Sixth Circuit Holds Deposition Testimony Does Not Waive Fifth Amendment Right Against Self-Incrimination
Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit held that several government officials had not waived their Fifth Amendment rights against self-incrimination by answering questions in pre-trial depositions. Judge Griffin wrote for the court, joined in part by Judges Thapar and Moore (though each on different parts). The three judges each wrote their own opinions, and broke down this way:
GRIFFIN, J., announced the judgment of the court and delivered the opinion of the court with respect to the Introduction and Parts II, III.G., and IV, and delivered an opinion with respect to Parts I, III, III.A, B, C, D, E, and F. THAPAR, J. (pp. 42–56), delivered a separate opinion concurring in part and in the judgment. MOORE, J. (pp. 57–76), delivered a separate opinion concurring in part and dissenting in part.
Here is how Judge Griffin’s opinion for the Court begins:
One of the fundamental liberties enshrined in the Fifth Amendment to our Constitution is the right not to be compelled to bear witness against oneself. The inquisitorial abuses of the Star Chambers eventually led to the inclusion of this right in our Bill of Rights. This bedrock privilege originates from the maxim “nemo tenetur seipsum accusare,” that “no man is bound to accuse himself.” In the present case, the district court ordered the appellant state officials to testify at trial—to be witnesses against themselves—despite their invocation of their right against self-incrimination. According to the district court, appellants “waived” their right not to be witnesses against themselves at trial by voluntarily submitting to a discovery deposition.
We disagree. We conclude that the district court erroneously held that testifying at a pretrial deposition waives invocation of the privilege at a later trial in the same civil case. In doing so, we hold that a Fifth Amendment waiver does not extend to trial under these circumstances. Thus, we vacate and remand.
And from the close of his opinion:
In our adversarial justice system, a party has the responsibility to “produce the evidence against [another] by its own independent labors.” Miranda v. Arizona, 384 U.S. 436, 460 (1966). The Fifth Amendment is thus grounded on this “overriding thought:” that a witness “is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.'” Id. (quoti
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