“I Plead The 5th!” When Civil Defendants Face Related Criminal Charges

Defendants in civil cases often also face related criminal charges. It thus is critical to balance the interplay of the civil and criminal matters. The plaintiff likely will propound discovery asking for admissions or information that may be incriminating in the criminal matter. Such risks also will be present during depositions. Therefore, care must be taken to protect the defendant’s rights at all phases of litigation.

A defendant has a right to avoid giving testimony to incriminate him. Ga. Const. 1983, Art. I, § I, ¶; XVI. The privilege against self-incrimination extends not only to those answers that would in themselves support a conviction, but also to answers that may establish a link in the chain of evidence needed to prosecute the criminal matter. Chumley v. Georgia, 282 Ga. App. 117, 637 S.E.2d 828 (2006).

However, when a person invokes his privilege against self-incrimination, an inference may be drawn by the fact finder that the witness’ testimony would be unfavorable to him. Simpson v. Simpson, 233 Ga. 17, 209 S.E.2d 611 (Ga. 1974). This can be devastating to the defense in the civil matter. One way to make the best of this difficult situation is to seek a stay in the civil matter pending the outcome of the criminal matter.

OCGA § 9-11-26(c) authorizes the trial court to issue a protective order where justice so requires: “Upon motion by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . [t]hat the discovery not be had [or] . . .[t]hat certain matters not be inquired into or that the scope of the discovery be limited to certain matters.” The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court. Bridges v. 20th Century Travel, 149 Ga.App. 837, 839, 256 S.E.2d 102 (1979).

The law generally disfavors complete stays in these situations. See Christopher v. State of Ga., 185 Ga.App. 532, 364 S.E.2d 905 (1988), (“a merely conclusory allegation that any and all discovery would prejudice the criminal investigation, without more, would frustrate legitimate discovery, as would either an unreasonable or indefinite stay”); and Bridges, 149 Ga.App. at 839, 256 S.E.2d at 102 (holding that the trial court will not be able to effectively decide whether the privilege is validly raised unless there is a record of the questions propounded, including those to which the privilege has been asserted and the court considers the implications of each question to which the privilege is raised and the setting in which it is asked and whether the party raising the privilege should provide sufficient information on which the court may find that a real danger of incrimination exists.)

Nevertheless, a complete stay is not improper under the law and lies within the sound discretion of the trial judge. OCGA § 9-11-26(c). In the alternative, the defendant can ask the court for protection from responding to certain discovery.

When presented with the possibility of facing both civil and criminal actions, defendants must be careful to not impair one defense while protecting another. Understanding and balancing these issues is vital to the best defense in both matters.

For more information, please contact Barbara Mulholland at (404) 633-9230.