A nonparty witness who responds to questioning by invoking the privilege against self-incrimination seriously can impair the party against whom the response suggests an unfavorable answer. The possible injury to a party's case is greatest when the invocation occurs unexpectedly at trial, but may cause equal damage when the privilege is relied on during discovery because the deposition of an unavailable witness may be read to the jury. In the past, courts and commentators generally opposed allowing such invocations in the jury's presence based on the belief that invocations lack credible evidentiary value because witnesses can invoke validly for a variety of reasons; and despite some arguable relevance, the highly prejudicial nature of an invocation intolerably taints the fairness of the trial process.' Consequently, those who opposed drawing conclusions about witnesses who rely upon the fifth amendment argued that the fact of invocation must be kept from juries, counsel must be prohibited from commenting on invocations that occur in court, and judges must be prevented from acknowledging that inferences may arise from the assertions of privilege. The belief was that the trial process must ignore a fifth amendment invocation regard-less of how unfair the result might be.
Charles H. Rabon, Jr.,
Evening the Odds in Civil Litigation:A Proposed Methodology for Using Adverse Inferences When Nonparty Witnesses Invoke the Fifth Amendment,
42 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss2/4