"Unless the Use Would Be Solely for Impeachment"
fielding...@yahoo.com
condition about which I have questions. 1) Not that I anticipate
anything asked of me--written or oral--by a defense attorney would
require me to plead the fifth amendment, but is that what this phrase
refers to? Okay, here's a stupid question: Do people plead the fifth
amendment in civil trials? 2) What does "solely" mean in this context?
Does it mean (hypothetical example) that if I were a plaintiff in a
tort involving my car, and I texted a message to a friend saying that
the insurance company determined the defendant was 98.7248%
responsible, and I joked in the message to my friend, at the accident
site with the insurance investigator looking on, "Of course, if I
hadn't been going 36 miles per hour in a 35 mile per hour zone, the
b*st&rd might be 98.8% responsible," that that text would--or
*wouldn't*--need to be turned over to the defense? 3) How about if I
sent the same message to a medical practitioner from whom I was
seeking treatment for whiplash from the accident or from a
psychologist to whom I turned because I couldn't understand how I was
1.2751% responsible?
I don't see how any evidence in a civil trial can't be used by the
defense to impeach someone "a little bit." I guess I just don't
understand how you're expected to turn over everything discoverable,
but then--NOT turn over everything.
Thank you.
Deadrat
4c8b1a...@k2g2000yql.googlegroups.com:
> In Rule 26 of the FRCP, this phrase is repeated often.
Twice?
> It suggests a
> condition about which I have questions.
> 1) Not that I anticipate
> anything asked of me--written or oral--by a defense attorney would
> require me to plead the fifth amendment, but is that what this phrase
> refers to?
No.
> Okay, here's a stupid question: Do people plead the fifth
> amendment in civil trials?
Generally, civil trials aren't about criminal matters, but no one loses his
Fifth Amendment rights because he's been sued.
2) What does "solely" mean in this context?
It means "only."
> Does it mean (hypothetical example) that if I were a plaintiff in a
> tort involving my car, and I texted a message to a friend saying that
> the insurance company determined the defendant was 98.7248%
> responsible, and I joked in the message to my friend, at the accident
> site with the insurance investigator looking on, "Of course, if I
> hadn't been going 36 miles per hour in a 35 mile per hour zone, the
> b*st&rd might be 98.8% responsible," that that text would--or
> *wouldn't*--need to be turned over to the defense?
The defense would claim that it's not a joke (or that in jocularis veritas)
and that it's an admission against interest.
3) How about if I
> sent the same message to a medical practitioner from whom I was
> seeking treatment for whiplash from the accident or from a
> psychologist to whom I turned because I couldn't understand how I was
> 1.2751% responsible?
I suppose you could claim privilege, but you'll still have to disclose that
there was a relevant statement.
>
> I don't see how any evidence in a civil trial can't be used by the
> defense to impeach someone "a little bit." I guess I just don't
> understand how you're expected to turn over everything discoverable,
> but then--NOT turn over everything.
>
> Thank you.
Both sides may introduce evidence to support the truth of their respective
claims and evidence to cast doubt on the evidence of the other side. For
the most part, each side must disclose to the other evidence in the first
category but not evidence in the second. If the only purpose of some
evidence is to cast doubt on the other side's case, it does not have to be
disclosed beforehand.
mm
>I joked in the message to my friend, at the accident
>> site with the insurance investigator looking on, "Of course, if I
>> hadn't been going 36 miles per hour in a 35 mile per hour zone, the
>> b*st&rd might be 98.8% responsible," that that text would--or
>> *wouldn't*--need to be turned over to the defense?
Is there any requirement in a civil case that the plaintiff has to
turn over evidence that weakens his case??7
>The defense would claim that it's not a joke (or that in jocularis veritas)
>and that it's an admission against interest.
Yes, if they knew about it. Why must one side tell the other side
about it?
.....
>Both sides may introduce evidence to support the truth of their respective
>claims and evidence to cast doubt on the evidence of the other side. For
>the most part, each side must disclose to the other evidence in the first
>category but not evidence in the second. If the only purpose of some
>evidence is to cast doubt on the other side's case, it does not have to be
>disclosed beforehand.
Looking at it this way, aren't there four kinds of evidence? A)
Evidence to support the truth of a side's claims. B) Evidence that
goes against the truth of them. C) Evidence that that supoports
the claims of the other side, and D) evidence that casts doubt on it.
You've dealt with two kinds, A and D, and the OP is asking about
category B.
Robert Bonomi
<fielding...@yahoo.com> wrote:
>In Rule 26 of the FRCP, this phrase is repeated often. It suggests a
>condition about which I have questions. 1) Not that I anticipate
>anything asked of me--written or oral--by a defense attorney would
>require me to plead the fifth amendment, but is that what this phrase
>refers to?
Nope.
> Okay, here's a stupid question: Do people plead the fifth
>amendment in civil trials?
> 2) What does "solely" mean in this context?
In this context, solely, means "only and exclusively".
To wit, the you can use the material in question *only*and*exclusively*
for the purpose of impeaching other testimony by that party. You cannot
introduce it independently, you cannot use it as the basis for drawing
inferences/conclusions about the party's behavior, intentions, etc. (well,
beyond showing that the testimony being impeached is 'not believable', that
is. :).
Mike Jacobs
> On Sun, 19 Apr 2009 16:41:32 GMT, Deadrat <a...@b.com> wrote:
> >I joked in the message to my friend, at the accident
> >> site with the insurance investigator looking on, "Of course, if I
> >> hadn't been going 36 miles per hour in a 35 mile per hour zone, the
> >> b*st&rd might be 98.8% responsible," that that text would--or
> >> *wouldn't*--need to be turned over to the defense?
>
> Is there any requirement in a civil case that the plaintiff has to
> turn over evidence that weakens his case??
Yes, _IF_ he is asked about it in discovery, and IF it is relevant to
any issue material to any claim OR defense, and IF it is actually
known to the responding party (he has no duty to dig for _new_
information), and IF it is not privileged (of which there are many
that could be claimed, depending on the circumstances).
That's a lot of "ifs," but this issue is not parallel to the 5th Am.
self-incrimination type of thing - unless, of course, the evidence in
question WOULD be self-incriminating in the criminal-law sense. In
that case, the civil party may assert the 5th Am. privilege in
refusing to answer. However, in a civil case the opposing party CAN
draw an adverse inference from the 5th Am. refusal to testify.
> >The defense would claim that it's not a joke (or that in jocularis veritas)
> >and that it's an admission against interest.
>
> Yes, if they knew about it. � � Why must one side tell the other side
> about it?
Because it is not safe to assume the other side doesn't already know
about it thru some other source (and, because the rules require it).
If you told it to a witness at the scene, they may have already spoken
to that witness and taken a statement. Even if the witness is a
friend or relative, they are not as likely to willingly lie or cover
up for you in a mere civil case, especially one covered by
insurance. And if the admission/joke were made by email or in a
paper writing, a trail of copies and/or references to its existence
(such as diaries, fax transmission records, cert mail receipts, etc)
exists that you can never be sure has been _completely_ erased. Even
so sophisticated a body of schemers and cover-up artists as the Nixon
White House got tripped up by memos they had forgotten existed, that
revealed Tricky Dick knew about the Watergate break-in weeks before he
had asserted on a stack of Bibles he had first heard about it (I just
watched "Frost/Nixon" last night. Highly recommended).
If a responding party fails to disclose discoverable evidence, and
that failure is or becomes known to the requesting party, the
requesting party can move for sanctions, which in an egregious case
can include dismissal of a claim (if sought against a weaselly
plaintiff) or a default judgment in favor of plaintiff's liability
claims (if sought against a weaselly defendant) in addition to
monetary sanctions for all the additional work the shell-game player
required the moving party's attorney to go thru in order to get to
that point, which they could have avoided if the responding party had
come clean in the first place.
In fact, a very common scenario in suits vs. major corporations that
LIKE to play this "hide the salami" game because it is part of their
corporate culture, is for a plaintiff attorney to ask for the type of
evidence that would show negligence by the corporate defendant, and
then when he gets stonewalled in his case, to find ON HIS OWN (or with
the aid of documents produced by that corporate defendant in OTHER
previous cases) evidence that the defendant FAILED to properly respond
to a legitimate discovery request, so that the stonewalling defendant
LOSES the right to even contest liability in the new case, and the
trial will be limited to the issue of plaintiff's damages (or, more
likely, will settle once the judge has entered the default sanction).
Some defendants in particular like to play this game, but never seem
to learn from their errors. Some big-box discount retailers, for
example. Sue them for a slip-and-fall in one of their stores and
they will claim no security video record ever existed of the area in
question, especially not one showing the plaintiff actually slipping
and falling. However, generally, they DO make such tapes, covering
the ENTIRE store, but they fail to _preserve_ the relevant ones after
an accident (out of stupidity, if not malice) - thereby, "destroying
evidence" by re-recording over them even when they should have known
better (e.g. when a manager has taken an accident report from the
customer, and they _know_ as soon as it happens that a potential claim
exists). Many a case has been won on this "spoliation of evidence"
theory regardless of the actual reasons the plaintiff slipped and fell
inside the store.
> >Both sides may introduce evidence to support the truth of their respective
> >claims and evidence to cast doubt on the evidence of the other side. �For
> >the most part, each side must disclose to the other evidence in the first
> >category but not evidence in the second. �If the only purpose of some
> >evidence is to cast doubt on the other side's case, it does not have to be
> >disclosed beforehand.
That generally refers to evidence one side knows that is harmful to
the OTHER side. The reason for not having to reveal it until you use
it, is to allow the other side a chance (if they are so tempted) to
LIE about it (when the other side darn well KNOWS the truth already)
and then to be able to cross-examine them about their lie. The
incentive, of course, being to encourage everyone to tell the truth,
even about the warts on your own case, because you never know what
dirt the other side might already know about you if you try to sweep
it under the rug.
> Looking at it this way, aren't there four kinds of evidence? �A)
> Evidence to support the truth of a side's claims. �B) Evidence that
> goes against the truth of them. � � C) Evidence that that supoports
> the claims of the other side, and D) evidence that casts doubt on it.
>
> You've dealt with two kinds, A and D, and the OP is asking about
> category B.
Categories A, B, and C must be disclosed in discovery if properly
asked for.
Category D may be withheld as impeachment material IF the party
holding that information does NOT intend to use it in their case in
chief, but wants to hold onto it for use as possible impeachment
material IF the other side lies about that issue in trying to bolster
the other side's case - the party holding the impeachment information
can then come forward and confront the liar with the truth, enhancing
the value of his own evidence while also proving the other side to be
liars. However, the party holding "type D" evidence may ALSO prefer
to make a strategic decision to DISCLOSE such material early on, to
show the other side they DO already know the truth and that it is no
use trying to lie. This is done more often where doing so would have
a better chance of making the other side fold their cards and settle
rather than forcing a full trial. But, as noted, it is a judgment
call, and there is no clear requirement one way or the other to
disclose evidence known to you that is HURTFUL to the OTHER side.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300