Self-Incrimination

In Mississippi, adultery is still a crime.  In light of Lawrence v. Texas decided by the United States Supreme Court, the chances of it being constitutional are slim.  This may be an issue to challenge on a constitutional basis where a client has enough money and really wants the information where a party asserts a Fifth Amendment Privilege which is still common in Mississippi divorce practice.  Are there any remedies though if they refuse to answer?  The answer, like most things in the law is a definite maybe.

A party who files a divorce action waives certain rights and puts their conduct and behavior in question.  Just as in Rule 503 of the Mississippi Rules of Evidence, if a party puts their physical health in issue, the medical privilege is waived.  Identically here, the Defendant/Counter-Plaintiff, Peter Amminger, has waived his privilege.   Additionally under the legal standards for child custody (Albright v. Albright), alimony factors (Armstrong v. Armstrong), and property division (Ferguson v. Ferguson), martial fault and/or moral fitness are factors that are required to be considered by the Court.   The clean hands doctrine has long been recognized by our Courts.  “…he who comes into an equity court must come with clean hands.  One cannot use the process of that court when his conduct with respect to the transaction in question as been characterized by willful inequity, illegality, and fraud.  Griffith, Miss. Chancery Practice, (2d. ed. 1950), Section 32, 42).” While there is not Mississippi case on point, in the Missouri case of Franklin v. Franklin, 283 SW2d 483 (Mo. 1955), the Missouri Court held that a spouse certainly has a right not to answer questions regarding adultery, however by refusing to answer the same, it is justifiable to strike their pleadings.  Additionally, in a Washington Court case, Annest v. Annest, 298 P.2d 483 (Wash. 1956), the Court found that where a party refuses to answer questions regarding their adulterous relationship by asserting their 5^th amendment privilege, it is proper to strike their entire testimony.  

This seems to be the view adopted by the majority of jurisdictions.   If a spouse invokes a fifth amendment privilege regarding questions about adultery, a court is free to impose a variety of sanctions against that spouse, including the denial of affirmative relief. E.g., Anonymous v. Anonymous, 353 So. 2d 510 (Ala. 1977) (as result of wife's claim against self-incrimination, court was free to make any and all inferences against her regarding substance of questions propounded); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (after wife claimed privilege, court was free to dismiss her claim); Harwell v. Harwell, 355 S.W.2d 137 (Mo. Ct. App. 1961) (court free to make any inferences against party claiming privilege); Levin v. Bornstein, 13 Misc. 2d 161, 174 N.Y.S.2d 574 (Sup. Ct. 1958), aff'd, 7 A.D.2d 995, 183 N.Y.S.2d 868, aff'd, 6 N.Y.2d 892, 190 N.Y.S.2d 702 (1959) (court free to impose sanctions on party who invokes fifth amendment privilege); Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987) (moving party in civil action who exercises privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion); Donaldson v. Donaldson, 27 Va. Cir. 327 (Fairfax County 1992) (court free to impose noncriminal sanctions on the husband who invoked his fifth amendment privilege against self-incrimination); Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970) (it was error for court not to take an adverse inference against wife who claimed privilege). See generally Annotation, Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question, 4 A.L.R.3d 545 (1965); Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation, 39 Brooklyn L. Rev. 121 (1972); Madsen, Penalizing the Civil Litigant who Invokes the Privilege Against Self-Incrimination, 24 U. Fla. L. Rev. 541 (1972).
              

The rationale for this rule was explained in Dodson v. Dodson, 855 S.W.2d 383 (Mo. Ct. App. 1993). In that case, the court stated: “Although a party has the right to take the Fifth Amendment against self-incrimination in a civil case, the right is not without its price. Where a party takes the Fifth Amendment in a dissolution action and thereby conceals pertinent information, the party is not entitled to affirmative relief when timely objection is made. . . . Furthermore, whether asserted by the petitioner or the respondent, invocation of the Fifth Amendment privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence. In this regard, the trial court is vested with discretion in fashioning an appropriate remedy to prevent unfairness and disadvantage from the concealment of pertinent information.” Id. at 385; accord Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225, 227 (1974) (in civil proceedings, the courts have, in the interest of truth and justice, displayed understandable readiness to impose noncriminal sanctions for refusal to submit to pretrial discovery on the basis of the privilege; thus, where the plaintiff in a civil action refuses to testify in pretrial discovery on the grounds of self-incrimination, it is generally held that he may be subjected to some lesser noncriminal sanctions); Hackes v. Hackes, 446 A.2d 396, 399 (D.C. 1982) (when a civil litigant invokes the fifth amendment to prevent discovery, he is subject to noncriminal sanctions; the imposition of sanctions should strike the proper balance between the public and private interests in broad discovery, while preserving the purpose of the privilege; striking a pleading should be the last resort).

Additionally, the Court can draw an adverse inference from the failure of the party to answer questions.  Morgan v. United States Fidelity & Guaranty Co., 222 So. 2d 820 (Miss. 1969).  There are arguments dealing with a parties ability to conduct meaningful discovery.  This appears to be an issue ripe for review which has not been really addressed in Mississippi.