Fifth Amendment privilege in Rhode Island

2024“The Fifth Amendment privilege against self-incrimination ‘may properly be invoked in a civil proceeding regardless of whether there is a pending criminal matter arising out of the same set of factual circumstances.’” In re Rosalie H., 889 A.2d at 206 (quoting Tona, Inc. v. Evans, 590 A.2d 873, 875 (R.I. 1991)).

2024“The Fifth Amendment privilege against self-incrimination ‘may properly be invoked in a civil proceeding regardless of whether there is a pending criminal matter arising out of the same set of factual circumstances.’” In re Rosalie H., 889 A.2d at 206 (quoting Tona, Inc. v. Evans, 590 A.2d 873, 875 (R.I. 1991)).

2019The rationale undergirding Escobedo in the context of custodial interrogations, however, was largely supplanted by the Fifth Amendment analysis enunciated by the Supreme Court in Miranda v. Arizona , 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

2019The rationale undergirding Escobedo in the context of custodial interrogations, however, was largely supplanted by the Fifth Amendment analysis enunciated by the Supreme Court in Miranda v. Arizona , 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

2000When, as here, the court deals with private litigants, “the privilege against self-incrimination must be weighed against the right of the other party to due process and a fair trial.” Pulawski v. Pulawski, 463 A.2d 151, 157 (R.I.1983).

2000Thus, while a witness cannot be compelled to testify after a valid assertion of the privilege, id., this Court has approved the imposition of sanctions in a civil action upon one who seeks to assert his Fifth Amendment privilege against self-incrimination.

2021And where are we going with this? 9 This Court has previously held that “[w]hen a witness refuses to testify and invokes a legitimate Fifth Amendment privilege, the Sixth Amendment Confrontation Clause no longer applies because the witness is unavailable.” State v. Ramirez, 936 A.2d 1254, 1265 (R.I. 2007) (citing California v. Green, 399 U.S. 149, 167-68 (1970)).

2016This is so because we have held that "[w]hen a witness refuses to testify and invokes a legitimate Fifth Amendment privilege, the Sixth Amendment Confrontation Clause no longer applies because the witness is unavailable.” State v. Ramirez, 936 A.2d 1254, 1265 (R.I.2007) (citing California v. Green, 399 U.S. 149, 167-68 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970)). 9 .

1981To effect a waiver, he would have had to relinquish or abandon the privilege intentionally, Hummell v. Superior Court, 100 R.I. 54, 58 , 211 A.2d 272, 274 (1965), or he would have to have given self-incriminating testimony on direct examination without claiming his privilege, thereby making himself subject to cross-examination on all matters raised by or relevant to that testimony.

1975I. 54, 58-60, 211 A.2d 272, 274-75 (1965), the fifth amendment privilege accords the right to refuse to incriminate oneself, and the privilege extends not only to disclosures that would support a conviction but extends also to such disclosures as would constitute a link in a chain of evidence needed to initiate a prosecution. 1 In discussing the nature of the obligation of the court to pass upon the validity of a claim of the privilege, we quoted the following language from Hoffman v. United States, 341 U.S. 479, 486-87 , 71 S.Ct. *213 814, 818, 95 L.Ed. 1118, 1124 (1951), showing that Court’s

2021And where are we going with this? 9 This Court has previously held that “[w]hen a witness refuses to testify and invokes a legitimate Fifth Amendment privilege, the Sixth Amendment Confrontation Clause no longer applies because the witness is unavailable.” State v. Ramirez, 936 A.2d 1254, 1265 (R.I. 2007) (citing California v. Green, 399 U.S. 149, 167-68 (1970)).

2016This is so because we have held that "[w]hen a witness refuses to testify and invokes a legitimate Fifth Amendment privilege, the Sixth Amendment Confrontation Clause no longer applies because the witness is unavailable.” State v. Ramirez, 936 A.2d 1254, 1265 (R.I.2007) (citing California v. Green, 399 U.S. 149, 167-68 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970)). 9 .

2010"Both [the Rhode Island Supreme Court] and the United States Supreme Court have clearly established that the Fifth Amendment privilege against self-incrimination extends only to evidence that is testimonial or communicative in nature." State v. Alston , 900 A.2d 1212 , 1221 (R.I. 2006) (citing Schmerber , 384 U.S. at 761 ; State ex rel.

2010"Both [the Rhode Island Supreme Court] and the United States Supreme Court have clearly established that the Fifth Amendment privilege against self-incrimination extends only to evidence that is testimonial or communicative in nature." State v. Alston , 900 A.2d 1212 , 1221 (R.I. 2006) (citing Schmerber , 384 U.S. at 761 ; State ex rel.

2024“The Fifth Amendment privilege against self-incrimination ‘may properly be invoked in a civil proceeding regardless of whether there is a pending criminal matter arising out of the same set of factual circumstances.’” In re Rosalie H., 889 A.2d at 206 (quoting Tona, Inc. v. Evans, 590 A.2d 873, 875 (R.I. 1991)).

2024“The Fifth Amendment privilege against self-incrimination ‘may properly be invoked in a civil proceeding regardless of whether there is a pending criminal matter arising out of the same set of factual circumstances.’” In re Rosalie H., 889 A.2d at 206 (quoting Tona, Inc. v. Evans, 590 A.2d 873, 875 (R.I. 1991)).

2018Moreover, the Supreme Court has explained that "the Fifth Amendment privilege is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.' " Id. (quoting Oregon v. Elstad , 470 U.S. 298 , 305, 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985) ).

2018Moreover, the Supreme Court has explained that "the Fifth Amendment privilege is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.' " Id. (quoting Oregon v. Elstad , 470 U.S. 298 , 305, 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985) ).

1998His respect for stare decisis is illustrated by the fact that after dissenting from such major opinions as Benton v. Maryland, 395 U.S. 784, 801 , 89 S.Ct. 2056, 2066 , 23 L.Ed.2d 707, 719 (1969) (making the ban on double jeopardy applicable to the states); Miranda v. Arizona, 384 U.S. 436, 504 , 86 S.Ct. 1602, 1643 , 16 L.Ed.2d 694, 740 (1966) (setting standards for in-custodial interrogation); and Malloy v. Hogan, 378 U.S. 1, 14 , 84 S.Ct. 1489, 1497 , 12 L.Ed.2d 653, 663 (1964) (making Fifth Amendment privilege against self-incrimination applicable to the states), he went on in later opinio

1998His respect for stare decisis is illustrated by the fact that after dissenting from such major opinions as Benton v. Maryland, 395 U.S. 784, 801 , 89 S.Ct. 2056, 2066 , 23 L.Ed.2d 707, 719 (1969) (making the ban on double jeopardy applicable to the states); Miranda v. Arizona, 384 U.S. 436, 504 , 86 S.Ct. 1602, 1643 , 16 L.Ed.2d 694, 740 (1966) (setting standards for in-custodial interrogation); and Malloy v. Hogan, 378 U.S. 1, 14 , 84 S.Ct. 1489, 1497 , 12 L.Ed.2d 653, 663 (1964) (making Fifth Amendment privilege against self-incrimination applicable to the states), he went on in later opinio

1998His respect for stare decisis is illustrated by the fact that after dissenting from such major opinions as Benton v. Maryland, 395 U.S. 784, 801 , 89 S.Ct. 2056, 2066 , 23 L.Ed.2d 707, 719 (1969) (making the ban on double jeopardy applicable to the states); Miranda v. Arizona, 384 U.S. 436, 504 , 86 S.Ct. 1602, 1643 , 16 L.Ed.2d 694, 740 (1966) (setting standards for in-custodial interrogation); and Malloy v. Hogan, 378 U.S. 1, 14 , 84 S.Ct. 1489, 1497 , 12 L.Ed.2d 653, 663 (1964) (making Fifth Amendment privilege against self-incrimination applicable to the states), he went on in later opinio

1998His respect for stare decisis is illustrated by the fact that after dissenting from such major opinions as Benton v. Maryland, 395 U.S. 784, 801 , 89 S.Ct. 2056, 2066 , 23 L.Ed.2d 707, 719 (1969) (making the ban on double jeopardy applicable to the states); Miranda v. Arizona, 384 U.S. 436, 504 , 86 S.Ct. 1602, 1643 , 16 L.Ed.2d 694, 740 (1966) (setting standards for in-custodial interrogation); and Malloy v. Hogan, 378 U.S. 1, 14 , 84 S.Ct. 1489, 1497 , 12 L.Ed.2d 653, 663 (1964) (making Fifth Amendment privilege against self-incrimination applicable to the states), he went on in later opinio

1991The Supreme Court of the United States has steadfastly maintained that a defendant’s declining to testify is protected by the Fifth Amendment privilege against self-incrimination and that no adverse inferences may be drawn by the trier of fact therefrom since its landmark case in Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965).

1991The Supreme Court of the United States has steadfastly maintained that a defendant’s declining to testify is protected by the Fifth Amendment privilege against self-incrimination and that no adverse inferences may be drawn by the trier of fact therefrom since its landmark case in Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965).

1991The right cannot be invoked or waived by anyone but the person to whom the right attaches, for “the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to the information that may incriminate him.” Couch v. United States, 409 U.S. 322, 328 , 93 S.Ct. 611, 616 , 34 L.Ed.2d 548, 554 (1973).

1991The right cannot be invoked or waived by anyone but the person to whom the right attaches, for “the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to the information that may incriminate him.” Couch v. United States, 409 U.S. 322, 328 , 93 S.Ct. 611, 616 , 34 L.Ed.2d 548, 554 (1973).

2024Moreover, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.” Id. (quoting LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995)).

2024Moreover, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.” Id. (quoting LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995)).

2023We have stated that “[t]he application of Rule 403 is committed to the sound discretion of the trial justice.” State v. Rios, 996 A.2d 635, 640 (R.I. 2010); see also State v. Patel, 949 A.2d 401, 413 (R.I. 2008); State v. Silvia, 898 A.2d 707, 716 (R.I. 2006); State v. Kaner, 876 A.2d 1133, 1134 (R.I. 2005) (mem.) (“[T]he issue of whether otherwise relevant evidence should be excluded pursuant to the provisions 1 I am in agreement with the majority that, taking into account the circumstances summarized in the majority opinion, the Rule 403 objection relative to the testimony of Kristen Verdeau

2023We have stated that “[t]he application of Rule 403 is committed to the sound discretion of the trial justice.” State v. Rios, 996 A.2d 635, 640 (R.I. 2010); see also State v. Patel, 949 A.2d 401, 413 (R.I. 2008); State v. Silvia, 898 A.2d 707, 716 (R.I. 2006); State v. Kaner, 876 A.2d 1133, 1134 (R.I. 2005) (mem.) (“[T]he issue of whether otherwise relevant evidence should be excluded pursuant to the provisions 1 I am in agreement with the majority that, taking into account the circumstances summarized in the majority opinion, the Rule 403 objection relative to the testimony of Kristen Verdeau

2023This Court in Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188 (R.I. 1994), sagaciously observed that “[t]he determination of the value of evidence should normally be placed in the control of the party who offers it.” Wells, 635 A.2d at 1193 ; see also Boscia v. Sharples, 860 A.2d 674, 678 (R.I. 2004).

2023In all probability the testimony 5 See Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188, 1193 (R.I. 1994); see also State v. Silvia, 898 A.2d 707, 717 (R.I. 2006). - 27 - of Kristen Verdeaux and her assertion of her Fifth Amendment privilege had an impact on the jury, but properly so.

2023The possible impact that Verdeaux’s invocation of her Fifth Amendment privilege had upon the jury is discernible from its assessment of punitive damages against defendant in favor of the Estate of Lillian Estrella in the amount of $1,560,909.46 on plaintiff’s count for conversion.6 Significantly, the trial justice had instructed the jury that it “may award punitive damages against those defendants if the defendant acted with malice, wantonness, or willfulness of such an extreme nature as to amount to criminality * * *.” This Court has said that “the discretion to exclude evidence under Rule 40

2023“It is only evidence that is marginally relevant and enormously prejudicial that must be excluded.” Id. at 412-13 . 6 The trial justice found that “the jury’s finding for Lillian’s Estate on the conversion claim is clearly erroneous from the face of the [j]udgment because Lillian’s Estate was never in possession of, or entitled to possession of, the Disputed Funds.” Based upon this, the trial justice struck “from the [j]udgment the punitive damages award for Lillian’s Estate against [defendant] because punitive damages are appropriate only when a party has been awarded compensatory damages.” -

2023We have stated that “[t]he application of Rule 403 is committed to the sound discretion of the trial justice.” State v. Rios, 996 A.2d 635, 640 (R.I. 2010); see also State v. Patel, 949 A.2d 401, 413 (R.I. 2008); State v. Silvia, 898 A.2d 707, 716 (R.I. 2006); State v. Kaner, 876 A.2d 1133, 1134 (R.I. 2005) (mem.) (“[T]he issue of whether otherwise relevant evidence should be excluded pursuant to the provisions 1 I am in agreement with the majority that, taking into account the circumstances summarized in the majority opinion, the Rule 403 objection relative to the testimony of Kristen Verdeau

2023This Court in Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188 (R.I. 1994), sagaciously observed that “[t]he determination of the value of evidence should normally be placed in the control of the party who offers it.” Wells, 635 A.2d at 1193 ; see also Boscia v. Sharples, 860 A.2d 674, 678 (R.I. 2004).

2023This Court in Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188 (R.I. 1994), sagaciously observed that “[t]he determination of the value of evidence should normally be placed in the control of the party who offers it.” Wells, 635 A.2d at 1193 ; see also Boscia v. Sharples, 860 A.2d 674, 678 (R.I. 2004).

2023See generally Freeman v. Package Machinery Company, 865 F.2d 1331 , 1340 (1st Cir. 1988) (Selya, J.) (“Only rarely—and in extraordinarily compelling circumstances—will we, from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.”).2 I am completely unable to see how the trial justice in this case abused his discretion in allowing Kristen Verdeaux to invoke her Fifth Amendment privilege in the presence of the jury.

2023We have stated that “[t]he application of Rule 403 is committed to the sound discretion of the trial justice.” State v. Rios, 996 A.2d 635, 640 (R.I. 2010); see also State v. Patel, 949 A.2d 401, 413 (R.I. 2008); State v. Silvia, 898 A.2d 707, 716 (R.I. 2006); State v. Kaner, 876 A.2d 1133, 1134 (R.I. 2005) (mem.) (“[T]he issue of whether otherwise relevant evidence should be excluded pursuant to the provisions 1 I am in agreement with the majority that, taking into account the circumstances summarized in the majority opinion, the Rule 403 objection relative to the testimony of Kristen Verdeau

2023In all probability the testimony 5 See Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188, 1193 (R.I. 1994); see also State v. Silvia, 898 A.2d 707, 717 (R.I. 2006). - 27 - of Kristen Verdeaux and her assertion of her Fifth Amendment privilege had an impact on the jury, but properly so.

2023We have stated that “[t]he application of Rule 403 is committed to the sound discretion of the trial justice.” State v. Rios, 996 A.2d 635, 640 (R.I. 2010); see also State v. Patel, 949 A.2d 401, 413 (R.I. 2008); State v. Silvia, 898 A.2d 707, 716 (R.I. 2006); State v. Kaner, 876 A.2d 1133, 1134 (R.I. 2005) (mem.) (“[T]he issue of whether otherwise relevant evidence should be excluded pursuant to the provisions 1 I am in agreement with the majority that, taking into account the circumstances summarized in the majority opinion, the Rule 403 objection relative to the testimony of Kristen Verdeau

2019See Miranda , 384 U.S. at 465 -66 , 86 S.Ct. 1602 ; see also Kirby , 406 U.S. at 689 , 92 S.Ct. 1877 .

2019See Miranda , 384 U.S. at 465 -66 , 86 S.Ct. 1602 ; see also Kirby , 406 U.S. at 689 , 92 S.Ct. 1877 .