The use of the Fifth Amendment privilege against self-incrimination in domestic relations cases By Matthew A. Kirsh

In the everyday practice of matrimonial law, constitutional considerations are often the furthest thing from a practitioner's mind. Except for perhaps relying on that old law school favorite International Shoe in the course of a jurisdictional dispute, weighty constitutional questions simply do not often present themselves. However, the Fifth Amendment to the United States Constitution as extended to the states by the Fourteenth Amendment and Article I, section 10 of the Illinois Constitution provides a testimonial privilege which can be quite useful or frustrating, depending on which side of the privilege claim you fall. This article will not attempt to analyze the privilege against self-incrimination in all of its intricacies, but will hopefully provide a basic overview of when the invocation of the privilege is appropriate.

The privilege against self-incrimination applies to testimony in civil proceedings as well as criminal proceedings. Gabriel v. Columbia National Bank of Chicago 228 Ill.App.3d 240, 592 N.E.2d 556, 170 Ill.Dec. 120 (1st Dist. 1992) The privilege is not limited to testimony in court but also applies to discovery depositions, 10-Dix Building Corp. V. McDannell 134 Ill.App.3d 664, 480 N.E.2d 1212, 89 Ill.Dec. 469 (1st Dist. 1985) and subpoenas duces tecum. Zisook v. Brody 88 Ill.2d 321, 430 N.E.2d 1037, 58 Ill.Dec. 786 (1981) Additionally, the privilege extends to non-party witnesses in civil proceedings. Orlove v. Novick 78 Ill.App.3d 1141, 398 N.E.2d 170, 34 Ill.Dec. 495 (1st Dist. 1979).

The scope of the privilege is quite broad. When considering the question of whether to allow a party or witness to assert the privilege the court should liberally construe the privilege with an eye towards protecting the rights the Fifth Amendment was intended to secure and every reasonable presumption against waiver of such rights must be indulged. 10-Dix Building Corp. A witness who reasonably apprehends the risk of self-incrimination can invoke the privilege even though no criminal case is pending and the risk of criminal prosecution is remote. Gabriel v. Columbia National Bank The privilege extends not only to answers that would in themselves support a conviction, but also to answers that might furnish a link in a chain of evidence needed to prosecute the witness for a crime. People v. Wiesneske, 234 Ill.App.3d 29, 599 N.E. 2d 1266, 175 Ill.Dec. 252 (1st Dist. 1992).

On a practical level, at a deposition the party who is being denied information by the assertion of the privilege must ask all of the questions and have the privilege asserted to avoid being foreclosed from asking the questions at a later deposition. If called to rule upon a claim of privilege against self-incrimination asserted at a deposition, the trial court is obligated to scrutinize every disputed question and rule upon the reasonableness of the refusal to answer. 10-Dix Building Corp. If called upon to produce privileged documents pursuant to a subpoena, the subpoenaed party may not simply refuse to appear for the deposition or hearing, but must appear and assert the privilege as to each document. Zisook.

The privilege can be waived, although not easily. In order to constitute a waiver, a sworn statement in a pleading must amount to an admission of guilt or furnish clear proof of a crime. 10-Dix. Also, the invocation of the privilege in a response to a pleading is not tantamount to an admission. In Gabriel, the appellate court held that the trial court erred in granting the plaintiff judgement on the pleadings based upon the defendant invoking the privilege and refusing to answer allegations of forgery.

The Fifth Amendment Privilege may be an effective tool in domestic relations cases. Remember adultery (720 ILCS 5/11-7) and fornication (720 ILCS 5/11-8) are still crimes in this state. Claiming the Fifth Amendment privilege may be appropriate. Also, the privilege applies in a proceeding which seeks a finding of criminal contempt. In Re The Marriage Of Walden, 93 Ill.App.3d 699, 417 N.E.2d 715, 49 Ill.Dec. 25 (1st Dist. 1981). However, remember to check the statute of limitations. Many marriages are long term, but most statutes of limitation are not. If the statute has run, there is no reasonable fear of prosecution.