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Can Defendant Not Yet Criminally Charged Obtain Stay Of Civil Litigation To Preserve Right Against Self-Incrimination?

By on February 16, 2017 in Litigation with 0 Comments

Sometimes a civil defendant may face potential criminal prosecution for the same events upon which the defendant was sued. As part of the civil litigation, the defendant may be called to provide testimony at deposition or trial that could be self-incriminating. Naturally, the defendant would not want to testify and may avoid doing so by asserting his or her Fifth Amendment privilege against self-incrimination. However, by refusing to testify, the defendant may hurt his or her civil defense. Thus, the defendant is between a rock and a hard place. Is the defendant’s predicament grounds for obtaining a stay of their civil litigation? What if the defendant has not yet been charged with a crime but rather merely faces the possibility of future criminal prosecution? This article probes these issues.

There is no constitutional authority preventing a defendant in a criminal case from having to make the difficult decision whether to assert their Fifth Amendment privilege in a related civil case against them. See State v. Kobrin Sec., Inc., 111 N.J. 307, 313 (1988). “That the exercise of the privilege may pose difficult choices for litigants poses no obstacle… to the continuation of the civil litigation. ‘Rather, the alleviation of tension between constitutional rights has been treated as within the province of a court’s discretion in seeking to assure the sound administration of justice.” Kobrin Sec., 111 N.J. at 313.

A court may find that staying the civil litigation would unjustifiably delay or deny the civil plaintiff’s compensation and remedy due. Notably, it is not the civil plaintiff’s burden to prove their right to proceed with civil litigation. Rather, the defendant must demonstrate how the burdens imposed by the civil litigation outweigh the public interest in swift proceedings. Thereafter, “[t]he trial court shall… exercise its discretion to mete out justice in both the civil and criminal litigations.” Kobrin Sec., 111 N.J. at 316.

The following are factors a court may consider in determining whether to stay civil litigation because of a defendant’s pending criminal prosecution:

  1. Whether the defendant has been criminally charged or merely faces the possibility of being criminally charged. See National Freight, Inc. v. Ostroff, 133 N.J. Super. 554 (Law Div. 1975).
  2. If the civil litigation and criminal prosecution are nearly identical in scope, this would tend to favor staying the civil litigation during the criminal prosecution. Kobrin Sec., 111 N.J. at 314. However, “the fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter.” Id.
  3.  “[W]hether refusing to stay discovery would impose undue hardship on a defendant and would thereby expose to unnecessary adverse consequences the defendant exercising the constitutional privilege.” Kobrin Sec., 111 N.J. at 314.
  4.  “[W]hen relief is sought to prevent continued injury to the public, such as that caused by the continued dissemination of unapproved drugs, the civil proceeding should not be stayed except in the most unusual circumstances.” Id.

If the defendant has not yet been charged with a crime but rather merely faces the possibility of future criminal prosecution, the defendant is less likely to obtain a stay of their civil proceeding. See National Freight, Inc. v. Ostroff, 133 N.J. Super. 554, 559 (Law Div. 1975). In National Freight, over 100 criminal complaints had issued out of municipal court charging the defendant with larceny, embezzlement, forgery, and conspiracy to defraud the plaintiff. However, the defendant had not yet been indicted by a grand jury. Thereafter, the plaintiff filed a civil complaint against the defendant. The criminal and civil complaints against the defendant shared the same factual basis. The defendant moved to stay the civil proceedings against him until the criminal proceedings against him concluded, claiming that to allow the plaintiff’s civil complaint to proceed would compromise his Fifth Amendment right against self-incrimination. The court denied the defendant’s motion, allowing the plaintiff’s civil complaint to proceed. In holding so, the court relied upon the fact that the defendant had not been indicted and may never be indicted. The court recognized “the interests of the other parties will be jeopardized by a delay of the civil suit,” and that “[t]o compel other parties to sit supinely by while their rights or possibility of recovery are eroded is to invite contempt for the law as well as to permit any guilty party to secrete or dissipate the fruits of his wrongdoing.”

In summary, a defendant facing both criminal prosecution and civil litigation is not entitled to a civil stay simply to avoid having to decide whether to assert their Fifth Amendment privilege against self-incrimination. Furthermore, if the defendant has not yet been charged with a crime but merely faces the possibility of future criminal prosecution, the defendant is less likely to obtain a stay of their civil litigation.

Questions regarding this article may be sent to Publications@Capehart.com.

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