Does providing testimony in a civil case open you up to cross in a criminal case?

[NIV]

As plaintiff in the civil case he can't hide behind self-incrimination. But, he would still be able to hide against self-incrimination if the criminal case were to reopen, and the prosecutor sought to use testimony in civil case as evidence?

I thought you first wrote about putting the defendant at risk of cross-examination in a criminal case because of the civil testimony. Now it appears you are writing as to if the sworn testimony in the civil case can be used in the criminal.

You've got to maintain a coherent narrative to have any chance of help.

 

[quincy]

Correct, but not on one thing. The guy was the defendant in the robbery. The guy is trying to file a suit against an entity which he certainly has a good case.

As plaintiff in the civil case he can't hide behind self-incrimination. But, he would still be able to hide against self-incrimination if the criminal case were to reopen, and the prosecutor sought to use testimony in civil case as evidence?

Once someone waives their Fifth Amendment right, they cannot later invoke it in another trial. In other words, if someone testifies in a civil action to certain incriminating facts, that person cannot invoke the Fifth in a subsequent criminal trial (and vice versa) on these same facts.

A person cannot pick and choose where he can be honest and open.

Your client probably would be well-advised to wait for the criminal action to be resolved in his favor before engaging in a civil action that will implicate him in the crime for which he was earlier charged.

 

[pditty8811]

I thought you first wrote about putting the defendant at risk of cross-examination in a criminal case because of the civil testimony. Now it appears you are writing as to if the sworn testimony in the civil case can be used in the criminal.

You've got to maintain a coherent narrative to have any chance of help.

I don't see a difference between the two in this case. Cross-examination is examination by the adverse party.

If the sworn testimony is used in the criminal case, then can't the defendant also be liable for cross-examination in that same criminal case?

 

[Zigner]

I don't see a difference between the two in this case. Cross-examination is examination by the adverse party.

The problem is that you skipped an intermediary step.

Please tell me (us) why this is an issue...

 

[NIV]

Once someone waives their Fifth Amendment right, they cannot later invoke it in another trial. In other words, if someone testifies in a civil action to certain incriminating facts, that person cannot invoke the Fifth in a subsequent criminal trial (and vice versa) on these same facts.

Are you sure? That's why I think this homework. Because of the law still being unresolved in some aspects. I know there have been some fairly recent questions on the reverse of this in regards to Federal Rules of Evidence. Say a person testifies in a civil case. Later, that person wants to use this prior testimony (That was cross-examined by a person who had no consideration of later criminal court action.) in his criminal case without being subject to cross-examination by the prosecutor.

Can he do it?

The plan is to assert their Fifth Amendment right to not testify in the criminal case against them, thus making them "unavailable" under the federal rules. Then using the exceptions in 804 to get the otherwise hearsay in.

The court held...I would go on but still believe this to be homework and don't want to give the key issues. Professors love to ask questions that are not fully answered by the case law. The case(s) tend towards fighting the unavailability issue, not in fighting the ability to later claim the 5th issue when there is previous civil testimony on the same thing.

 

[quincy]

Are you sure? That's why I think this homework. Because of the law still being unresolved in some aspects. I know there have been some fairly recent questions on the reverse of this in regards to Federal Rules of Evidence. Say a person testifies in a civil case. Later, that person wants to use this prior testimony (That was cross-examined by a person who had no consideration of later criminal court action.) in his criminal case without being subject to cross-examination by the prosecutor.

Can he do it?

The plan is to assert their Fifth Amendment right to not testify in the criminal case against them, thus making them "unavailable" under the federal rules. Then using the exceptions in 804 to get the otherwise hearsay in.

The court held...I would go on but still believe this to be homework and don't want to give the key issues. Professors love to ask questions that are not fully answered by the case law. The case(s) tend towards fighting the unavailability issue, not in fighting the ability to later claim the 5th issue when there is previous civil testimony on the same thing.

From Mitchell v. United States, 526 US 314 (1999), the Court said: "A witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details ... The privilege is waived for the matters to which the witness testifies."

The Court went on to say: "Where there can be no further incrimination, there can be no basis for the assertion of the privilege."

A prosecutor can use what is learned in the civil trial to help support a criminal case.

I am of the belief that, if this is not in fact homework, the defendant/possible plaintiff should seek out assistance from a criminal defense attorney in his area and not rely on a legal advocate to search the Internet for information.

 

[pditty8811]

From Mitchell v. United States, 526 US 314 (1999), the Court said: "A witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details ... The privilege is waived for the matters to which the witness testifies."

The Court went on to say: "Where there can be no further incrimination, there can be no basis for the assertion of the privilege."

A prosecutor can use what is learned in the civil trial to help support a criminal case.

I am of the belief that, if this is not in fact homework, the defendant/possible plaintiff should seek out assistance from a criminal defense attorney in his area and not rely on a legal advocate to search the Internet for information.

But the testimony offered in the civil action must be of the same matter, or subject of the criminal case. If the testimony offered in the civil case by my client is not in relation to my client committing a crime, or would be on the words of the testimony alone to be of value to a prosecutor, then my client would be in the clear to proceed with testimony in a civil action. My client wants to testify on a fact that developed through the processes of that criminal case, not on matters that would interest a prosecutor.

Did I understand that right? If my client skirts around any potential sensitive issues that a prosecutor may want to hear, my client would be free to proceed with the action?

 

[quincy]

But the testimony offered in the civil action must be of the same matter, or subject of the criminal case. If the testimony offered in the civil case by my client is not in relation to my client committing a crime, or would be on the words of the testimony alone to be of value to a prosecutor, then my client would be in the clear to proceed with testimony in a civil action. My client wants to testify on a fact that developed through the processes of that criminal case, not on matters that would interest a prosecutor.

Did I understand that right? If my client skirts around any potential sensitive issues that a prosecutor may want to hear, my client would be free to proceed with the action?

To my knowledge, your client can speak to any matter in the civil action that does not incriminate him in the criminal action without fear that what he says in one proceeding will be used against him in the other proceeding.

The prevailing view has always been that former testimony is admissible in another proceeding as an exception to the hearsay rule if certain conditions are met. But if the one who gave the previous testimony is available to testify in the subsequent proceeding, the court can reject the previous testimony as evidence and the person who gave that testimony will be called in to testify in the proceeding instead.

The hearsay exception that allows for previous testimony to be admissible in another proceeding depends in part on the availability of the one who previously testified (e.g., if now dead, the previous testimony can be admissible) the oaths administered in the previous proceeding (e.g., administered how and by whom), the opportunity for cross examination in the previous proceeding, and the issues and parties in common between the previous proceeding and the subsequent proceeding.

State Rules of Evidence may differ from the Uniform Rules of Evidence.

And, as NIV mentioned, the admissibility and the waiving of Fifth Amendment rights is a subject currently under review.