“Taking the Fifth” at an administrative hearing

During contested cases before administrative tribunals, it sometimes happens that a witness refuses to testify on the ground that his answer might tend to incriminate him. Although everyone recognizes that a decision in a criminal case is not to be influenced by a defendant's exercise of his Fifth Amendment right, case law teaches that a civil or administrative tribunal may legitimately draw a negative inference from an individual's invocation of his right to remain silent. While a negative inference, standing alone, may not be a sufficient basis on which to rest a decision, the following cases demonstrate that a witness' silence can have a significant influence on the final determination of a fact-finder, whether or not the witness is a party to the proceeding.

In Baxter v. Palmigiano, 425 U.S. 308 (1976), where a state prison disciplinary board had drawn a negative inference from an inmate's silence at a disciplinary hearing, the Supreme Court recognized that a decision-maker could consider the evidentiary significance of a party's choice to remain silent in a non-criminal forum. Citing 8 J. Wigmore,

Evidence 439 (McNaughton rev. 1961), the Court endorsed "the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment 'does not preclude the inference where the privilege is claimed by a party to a Civil cause.'" 425 U.S. at 318.

The reasoning of Baxter has been followed in the context of other administrative proceedings. In Arthurs v. Stern, 560 F.2d 477 (lst Cir. 1977), the Court of Appeals reasoned that a medical disciplinary board was entitled to draw an adverse inference from a physician's refusal to testify before that board, when he was also the subject of a pending criminal indictment. Citing the Supreme Court's decision in Baxter and the First Circuit's decision in Arthurs, the Illinois appellate court ruled that a negative inference could be drawn from invocation of the Fifth Amendment privilege in a civil service hearing brought to discharge a community services supervisor employed by the Illinois Commission on Delinquency Prevention. In Giampa v. Illinois Civil Service Commission, 89 Ill. App. 3d 606, 411 N.E.2d 1110 (1st Dist. 1980), a hearing officer considered the evidence presented, together with a state employee's invocation of the Fifth Amendment, at the civil service hearing that was convened to determine whether the employee should be discharged. In upholding the employee's dismissal, the appellate court explained that "[t]he constitutional guarantee against self-incrimination protects a witness from being forced to give testimony leading to the imposition of criminal penalties, but it does not insulate a witness from every possible detriment resulting from his testimony." 89 Ill. App. 3d at 613, 411 N.E.2d at 1116.

Subsequently, in Canter v. Cook County Officers Electoral Board, 170 Ill. App. 3d 364, 523 N.E.2d 1299 (1st Dist. 1988), the appellate court upheld the drawing of a negative inference on the basis of a non-party witness' refusal to testify. Canter was a democratic candidate for circuit court judge, whose nominating papers were challenged before the Cook County Officers Electoral Board. At a hearing, after evidence was presented challenging the authenticity of certain signatures on several sheets of the nominating petition, the named circulator of those sheets was subpoenaed to testify; he refused to do so, invoking the Fifth Amendment. The electoral board found the circulator's oath on those sheets to be "incredible" and struck the oath, relying, in part, on the negative inference that it drew from the circulator's refusal to testify.

The appellate court found "ample support" for the electoral board's conclusion and rejected an argument that it was error for the board to draw a negative inference against Canter because of a non-party's refusal to testify. Citing an absence of law to preclude the drawing of a negative inference under these circumstances and reasoning that the inference drawn in this case did not go to the issue of Canter's credibility, but only to the issue of the circulator's credibility, the court stated that "it is apparent that the trier of fact in a civil case, unlike a criminal case, is not barred from considering a witness' refusal to testify." 170 Ill. App. 3d at 370.

The Canter decision has apparently never been cited in a published opinion discussing the Fifth Amendment issue, but the U.S. Court of Appeals for the Second Circuit has, more recently, considered at length the evidentiary significance of a non-party witness' invocation of his right to remain silent. Although the Second Circuit discusses a civil, rather than an administrative law, matter, the court's thorough analysis flows from Baxter v. Palmigiano and should be persuasive authority in either type of forum.

In LiButti v. United States, 107 F.3d 110 (2d Cir. 1997), the court of appeals addressed an effort by the IRS to collect Robert LiButti's unpaid income taxes by placing a tax levy on a race horse named "Devil His Due." Edith LiButti, Robert's daughter, brought a wrongful levy action against the government, claiming that she, and not her father, was the sole owner of Devil His Due. Included in the complicated factual scenario before the court was the information that Robert, when called upon to give a deposition in his daughter's action, refused to answer any of the questions put to him regarding ownership of the horse. The district court, however, declined to draw any adverse inference on the basis of Robert's silence and ruled in Edith's favor. The government appealed.

Citing "the undeveloped posture of the law pertaining to adverse inferences when non-party witnesses invoke the Fifth Amendment in civil litigation," 107 F.3d at 120, the Second Circuit provided a detailed examination of pertinent law and commentary. It then identified a number of non-exclusive factors to consider in reaching a decision whether to draw a negative inference against a party to a civil action on the basis of a non-party's refusal to testify in that action: (1) the nature of the relationship between the party and the non-party witness; (2) the degree of control of the party over the non-party witness; (3) the compatibility of the interests of the party and non-party witness in the outcome of the litigation; and (4) the role of the non-party witness in the litigation. 107 F.3d at 123. The court of appeals concluded that an adverse inference could and should be drawn against Edith on the basis of her father's invocation of the Fifth Amendment, stating that the circumstances of the case before it "compel[led] the admissibility and consideration by the trial court of Robert's refusals to answer the questions addressed to him that struck directly at the only issue before the court--whether he or his daughter was the effective owner" of the race horse. Id. at 124. It went on to discuss the weight to be accorded an adverse inference, noting "Justice Brandeis' classic admonition: 'Silence is often evidence of the most persuasive character,'" id., but also acknowledging that a negative inference alone cannot automatically result in the assessment of a serious penalty against the person who exercises his Fifth Amendment privilege.

The court of appeals remanded the case to the district court for reconsideration of "who is due Devil His Due." Id. at 125. On remand, the district court accorded "considerable weight" to the adverse inference drawn on the basis of Robert's silence, concluded that Edith held title to the horse only as her father's nominee, and ruled in favor of the government. See LiButti v. United States, 178 F.3d 114, 117, 120 (2d Cir. 1999).

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*This article was first published in the ISBA's Administrative Law newsletter, April 2000, Vol. 29, No. 5, and is reprinted with permission.