional privilege against self-incrimination is raised and is applicable.[3]
The rule that defendant's invocation of his Fifth Amendment privilege against self- incrimination on the stand is not to be taken into account in weighing the evidence against him does not extend to civil cases, where the parties are on an equal footing and the only disadvantage threatened is liability to compensate the adversary for damages.[4]
While a party's invocation of the privilege against self-incrimination can be used to draw an adverse inference against that party in a civil case, no inference arises from the invocation of the privilege by a nonparty witness.[5]
An attorney has no exposure to self-incrimination with regard to personal property he is holding for his client and, thus, has no Fifth Amendment right against the production of a tape belonging to his client, nor can he assert that right on behalf of his client, against whom no compulsion has been directed.[6]
The Fifth Amendment privilege against self-incrimination applies to civil proceedings, including Family Court proceedings. A witness may refuse to testify on the grounds that it will tend to incriminate him of a crime. [7]
CPLR 4501 provides that a witness may not be compelled to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture. It provides: “A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish that he owes a debt or is otherwise subject to a civil suit. This section does not require a witness to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture, nor does it vary any other rule respecting the examination of a witness.”
A proceeding for a violation of a family court order is considered penal or criminal in nature within the meaning of the Fifth Amendment. The civil and criminal contempt provisions of the Judiciary Law apply to proceedings over which the Family Court properly has jurisdiction. Any violation of a Family Court order directing a party to do or refrain from doing an act is punishable under those provisions. Judiciary Law §753 provides that civil contempt is punishable by fine, imprisonment, or both. The statute does not provide limits on these punishments. While a contempt proceeding under Article 19 of the Judiciary Law might be characterized as a civil proceeding the penalty that may imposed in such a proceeding leads to a fine and imprisonment. Thus, the proceeding must be considered penal or criminal in nature within the meaning of both CPLR 4501, and the Fifth Amendment of the Constitution of the United States, as interpreted in Illinois v. Vitale. [8]
[1] In Slater v. Slater, 78 Misc.2d 13, 355 N.Y.S.2d 943 (Sup., 1974) the court held that one who claims privilege against self-incrimination may invoke privilege when he has reasonable cause to fear the danger of incrimination. The mere imaginary possibility of prosecution is insufficient to stave off the direction to respond. The privilege against self-incrimination protects not only answers which alone could support a criminal conviction, but all responses which could feed the chain of evidence needed to prosecute.
[2] In Taber v. Herlihy, 570 N.Y.S.2d 723 (3d Dept.,1991), a custody proceeding, the Appellate Division held that the mother waived any Fifth Amendment privilege when, during her direct testimony, she voluntarily stated that she had smoked marihuana on an occasional basis in past.
In M. v. S., 37 A.D.2d 915, 325 N.Y.S.2d 504 (4th Dept., 1971), a proceeding to establish paternity, the court held that by testifying in his own behalf that he was not the father of child the witness waived the privilege against self-incrimination, and it was error to permit him to refuse, after so testifying in his own behalf, to answer questions on the ground of self-incrimination.
In Abramowitz v. Abramowitz, 137 N.Y.S.2d 442 (Sup.,1954) the court held that adultery being a crime, a spouse accused thereof in divorce action cannot be compelled to testify to his or her own adultery if the constitutional privilege against self-incrimination is raised and is applicable. The Constitutional privilege against self-incrimination, unless timely invoked, is waived, except where incriminating testimony is elicited, without objection, from the party unrepresented by counsel and unadvised of his or her rights with respect thereto. Where the wife had objected to being compelled to give testimony against herself on the issue of adultery, but had failed to base her objection on her constitutional privilege against self-incrimination, the privilege was waived.
[3] Abramowitz v. Abramowitz, 137 N.Y.S.2d 442 (Sup., 1954).
[4] Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31, 427 N.Y.S.2d 961, 405 N.E.2d 205.
In Dolezal v. Dolezal, 218 A.D.2d 682, 630 N.Y.S.2d 550 (2d Dept.,1995) the Appellate Division held that the trial court in a matrimonial action did not err in drawing an unfavorable inference from wife's assertion of her Fifth Amendment right against self-incrimination but not from the husband's similar assertion, as the wife invoked her privilege some 14 times on a topic which related to wife's ability to act in a custodial capacity and tendency to place her own interests above those of children, while the husband invoked his right only once, regarding an incident not reflective of his ability as a father.
In Nolan v. Nolan, 107 A.D.2d 190, 486 N.Y.S.2d 415 ( 3d Dept.,1985), an action for a divorce, the Appellate Division held that the trial court properly inferred marital misconduct on wife's part, where the wife availed herself of her Fifth Amendment right against self-incrimination when questioned regarding an alleged adulterous relationship.
In Fritz v. Fritz, 88 A.D.2d 778, 451 N.Y.S.2d 519 (4th Dept.,1982), an action for a divorce, the husband's invocation of Fifth Amendment privilege when asked whether he had sexual relations with certain named women permitted the court to draw an adverse inference against him.
[5] State v. Markowitz, 273 A.D.2d 637, 710 N.Y.S.2d 407 (3d Dept., 2000).
[6] Matter of Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66, 453 N.Y.S.2d 662
439 N.E.2d 378 (1982).
[7] See, Matter of Figueroa v. Figueroa, 160 A.D.2d 390, 391, 553 N.Y.S.2d 753; Matter of De Bonis v. Corbisiero, 155 A.D.2d 299, 300, 547 N.Y.S.2d 274, Matter of Gladys H, 235 A.D.2d 841, 653 N.Y.S.2d 392 (3d Dept 1987).
[8] 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228; See also Dutchess County Department of Social Services v James F, 41 Misc.2d 309 (1988).
The Fifth Amendment privilege against self-incrimination provides that a party may refuse to testify where his testimony may tend to incriminate him of a crime.[1] This privilege is applicable in matrimonial actions, although it may be waived, either affirmatively or by the conduct of the parties.[2]
Since adultery is a crime, a spouse accused of adultery in a divorce action cannot be compelled to testify to his or her own adultery if the constitutional privilege against self-incrimination is raised and is applicable.[3]
The rule that defendant's invocation of his Fifth Amendment privilege against self- incrimination on the stand is not to be taken into account in weighing the evidence against him does not extend to civil cases, where the parties are on an equal footing and the only disadvantage threatened is liability to compensate the adversary for damages.[4]
While a party's invocation of the privilege against self-incrimination can be used to draw an adverse inference against that party in a civil case, no inference arises from the invocation of the privilege by a nonparty witness.[5]
An attorney has no exposure to self-incrimination with regard to personal property he is holding for his client and, thus, has no Fifth Amendment right against the production of a tape belonging to his client, nor can he assert that right on behalf of his client, against whom no compulsion has been directed.[6]
The Fifth Amendment privilege against self-incrimination applies to civil proceedings, including Family Court proceedings. A witness may refuse to testify on the grounds that it will tend to incriminate him of a crime. [7]
CPLR 4501 provides that a witness may not be compelled to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture. It provides: “A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish that he owes a debt or is otherwise subject to a civil suit. This section does not require a witness to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture, nor does it vary any other rule respecting the examination of a witness.”
A proceeding for a violation of a family court order is considered penal or criminal in nature within the meaning of the Fifth Amendment. The civil and criminal contempt provisions of the Judiciary Law apply to proceedings over which the Family Court properly has jurisdiction. Any violation of a Family Court order directing a party to do or refrain from doing an act is punishable under those provisions. Judiciary Law §753 provides that civil contempt is punishable by fine, imprisonment, or both. The statute does not provide limits on these punishments. While a contempt proceeding under Article 19 of the Judiciary Law might be characterized as a civil proceeding the penalty that may imposed in such a proceeding leads to a fine and imprisonment. Thus, the proceeding must be considered penal or criminal in nature within the meaning of both CPLR 4501, and the Fifth Amendment of the Constitution of the United States, as interpreted in Illinois v. Vitale. [8]
[1] In Slater v. Slater, 78 Misc.2d 13, 355 N.Y.S.2d 943 (Sup., 1974) the court held that one who claims privilege against self-incrimination may invoke privilege when he has reasonable cause to fear the danger of incrimination. The mere imaginary possibility of prosecution is insufficient to stave off the direction to respond. The privilege against self-incrimination protects not only answers which alone could support a criminal conviction, but all responses which could feed the chain of evidence needed to prosecute.
[2] In Taber v. Herlihy, 570 N.Y.S.2d 723 (3d Dept.,1991), a custody proceeding, the Appellate Division held that the mother waived any Fifth Amendment privilege when, during her direct testimony, she voluntarily stated that she had smoked marihuana on an occasional basis in past.
In M. v. S., 37 A.D.2d 915, 325 N.Y.S.2d 504 (4th Dept., 1971), a proceeding to establish paternity, the court held that by testifying in his own behalf that he was not the father of child the witness waived the privilege against self-incrimination, and it was error to permit him to refuse, after so testifying in his own behalf, to answer questions on the ground of self-incrimination.
In Abramowitz v. Abramowitz, 137 N.Y.S.2d 442 (Sup.,1954) the court held that adultery being a crime, a spouse accused thereof in divorce action cannot be compelled to testify to his or her own adultery if the constitutional privilege against self-incrimination is raised and is applicable. The Constitutional privilege against self-incrimination, unless timely invoked, is waived, except where incriminating testimony is elicited, without objection, from the party unrepresented by counsel and unadvised of his or her rights with respect thereto. Where the wife had objected to being compelled to give testimony against herself on the issue of adultery, but had failed to base her objection on her constitutional privilege against self-incrimination, the privilege was waived.
[3] Abramowitz v. Abramowitz, 137 N.Y.S.2d 442 (Sup., 1954).
[4] Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31, 427 N.Y.S.2d 961, 405 N.E.2d 205.
In Dolezal v. Dolezal, 218 A.D.2d 682, 630 N.Y.S.2d 550 (2d Dept.,1995) the Appellate Division held that the trial court in a matrimonial action did not err in drawing an unfavorable inference from wife's assertion of her Fifth Amendment right against self-incrimination but not from the husband's similar assertion, as the wife invoked her privilege some 14 times on a topic which related to wife's ability to act in a custodial capacity and tendency to place her own interests above those of children, while the husband invoked his right only once, regarding an incident not reflective of his ability as a father.
In Nolan v. Nolan, 107 A.D.2d 190, 486 N.Y.S.2d 415 ( 3d Dept.,1985), an action for a divorce, the Appellate Division held that the trial court properly inferred marital misconduct on wife's part, where the wife availed herself of her Fifth Amendment right against self-incrimination when questioned regarding an alleged adulterous relationship.
In Fritz v. Fritz, 88 A.D.2d 778, 451 N.Y.S.2d 519 (4th Dept.,1982), an action for a divorce, the husband's invocation of Fifth Amendment privilege when asked whether he had sexual relations with certain named women permitted the court to draw an adverse inference against him.
[5] State v. Markowitz, 273 A.D.2d 637, 710 N.Y.S.2d 407 (3d Dept., 2000).
[6] Matter of Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66, 453 N.Y.S.2d 662
439 N.E.2d 378 (1982).
[7] See, Matter of Figueroa v. Figueroa, 160 A.D.2d 390, 391, 553 N.Y.S.2d 753; Matter of De Bonis v. Corbisiero, 155 A.D.2d 299, 300, 547 N.Y.S.2d 274, Matter of Gladys H, 235 A.D.2d 841, 653 N.Y.S.2d 392 (3d Dept 1987).
[8] 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228; See also Dutchess County Department of Social Services v James F, 41 Misc.2d 309 (1988).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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