PA Update – Right to Remain Silent in the Face of Civil Litigation Upheld in Lycoming County Trial Court
Judge Lindhardt of the Lycoming County Trial Court addressed circumstances under which a civil litigant may assert their Fifth Amendment rights against self-incrimination at a deposition in Sweet v. The City of Williamsport, No. 20-CV-00512 (C.P. Lyc. Co. June 27, 2022 Linhardt, J.). The case arose out of a fatal motor vehicle accident in which Plaintiffs alleged that the pedestrian traffic control device at the intersection was not maintained properly leading to a collision and the death of the Decedent.
The City of Williamsport called for the deposition of the Defendant driver, Tyrone Dunn (“Mr. Dunn”), but Mr. Dunn’s attorney informed all parties that he would be advising Mr. Dunn to assert his “Fifth Amendment Right against self-incrimination in response to any questions about the facts and circumstances of the accident itself and his actions in that regard . . . .” The City and the Plaintiff both challenged Mr. Dunn’s ability assert his Fifth Amendment right at the deposition because he was already convicted of several summary traffic offenses arising out of this incident, which would bar future prosecution under 18 Pa. C.S.A. §110(1)(ii).
In its Opinion, the court agreed that under §110, in most cases, a past conviction would bar a future prosecution “based on the same conduct or arising from the same criminal episode . . . .” The court also noted that the Pennsylvania Supreme Court had recently confirmed that this rule applies even when the previous conviction was for traffic summaries rather than misdemeanors or felonies. (Following this Opinion, on July 11, 2022, Governor Tom Wolf signed Senate Bill 588 that amended §110 to exclude summary offenses and summary traffic offenses from this rule.)
However, the court explained that there is an exception to this rule that permits further prosecution if there is additional evidence to support additional offenses that were not known to the prosecutor at the time of trial. In such circumstances, a court must determine if the deponent has “reasonable basis to fear self-incrimination.” To overrule a claim of privilege, “it must be perfectly clear from a careful consideration of the circumstances that the witness is mistaken in the apprehension of self-incrimination.” Here, the court concluded that Mr. Dunn had reasonable fear of self-incrimination and therefore could not be compelled to testify at a deposition in this case.
The court made clear in its Opinion that Mr. Dunn did not need to establish what he might testify to at a deposition, and that the court “can obviously not compel [Mr. Dunn] to explain the factual basis of his fear of self-incrimination, as it would pervert the Fifth Amendment right” against self-incrimination. The court continued that Mr. Dunn “explained why, at least theoretically, his fear of self-incrimination was reasonable in an effort to establish that it is not ‘perfectly clear’ that the Defendant driver was ‘mistaken in his apprehension of self-incrimination . . . .’”
The court noted, however, that if Mr. Dunn secured an immunity agreement from the District Attorney, Mr. Dunn would no longer have a fear of future prosecution based on his deposition testimony. In that situation, Mr. Dunn would be compelled to attend the deposition and not permitted to assert his Fifth Amendment rights against self-incrimination.
