Tuesday, June 25, 2013

Fifth Amendment Privilege in the Context of Parallel Civil and Criminal Proceedings (Nevada)

Determining how to proceed in response to a civil litigant's request for accommodation of his or her Fifth Amendment privilege against self-incrimination is a matter within the discretion of the district court.  Francis v. Wynn Las Vegas, 127 Nev. Adv. Op. 60 (October 6, 2011).  Therefore, a lift of a of a stay civil proceedings made in connection with such a request is similarly within this court’s discretion.  Federal Sav. and Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989).  "The Fifth Amendment privilege against self-incrimination may be invoked in both criminal and civil proceedings." Francis, 127 Nev. Adv. Op. 60 (October 6, 2011).
When parallel civil and criminal actions arising from the same transactions or issues have been instituted, a court is faced with a dilemma. On the one hand, a parallel civil proceeding can vitiate the protections afforded the accused in the criminal proceeding if the prosecutor can use information obtained from him through civil discovery or testimony elicited in the civil litigation. This also may cause him to confront the prospect of divulging information which may incriminate him. On the other hand, the pendency of a parallel criminal proceeding can impede the search for truth in the civil proceeding if the accused resists disclosure and asserts his privilege against self-incrimination and thereby conceals important evidence.  Milton Pollack, Sr. J., U.S. Dist. Ct., S.D.N.Y., Parallel Civil and Criminal Proceedings, 129 F.R.D. 201, 202 (Oct. 17-19, 1989).