Opinion
FSTCV186034685S
07-16-2019
Paul WILSON, as Administrator of the Estate of Ana Cristina Vomoca et al. v. TRANSERVICE LEASE CORP. et al.
UNPUBLISHED OPINION
OPINION
GENUARIO, J.
This case arises out of a tragic automobile accident that occurred on or about November 19, 2016. According to the allegations of the complaint the defendant Jeffrey Bodner was operating a tractor trailer truck on the Exit 3 ramp of I-95, in a westerly direction, towards the Arch Street intersection in Greenwich, Connecticut. The intersection is controlled by a traffic control signal. The plaintiff’s decedent was operating a motor vehicle southbound on Arch Street. The tractor trailer truck driven by the defendant Bodner collided in the intersection with the motor vehicle driven by the decedent which, according to the complaint, resulted in the decedent’s death. The defendant Bodner has been arrested and charged with certain crimes arising out of the subject automobile accident. Based on the representations of counsel the defendant Bodner made some initial statements to the police and perhaps to his employer but subsequently and certainly since his arrest has refused to make any statements, asserting his Fifth Amendment privilege against self-incrimination. His deposition was noticed and taken and he responded to each question asked by asserting his rights against self incrimination pursuant to the Fifth Amendment.
The parties do not disagree with regard to the basic principles that govern this situation. Both parties agree that Bodner is entitled to refuse to answer questions about the accident. Moreover, both parties agree that in this civil case, the civil jury may draw an adverse inference based on Bodner’s refusal to testify. The parties’ disagree on the appropriate procedure to be utilized with regard Mr. Bodner’s assertion of his Fifth Amendment privilege in this civil case.
The plaintiff argues that he ought to be able to call Bodner to the stand in the presence of the jury, ask Bodner’s relevant and material questions and require Bodner, if he chooses, to assert his Fifth Amendment privilege against self incrimination in response to each question before the jury. The defendants argue that such a process would be prejudicial and that the appropriate procedure, if the plaintiff calls Bodner, is for the court to instruct the jury that Mr. Bodner will not be testifying because he has asserted his rights under the Fifth Amendment and for the court to inform the jury that they may, if they choose, draw an adverse inference from his decision not to testify. The defendants have filed this motion in limine to address this narrow but important issue.
In 1976 the United States Supreme Court decided the case of Baxter v. Palmigiana, 425 U.S. 308 (1976) which recognized a distinction between the right of a jury to draw adverse inferences as a result of the invocation of a Fifth Amendment right in civil and criminal cases. Baxter arose out of a disciplinary proceeding against a prison inmate, who was informed that state criminal charges might be brought against him arising out of his conduct which was the subject of the disciplinary proceeding. The inmate was advised that he could remain silent before the disciplinary board but that his silence would be used against him. The inmate chose to remain silent and the prison disciplinary board drew an adverse inference. The United States Supreme Court held that the drawing of the adverse inference from the inmate silence was proper when other probative evidence had also been presented, and therefore no Fifth Amendment violation had taken place. Id. at 317-18. Since that case lower Federal courts and State courts have readily implemented the Baxter principle allowing an adverse inference to be drawn in civil actions when independent evidence exists concerning a question which a witness has refused to answer. See e.g., Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (2000).
Remarkably, there is little State court jurisprudence on the specific procedural issue raised by the parties. There is more Federal court jurisprudence which arises in a variety of different contexts.
The two different approaches developed in State court jurisprudence are characterized by a comparison of the Connecticut Superior Court case of Ruggiero v. Christoforo, Superior Court for the judicial district of New Haven at New Haven, January 20, 2003, Docket Number CV98-9412137 (Robinson, J.), 2003 WL 828916 and Asplin v. Mueller, 687 P.2d 329 (Colorado Ct. of App. 1984). Ruggiero was a medical malpractice case. The court expressed concern about the possibility that a witness’s invocation of his Fifth Amendment privilege in the presence of the jury would disproportionately impact its deliberations. When the defendant was called to the witness stand the court outside the presence of the jury permitted the plaintiff to ask the witness a myriad of questions to each of which the defendant asserted his Fifth Amendment privilege. Upon completing the questions the jury was called back into the courtroom and informed that the defendant had exercised his Fifth Amendment rights. The court further charged that the jury could draw an adverse inference from the defendant’s refusal to testify. The Ruggiero case does not stand for the proposition that in any and all circumstances a defendant in a civil case cannot be questioned before a jury. Rather it stands for the proposition that the court has discretion to prohibit such questioning before the jury, if it determines that under the circumstances before it the prejudicial effect of such questioning outweighs the probative value of the questioning. Ultimately the decision is one within the sound discretion of the trial court after it weighs the probative nature of the invocation of the Fifth Amendment privilege against the possible disproportionate prejudice that might result therefrom. This decision is consistent with many of the federal cases that indicate that the decision as to how to proceed must be decided on a case by case basis.
In Asplin the defendant filed a motion in limine seeking orders prohibiting the plaintiffs from calling him to the witness stand and preventing them from requiring him to assert his Fifth Amendment privileges on the stand. At trial the defendant was called by the plaintiffs as an adverse witness for cross examination. In response to questions regarding a shooting incident out of which the case arose the defendant declined to answer on the basis of his Fifth Amendment privilege. At the end of the trial the court instructed the jury as follows "the jury is not to decide liability or nonliability of the defendant Mueller based solely on his assertion of his Fifth Amendment rights" the jury may draw any reasonable inference from the defendant’s refusal to answer any questions on the claim of privilege against self incrimination. The Asplin court Wrote:
Since Baxter, it has been clear that a party in a civil proceeding may be called for testimony even if he will be claiming the privilege. Brink’s, Inc. v. City of New York, 717 F.2d 700 (2nd Cir. 1983). If he declines to answer certain questions on Fifth Amendment grounds, it is not error to require him to invoke the privilege in the presence of the jury; and, in that event instructions such as those given here are appropriate. Brink’s, supra . Failure of a party who is present at trial to answer questions based on the privilege against self incrimination raises a strong inference that the answers would have been unfavorable and damaging to him, and comment to that effect is proper.Asplin at 1332 (some citations omitted).
Federal courts have also dealt with this procedural issue. The federal cases that have addressed this issue have trended toward allowing direct questions and the invocation of the Fifth Amendment privilege to be presented to the jury. The leading case in the Second Circuit is Brink’s cited by the Asplin court. Brink’s centered around a claim by the City of New York that certain employees of Brink’s, Inc. had stolen parking meter revenues. The city wished to ask these employees whether, acting alone or in concert with others, they ever stole money from parking meters while working for Brink’s or whether they knew of any other employees who did. When asked those questions in pretrial depositions each witness refused to answer asserting the Fifth Amendment privilege. Brink’s sought to preclude the city from questioning these employees before the jury. The trial court ruled that the city could question the past and present employees about their knowledge of and participation in the thefts overruling the objection of Brink’s asserting that the questioning was more prejudicial than probative. The analysis employed by the trial court was to the effect that Baxter allowed the jury to draw from the silence of the person invoking the Fifth Amendment privilege whatever reasonable inference the circumstances warrant and further noting that "silence is often evidence of the most persuasive character." Brink’s, Inc., 539 F.Supp. 1139 (1982) at 1141, quoting United States ex. Rel. Bilokumsky v. Tod, 263 U.S. 149, 153-144 (1923). The Brink’s trial court determined that the assertion of the Fifth Amendment privilege was probative and then proceeded under Federal Rule of Evidence 403 to determine that the evidence was more probative than prejudicial. The trial court wrote "striking the balance, I find on the one hand, no danger of unfair prejudice. For a witness to assert his Fifth Amendment privilege in the course of a civil trial is hardly the equivalent of passing a bloody shirt among the jury or introducing a dying accusation of poisoning. On the other hand such evidence of theft has a significant probative value and is essential to the city’s claims. Outright admissions of widespread theft would give substantial support to a basic element of the city’s claim- that meter collections were stolen; it is also probative on the issue of damages." Id. (Internal citations and quotations omitted.) The Second Circuit Court of Appeals affirmed the decision of the trial court to employ this balancing test. Brink’s v. City of New York, 717 F.2d 700 at 709. The Second Circuit noted that the probative value of the evidence to the city’s case was significant and in addressing the issue of the prejudicial nature of the questioning the Second Circuit wrote "to be sure, that assertion is prejudicial in the sense that it gives support to the city’s position against Brink’s, just as it is prejudicial against the individual third party defendants on Brink’s claim against them. As pointed out by [the trial court judge], however, the evidence is not prejudicial in the sense of being inflammatory, even though it is prejudicial in the sense of giving support to a party’s position, i.e., it is damning." Id.
This approach has been followed by the federal courts within the District of Connecticut. In Penfield v. Venuti, 589 F.Supp. 250 (1984), the court analyzed the probative value of evidence of the defendant’s assertion of his Fifth Amendment privilege during the discovery process as against the prejudicial value and determined that the probative value substantially outweighed the prejudicial value. In the Penfield case, which also involved the motor vehicle accident, the court wrote of the defendant, "his actions on the night of June 6, 1979 are obviously of consequence to the plaintiff’s claim and his involvement in the collision which injured Gary Penfield is certainly made more probable by a permissible inference flowing from his assertion of the privilege in response to questions regarding his activities that evening." Penfield at 256. The court held that plaintiff’s counsel would be permitted to read the jury the questions which the defendant refused to answer at his deposition and that the court would instruct the jury that it may, but were not required to, draw an adverse inference from the defendant’s refusal to answer, if such an inference is warranted by the facts surrounding the case. Ultimately the Penfield court determined that invocation of the privilege was not unfairly prejudicial if it was probative of an issue in litigation. See also S.E.C. v. Dibella, United States District Court, District of Connecticut, Docket number CV 1342 (May 8, 2007), 2007 WL 1395105.
The federal courts in their analysis rely on Federal Rules of Evidence 403 which is similar to the Connecticut Code of Evidence Section 4-3. Section 4-3 of the Connecticut Code of Evidence states
Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The analysis engaged in by the Brink’s courts and the Penfield court has also been utilized in other federal circuits. See e.g., Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509 (1984); Glanzer, supra, 232 F.3d 1258 (9th Cir. 2010).
The import of these cases is not that under all circumstances a witness who clearly indicates he or she will be invoking the witness’ Fifth Amendment rights should be required to do so to particular questions raised before a jury, but rather that trial court must, based on the circumstances before it, balance the probative nature of the evidence sought to be offered by way of inferences that a trier of fact is entitled to draw as against the prejudicial nature of the questioning. As the Rosebud Sioux court wrote "we are not declaring a bright-line rule for use in all civil cases. We simply are holding the given circumstances presented in this case" the witnesses should have been called notwithstanding his announced intent to invoke his Fifth Amendment rights.
At least one federal court case within the bankruptcy context however has ruled that "the privilege must be invoked on a question by question basis" and an adverse inference can only be drawn as to questions that are actually asked. In re Bernard L. Madoff Investment Securities, LLC, 560 B.R. 208, 226-27 (U.S.B.C., S.D.N.Y. 2016) (emphasis added).
This court has determined that its obligations under the law require it to balance the prejudicial nature versus the probative nature of the defendant Bodner’s invocation of his Fifth Amendment rights in the presence of the jury.
One of the critical factors, if not the most critical factor in this case is whether or not the traffic control light signal at the intersection of the I-95 exit ramp and Arch Street in Greenwich was green for the defendant Bodner or was green for the plaintiff’s decedent. Other quite relevant and material factors would include the speed that the defendant was driving as he exited I-95 and what he saw or didn’t see. Based upon representations of counsel there will be at least one third party witness who may testify with regard to the traffic control signal and there are proposed experts who may also testify concerning their accident reconstruction analysis. It is difficult for the court to ignore the fact that the two most critical witnesses to the operation of the traffic control signal are the defendant Bodner and the plaintiff’s decedent. The plaintiff’s decedent is obviously not available for testimony. There is no other witness who would likely have had as direct a view of the traffic control signal as the defendant. Moreover, he is also a witness that quite likely has knowledge about his speed and what was within his scope of vision. The most relevant and material evidence is within the mind of the defendant and while there is no question that he is entitled to assert his Fifth Amendment privilege, he is not immune from the consequences of that assertion. The jury is entitled to consider his response to questions that probe factual matters that are likely to be within the scope of his knowledge even if that response is his refusal to answer those same questions. Accordingly, the court rules that the plaintiff may call the defendant Bodner to the stand and ask a limited number of fact based questions before the jury and the defendant of course may continue to assert his Fifth Amendment privilege.
The court is aware however that while on balance such fact based questioning has more probative value than prejudicial nature, there is a significant danger of undue prejudice by engaging in this process. Towards that end the court will require plaintiff’s counsel to provide the court and defense counsel with the questions it intends to ask the defendant in advance in writing. The court and the defense may review those questions and the court’s will render final approval to specific questions before the defendant Bodner takes the stand. In this way the court will be able to discharge its obligation to balance the probative value of the questions against the prejudicial nature of any questions. Nor does it unfairly limit the plaintiff’s examination by alerting the defendant to the questions, since the defendant has already announced in unequivocal manner that he intends to assert his Fifth Amendment privilege as to each and every question.