The Fifth Amendment to the U.S. Constitution prevents anyone from being “compelled in any criminal case to be a witness against himself.” A party in a Texas civil case can “plead the Fifth” during discovery to avoid answering questions in a deposition if the party reasonably believes the answer might incriminate him in a criminal case. A plaintiff cannot, however, use the Fifth Amendment to prevent the other party from obtaining information they need to prepare a defense. A trial court can impose sanctions when a party uses the Fifth Amendment privilege offensively, but the court must consider whether remedial steps could solve the issue. The court may also impose sanctions when a party wrongfully invokes the Fifth Amendment.
In a recent Texas divorce case, the husband faced serious sanctions after raising the Fifth Amendment during his deposition. In June 2015, the wife filed for divorce and the husband filed a counterpetition. The wife alleged the husband had assaulted her and committed adultery. She also alleged he hid community assets, wrote fraudulent checks to third parties and cashed them himself, and conveyed community property to his sister. The husband alleged the wife also secreted assets and filed false charges against him for family violence assault.
When the wife’s attorney sent notice of the date of the husband’s deposition, his attorney responded it would be “futile” because the husband’s criminal attorney was likely to advise him to “plead the fifth” due to the pending criminal charges. During deposition, the husband refused to answer many questions on the grounds his answer might incriminate him in the pending criminal case, including some that would not be covered by the Fifth Amendment privilege. He repeatedly asserted his Fifth Amendment privilege regarding “anything that has to do with financials…” He refused to answer questions regarding his income, assets, and a list of property. He also refused to identify documents. There was no record of either the wife’s or the husband’s attorney explaining to him why he could not invoke his Fifth Amendment privilege in response to many of the questions asked.
The wife moved for sanctions against the husband for improperly invoking the Fifth Amendment to block discovery. She asked the court to strike his pleadings, enter default judgment, bar his claims for affirmative relief, and prohibit him from presenting evidence at trial and bar his opposition on the issues where he invoked the Fifth Amendment.
In the hearing, the husband’s attorney presented her letters to the wife’s attorney stating the husband had been advised to plead the Fifth Amendment. The attorney argued he was not trying to avoid discovery, but was concerned the wife might bring additional criminal charges against him.
The trial court found the husband invoked the privilege to abuse the discovery process. The trial court prohibited the husband from testifying in the final hearing and from introducing evidence on his affirmative request for relief.
The wife then moved for partial summary judgment. The husband responded with an affidavit stating he was acquitted of the criminal charges and had not invoked the privilege to thwart discovery. The court granted the wife’s motions to strike his petition and affidavit and for partial summary judgment. The husband appealed.
The appeals court found the sanctions issued by the trial court were “death penalty sanctions.” A death penalty sanction is when one adjudicates the claim without allowing presentation of the merits. Death penalty sanctions are only appropriate in severe cases where the “party’s conduct justifies a presumption that its claims or defenses lack merit.” Although the trial court has broad discretion in issuing sanctions, sanctions must be just and in accordance with due process. The Texas Supreme Court is only just when there is a direct relationship between the offensive conduct and the sanction. Sanctions cannot be excessive. Furthermore, sanctions should not be imposed on the party if the conduct was attributable solely to counsel.
The husband’s divorce attorney was present at his deposition. She had warned the wife’s attorney that he had been instructed to invoke the Fifth Amendment privilege. The husband invoked the privilege during questions that were not subject to the Fifth Amendment, but stated he was doing so on advice of counsel. The appeals court found the trial court had not inquired into whether the party or his attorney was responsible for his belief he could raise the privilege. Therefore, there was no evidence that the sanctions were imposed on the offender.
A trial court must consider whether lesser sanctions are appropriate before issuing death penalty sanctions. In most cases, the trial court should actually try lesser sanctions before going so far as to strike pleadings. If the court does not first try lesser sanctions, it must at least clearly explain on the record why lesser sanctions could not promote compliance.
The appeals court found that the wife had not sought to compel the answers to questions where the husband improperly raised the Fifth Amendment. The husband was not told that his pleadings could be stricken and he could be prohibited from presenting evidence in defense of the wife’s petition. Furthermore, there was no record the trial court had analyzed available sanctions and explained why the sanctions it imposed were appropriate. The trial court here had not tested lesser sanctions or explained why they would be inappropriate.
The appeals court reversed the trial court’s judgment, deleted all sanctions against the husband, and remanded the case.
As seen in this case, a trial court cannot impose sanctions so severe they prevent a party from presenting a defense without trying lesser sanctions or documenting why lesser sanctions would not work. Such serious sanctions in a divorce case can have significant consequences, especially as to property distribution. If you are facing divorce, you need an experienced Texas divorce attorney fighting for you. Contact McClure Law Group at 214.692.820 to discuss your case.
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