Under What Circumstances is the Shield Against Self-Incrimination Lowered in a Civil Action?

Article


Hemming, Andrew. 2022. "Under What Circumstances is the Shield Against Self-Incrimination Lowered in a Civil Action?" Lincoln Memorial University Law Review. 9 (2), pp. 20-72.
Article Title

Under What Circumstances is the Shield Against Self-Incrimination Lowered in a Civil Action?

Article CategoryArticle
Authors
AuthorHemming, Andrew
Journal TitleLincoln Memorial University Law Review
Journal Citation9 (2), pp. 20-72
Article Number1
Number of Pages53
Year2022
Place of PublicationUnited States
Web Address (URL)https://lmulawreview.scholasticahq.com/article/35724-under-what-circumstances-is-the-shield-against-self-incrimination-lowered-in-a-civil-action
Abstract

The case of Pennsylvania v Cosby has brought into sharp relief the question of what criteria apply in determining whether a defendant in a civil action can definitively rely on a District Attorney’s purported statement that no further criminal action will be taken regarding the complaint in question. It is settled law that a defendant in a civil action faces the possibility of perjury charges for not telling the truth once the shield of the constitutionally enshrined Fifth Amendment right against self-incrimination is lowered by virtue of termination of criminal prosecution on the same facts. This article considers how best a defendant in a civil action can be protected against the vagaries of a change in District Attorney who, within the Statute of Limitations, decides the original assurance by a previous District Attorney that no prosecution would be forthcoming was not binding, and consequently evidence gathered in the civil action could be used in a subsequent criminal trial. The dilemma facing defendants is that they may be offered a deal by the District Attorney, whereby criminal charges will be dropped provided defendants give a full disclosure undertaking in a civil action brought by the complainant who is seeking damages. This reflects the breadth of prosecution deals upon which defense attorneys need to be able to rely, otherwise the criminal justice system would be overwhelmed by a significant increase in the number of trials. Such a prospect raises the question of whether a defendant’s best course of action is to claim the Fifth Amendment right in the civil action until the court rules that the District Attorney’s assurance of no prosecution is absolute and binding on his or her successors.

KeywordsPennsylvania v Cosby; Lowering of 5th amendment shield; civil action; binding assurance
ANZSRC Field of Research 2020480502. Civil procedure
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File reproduced in accordance with the copyright policy of the publisher/author/creator.

Byline AffiliationsSchool of Law and Justice
Institution of OriginUniversity of Southern Queensland
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