MICHAEL D. COHEN, PERSONAL ATTORNEY FOR THE PRESIDENT OF THE UNITED STATES, ANNOUNCES: “I DECLINE TO ANSWER ON THE GROUND THAT MY ANSWER MAY TEND TO INCRIMINATE ME”

WHEN SHOULD THE COURT HALT PROCEEDINGS IN A CIVIL CASE IN ORDER TO PRESERVE CONSTITUTIONAL RIGHTS AND THE INTEGRITY OF A CRIMINAL CASE AND THE JUDICIAL SYSTEM?

In a criminal case, the fact finder is not permitted to draw an adverse inference from a defendant’s decision not to testify.

But

In a civil case, the fact finder usually is permitted to draw an adverse inference against a person who invokes his Fifth Amendment right against self-incrimination. The adverse inference is that the answer would have been harmful to that person’s interest.

• Question: “You ran the red light at the intersection of 9th and 9th at approximately 2:00 p.m. on April 28, 2018, correct?”

CONTEXT MATTERS

After I had completed this post, the Washington Post reported that the judge in the Stormy Daniels’ case had stayed the civil proceeding for 90 days due to the likelihood of an indictment against Mr. Cohen. https://www.washingtonpost.com/politics/judge-puts-stormy-daniels-case-on-hold-for-90-days-citing-likelihood-michael-cohen-will-be-indicted/2018/04/27/34d87316-4a67-11e8-ad53-d5751c8f243f

IF THE COURT DECLINES TO STAY THE CIVIL CASE, THE COURT STILL MAY IMPOSE LIMITATIONS ON DISCOVERY IN ORDER TO PRESERVE CONSTITUTIONAL PROTECTIONS

If the court is unwilling to stay the civil case, the court may fashion a stay that will allow the civil case to proceed but ensure constitutional rights are protected. A complete stay of a civil case is one option available to a court when the defendant is faced with a parallel criminal proceeding. Alternate tools include the imposition of protective orders, sealed interrogatories, a stay for a finite period of time, or a stay limited to a specific subject matter. With a limited stay, the parties could still proceed with discovery by gathering documents and conducting depositions of witnesses who are not targets of the criminal proceedings.

--

--

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store