Evidence - Non-Party Witnesses' Invocation of the Privilege against Self-Incrimination in a Civil Case - Rosebud Sioux Tribe v. A (and) P Steel, Inc.

Abstract

INTRODUCTION|Under federal law, courts permit juries to draw adverse inferences against civil litigants asserting their fifth amendment privilege not to testify. However, courts generally do not allow juries to treat a non-party witness' refusal to testify, based upon self-incrimination grounds, as a vicarious admission of a party. Thus, when a nonparty witness in a civil case invokes the fifth amendment privilege, the witness' refusal to testify cannot generally be made the basis of an evidentiary inference against one of the parties to the case. In Rosebud Sioux Tribe v. A & P Steel Inc., the Eighth Circuit recently held that, in the context of a civil case, a non-party witness invoking his fifth amendment privilege could be called to the stand and the jury could be allowed to draw an inference adverse to the civil litigant. Although narrowing its holding to the facts of the case, the court accepted the general proposition that, in civil cases, adverse inferences can be drawn from a non-party witness' invocation at his fifth amendment privilege. Apart from the adverse inference issue, the court's decision also touched upon Federal Rule of Evidence 804(a)(1) which, as the basis of the unavailability hearsay exception, sets forth situations where the testimony of a potential witness is unavailable. One such situation is when a potential witness invokes his privilege against self-in...