The team at Dodson Parker Behm & Capparella, PC shares updates and thoughts on developments in the law.

When Your Civil Suit Intersects with a Criminal Prosecution

October 3, 2016

A version of this article originally appeared as the Monthly Spotlight Article in the Tennessee Tort Law Letter.  DPBC attorneys Donald Capparella, Tyler Chance Yarbro, and Elizabeth Sitgreaves serve as editors. To learn about subscribing click here.

If you are a tort law practitioner, then it is not unusual to have a criminal case pending alongside a tort case you are handling. This intersection of the areas of law requires careful attention on behalf of the practitioner.

Service of Process
If you are representing a plaintiff who sues someone who is incarcerated, then your first question may be how best to serve that person with the lawsuit. Under Rule 4.04 of the Tennessee Rules of Civil Procedure, service of process may be accomplished by certified mail. The better practice would be personal service, as opposed to service by certified mail, because inmates are unlikely to be permitted to sign for mail. See e.g., Deal v. Polk County, No. 1:03-cv-385, 2007 WL 951868 (Tenn. Ct. App. March 27, 2008) (setting aside a default judgment entered against an incarcerated defendant where plaintiff attempted to serve the defendant by certified mail, but someone other than the defendant signed for the certified mail).

There is a statute that governs service of process on Tennessee inmates. Tennessee Code Annotated sec. 41-21-301 provides as follows: “Process in a civil action against an inmate in the penitentiary may be served by the proper officer, in the presence of the warden or the assistant warden, and returned as in other cases.” While the language in this statute appears discretionary (“may be served”) as opposed to mandatory (not “shall be served”), service in compliance with Tenn. Code Ann. § 41-21-301 would ensure that your service of process is effective.

Discovery in a civil case against someone who either has been or may be charged with a crime presents particular difficulties. That defendant has rights under the Fifth Amendment to the United States Constitution not to make incriminating statements. While the Fifth Amendment indicates that “[n]o person…shall be compelled in any criminal case to be a witness against himself” this right has been read to extend to statements given in the civil context as well. Fifth Amendment protections extend to any type of proceeding, including civil trials, under circumstances where “the person invoking the privilege reasonably believes that his disclosures could be used in a criminal prosecution, or could lead to other evidence that could be used in that matter” or “where the disclosures would not be directly incriminating, but could provide an indirect link to incriminating evidence.” Akers v. Prime Succession of Tenn., Inc., 387 S.W.3d 495, 505 (Tenn. 2012), citing Doe v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000).

The Fifth Amendment privilege may be invoked by a defendant in this situation in responding to written discovery or deposition questions. The Court in the Akers case noted, however, that the assertion of a constitutional right by one party “should not obliterate another party’s right to a fair proceeding.” Id. (internal quotation omitted). The defendant who asserts a Fifth Amendment right not to answer discovery should assert the right in reference to a specific question. It is not appropriate to make a blanket objection to all discovery; rather, the Fifth Amendment protection should be asserted in response to specific questions, which allows a reviewing court to determine whether a responsive answer might lead to an incriminating disclosure. See e.g., Floyd v. Prime Succession of TN, No. E2006-01085-COA-R9-CV, 2007 WL 2297810, *6 (Tenn. Ct. App. 2007).

If a party asserts a Fifth Amendment privilege in a civil case in response to questions presented at trial, then the jury may be permitted to draw a negative inference from the refusal to answer. Akers, 387 S.W.3d at 506. The Akers case held as follows:

the trier of fact may draw a negative inference from a party’s invocation of the Fifth Amendment privilege in a civil case only when there is independent evidence of the fact to which a party refuses to answer by invoking his or her Fifth Amendment privilege. In instances when there is no corroborating evidence to support the fact under inquiry, no negative inference is permitted.

If a party refuses to answer a question on Fifth Amendment grounds and there is corroborating evidence to support the fact intended to be elicited by the inquiry, then you should request a jury instruction explaining the adverse inference that the jury is permitted to draw.

Disposition of the Criminal Case
Under Rule 410 of the Tennessee Rules of Evidence, a plea of nolo contendere is not admissible against the party who made the plea. A nolo contendere plea is not viewed as an express admission of guilty, but as “a consent by the defendant that he may be punished as if he were guilty and a prayer for lenience.” State v. Crowe, 168 S.W.3d 731, 746 (Tenn. 2005), quoting North Carolina v. Alford, 400 U.S. 25, 35-36, n. 8 (1970).

In contrast, a plea of guilty to a criminal charge can certainly be used as proof that the defendant did, in fact, commit the crime to which he plead guilty. Thus, if you would like to be able to use proof of a guilty plea in your civil suit, then you may want to be involved in plea negotiations in an attempt to influence the outcome of the criminal case.

There are certainly numerous other ways that a parallel criminal prosecution can influence your civil case. These are only the high points. Each of these considerations should be noted when your civil lawsuit has a companion criminal prosecution pending at the same time.

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