Download - Legal Memorandum on the 5th Amendment
MEMORANDUM Subject: May the court draw adverse inferences from a parent’s invocation of the
Fifth Amendment privilege against self-incrimination in Child Protection proceedings?
Questions Presented
1. May the court draw adverse inferences from a parent’s failure to testify in a
Neglect or Termination of Parental Rights proceeding?
2. May the court draw adverse inferences from a parent’s refusal to respond to
discovery requests in a Neglect or Termination of Parental Rights proceeding?
Discussion
1. May the court draw adverse inferences from a parent’s failure to testify in a Neglect or Termination of Parental Rights proceeding?
Although literally speaking the Fifth Amendment privilege against self-
incrimination applies only to criminal proceedings, the privilege has been construed to
extend to witnesses in civil proceedings where the answer to interrogation may subject
the witness to criminal prosecution. See Whitaker v. Prince George's County, 514 A.2d 4
(Md. 1986) as cited in Robinson v. Robinson, 615 A.2d 1190 (Md. 1992). Thus, in a civil
case the Fifth Amendment protects a witness from being required to make disclosure that
could incriminate him in a later criminal prosecution. See Whitaker v. Prince George's
County, 514 A.2d 4 (Md. 1986) as cited in Robinson, 615 A.2d at 1193. Case law has
repeatedly emphasized that a [Child Protection] proceeding is civil in nature. See Matter
of Commissioner of Social Services of City of New York [Denise R.], 219 AD2d 715 [2d
Dept 1995]; Matter of Randy A., 248 AD2d 838 [3d Dept 1998], both suggesting that a
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Child Neglect proceeding under New York Family Court Act article 10 is civil in nature,
as cited in Matter of David E., 176 Misc. 2d 363, 672 N.Y.S.2d 659 (1998). Thus, the
Fifth Amendment privilege against self-incrimination applies to witnesses in Child
Protection proceedings.
The Fifth Amendment privilege is not automatically implicated every time the
choice is made not to testify. In re J.W., 2003 D.C. App. LEXIS 697, 837 A.2d 40
(2003). Appellate review arises not from the existence of the privilege, but from its
invocation. Id. at 20, 837 A.2d at 48. Recognizing that in a Neglect proceeding, a parent
is not a criminal defendant, but a potential witness, the District of Columbia Court of
Appeals has said that the Fifth Amendment privilege enjoyed by a witness is narrower
than that of a defendant. See Littlejohn v. United States, 705 A.2d 1077 (D.C. 1997)
(quoting Harris v. United States, 614 A.2d 1277 (D.C. 1992)) as cited in J.W. at 20, 837
A.2d at 48. Unlike the criminal defendant, a witness may not refuse to take the witness
stand, but rather, must invoke the privilege as to those specific questions to which his
answers would incriminate him. See Littlejohn v. United States, 705 A.2d 1077 (D.C.
1997) (quoting Wilson v. United States, 558 A.2d 1135 (D.C. 1989)) as cited in J.W. at
20, 837 A.2d at 48. The court must then resolve the Fifth Amendment claim as to the
particular question.
In J.W., the father claimed that the Neglect proceeding violated his right to due
process of law. He argued that because he chose to exercise his Fifth Amendment
privilege by not testifying in the Neglect proceeding so as to prevent the government
from using his testimony in the pending criminal appeal, he was unable to “tell his side of
the story” at the Neglect hearing, and therefore was effectively “punished for exercising
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his Fifth Amendment right.” The court disagreed, stating as follows: “The Fifth
Amendment privilege is not self-executing. Rather, the privilege must be [invoked] in a
manner that fairly brings it to the attention of the trial court, and the court must then
resolve it.” See Roberts v. United States, 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358
(1980) as cited in J.W. at 20, 837 A.2d at 48. The court held that the father was never
punished for exercising his Fifth Amendment privilege as there was no evidence that he
invoked the privilege: “By virtue of [the father’s] request for a stipulated trial, no
incriminating question was ever posed…that would have afforded [the father] even the
opportunity to invoke the privilege’s protection.” J.W., 2003 D.C. App. LEXIS 697 at
20.
The court further held that even if the record could be read to support the father’s
invocation of the Fifth Amendment privilege, it was never tested in the trial court. See
Littlejohn, 705 A.2d at 1083 (stating that when a witness invokes the Fifth Amendment
privilege, the court should…rule on the claim of privilege one question at a time)
(quoting Harris, 614 A.2d at 1282) as cited in J.W. at 20, 837 A.2d at 48. Concluding
that such determinations in the trial court are necessary predicates to effective appellate
review of a witness's Fifth Amendment claim, the court found that the assigned error was
not properly preserved. For effective appellate review to occur, then, the parent must not
only invoke the privilege as to the specific question to which his answer would
incriminate him, but the trial court must resolve the Fifth Amendment claim as to the
particular question.
Case law suggests that an adverse inference may be drawn from a witness’s
failure to testify in a civil proceeding. More specifically, an adverse inference may be
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drawn from a parent’s failure to testify in a Child Protection proceeding. As to civil
proceedings generally, some cases suggest that the witness’s failure to testify should only
be used as a factor, to be weighed with all other relevant evidence, in determining
liability. Other cases seem to suggest that the fact-finder is limited to the adverse
inference that can reasonably be drawn from the witness’s failure to testify. As to Child
Protection proceedings specifically, case law suggests that the trial court must give the
parent prior notice of its intent to draw an adverse inference from the parent’s failure to
testify.
Again, an adverse inference may be drawn from a witness’s failure to testify in a
civil proceeding. The United States Supreme Court’s conclusion in Baxter v.
Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) is consistent with 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 Fifth Amendment “does not preclude the inference where the
privilege is claimed by a party to a civil cause.” See 8 J. Wigmore, Evidence 439
(McNaughton rev. 1961) as cited in Baxter at 318. In Baxter, a prison inmate was
informed that he had a right to remain silent during his disciplinary hearing but that if he
did so his silence could be held against him. On the basis of the hearing, at which he
remained silent, the inmate was placed in “punitive segregation” for 30 days. The inmate
filed an action for damages and injunctive relief, claiming that the disciplinary hearing
violated his right to due process of law.
The court of appeals concluded that the Fifth Amendment forbids drawing
adverse inferences against an inmate from his failure to testify. In reversing the court of
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appeals, the Court held that prison officials could draw reasonable inferences from an
inmate’s silence given the civil nature of the proceedings. The Court reasoned that since
prison disciplinary hearings were not criminal proceedings, prisoners had fewer rights,
and the needs of the prisons had to be balanced against any of the inmates’ rights: “In
criminal cases, where the stakes are higher and the State's sole interest is to convict, [the
judge and prosecutor are prohibited] from suggesting to the jury that it may treat the
defendant's silence as substantive evidence of guilt. Disciplinary proceedings in state
prisons, however, involve the correctional process and important state interests other than
conviction for crime.” Baxter, 425 U.S. at 318.
In ruling that an adverse inference was allowed in civil cases, the Court clarified
the extent to which an inference could be drawn by stating that “a prison inmate…
electing to remain silent during his disciplinary hearing…is not in consequence of his
silence automatically found guilty of the infraction with which he has been charged.”
Baxter, 425 U.S. at 317. The court continued, “[D]isciplinary decisions ‘must be based
on substantial evidence manifested in the record of the disciplinary proceeding.’” See
Morris v. Travisono, 310 F. Supp. 857 (RI 1970) as cited in Baxter, 425 U.S. at 317.
Thus, the Court held that while an adverse inference was allowed, the fact that the
witness failed to testify was only to be used as a factor, to be weighed with all other
relevant evidence, in determining liability.
The Court of Appeals of Maryland in Robinson agreed that the court may
properly draw an adverse inference against a witness for his or her failure to testify in a
civil proceeding. Like the court in Baxter, however, the court in Robinson placed a
limitation, by limiting the trier of fact to the adverse inference that could reasonably be
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drawn from the witness’s failure to testify. In Robinson, the husband’s attorney cross-
examined the wife about an extramarital relationship during the couple’s child custody
proceedings. The wife refused to answer the questions, exercising her Fifth Amendment
privilege against self-incrimination. The trial court awarded custody to the wife, and the
husband appealed. The husband claimed that the negative inference that could be drawn
from the wife’s refusal to answer questions regarding her adultery established not only
her commission of adultery, but also her unfitness for custody. See Robinson v.
Robinson, 615 A.2d 1190 (Md. 1992) as cited in Long v. Long, 785 A.2d 818 (Md. App.
2001). The court disagreed, holding that the only proper inference produced by the
wife’s silence was that she had committed adultery.
The court reasoned that while the fact finder may draw an adverse inference from
an adverse party’s refusal to answer a question posed during that party's testimony, the
adverse party's refusal, taken alone, does not relieve a party of his or her burden of proof
on the issue that was the subject of the question. See Whitaker v. Prince George's
County, 514 A.2d 4 (Md. 1986) as cited in Robinson, 615 A.2d at 1194. The court went
on to say that “[while] the fact of adultery may be a relevant consideration in child
custody awards, no presumption of unfitness [for custody] arises from it; rather, it should
be weighed, along with all other…factors, only insofar as it affects the child’s welfare.”
Robinson, 615 A.2d at 1194. Thus, the court held that although the trier of fact may draw
an adverse inference, the trier of fact is limited by the adverse inference that can
reasonably be drawn from the witness’s failure to testify.
The Court of Special Appeals of Maryland in Long similarly agreed that the Fifth
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Amendment does not preclude adverse inferences where the privilege is claimed by a
party to a civil action. Like the court in Robinson, however, the court in Long limited the
fact-finder to the adverse inference that could reasonably be drawn from the witness’s
failure to testify. In Long, the husband, during the couple’s divorce proceedings, refused
to answer a special master’s questions about tax return filings on grounds of self-
incrimination. The trial court concluded that the husband had voluntarily impoverished
himself and/or failed to disclose the full amount of his income. On appeal, the husband
argued that the trial court could permissibly infer from the invocation of the Fifth
Amendment that he had not filed his tax returns, but that the court could draw no other
inference. The court agreed, and remanded for the trial court to clarify exactly what
evidence it relied on in reaching its conclusion. The court held that although the trial
court was entitled to draw an adverse inference against the husband when he invoked the
Fifth Amendment in response to questions about the status of his tax returns, the trial
court could not “penalize the exercise of the privilege.” See Baxter v. Palmigiano, 425
U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) as cited in Long at 822. The court
continued, “A court may not find voluntary impoverishment based solely on an…exercise
of the Fifth Amendment privilege without supporting evidence. Similarly, a court may
not find…that an individual…sought to ‘keep the full amount of his…income from being
disclosed’ without supporting evidence.” Long, 785 A.2d at 822. Thus, although it
found that the fact-finder may draw an adverse inference against a witness for his or her
failure to testify in a civil proceeding, the court limited the fact-finder to the adverse
inference that could reasonably be drawn from the witness’s failure to testify.
Additionally, the court found that a party’s privileged silence alone is insufficient to
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permit the fact-finder in a civil case to determine liability. See Kramer v. Levitt, 558
A.2d 760 (Md. App. 1989) as cited in Long at 822.
New York law, too, allows for appropriate adverse inferences to be drawn against
a witness because of his or her failure to testify in a civil proceeding. Matter of the
Commissioner of Social Services v. Philip De G., 59 N.Y.2d 137, 450 N.E.2d 681, 463
N.Y.S.2d 761 (1983). In Philip De G., the family court adjudged respondent to be the
father of a child born out of wedlock, and directed him to pay weekly support. The
appellate division reversed, finding the evidence of paternity to be insufficient. In
reversing the appellate division, the court held that the family court could consider, in
assessing the strength of the mother’s evidence, that respondent did not testify, and draw
appropriate inferences from his failure to do so. The court stated, “Filiation proceedings
are civil proceedings, and…in civil proceedings an [adverse] inference may be drawn
against the witness because of his failure to testify.” Philip De G., 450 N.E.2d at 682.
The court went on to say, however, that “the failure of [the witness] to testify does not
permit the trier of fact to speculate about what his testimony might have been nor does it
require an adverse inference. It does, however, allow the trier of fact to draw the
strongest inference against him that the opposing evidence in the record permits.” Philip
De G., 450 N.E.2d at 682. Thus, the court held that although the fact-finder does not
have to draw an adverse inference against the witness, the fact-finder may choose to do
so.
As stated earlier, an adverse inference may be drawn from a parent’s failure to
testify in a Child Protection proceeding. Under Connecticut law, however, the trial court
is required to give the parents prior notice of its intent to draw such an inference. In re
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Samantha C., 847 A.2d 883 (Conn. 2004). In Samantha C., the parents, both of whom
were present at the Termination of Parental Rights proceeding, elected not to testify. The
trial court granted the Commissioner’s petition. In doing so, it expressly drew an adverse
inference against the parents for their failure to testify at the Termination proceeding:
“The court infers from the [parents'] silence that they are continuing their volatile
relationship and are unable to care for Samantha's needs.” Samantha C., 847 A.2d 883.
On appeal, the parents claimed that because the Fifth Amendment forbids an
adverse inference from being drawn against a criminal defendant for electing not to
testify at trial, Connecticut law similarly forbade an adverse inference from being drawn
against them in the Termination proceeding. Id. at 897. The Commissioner argued that
the correct interpretation of Connecticut law was that although a parent had a right to
refuse to testify in a Termination proceeding, the Commissioner may, as in any other civil
proceeding, place a cost on a parent's assertion of that right, namely, allowing the trier of
fact to draw an adverse inference. Id. at 897.
The court agreed with the Commissioner, holding that “the trier of fact ‘is entitled
to draw all fair and reasonable inferences from the facts and circumstances [that] it finds
established by the evidence,’ which consist both of what was said, and what naturally
would have been.” See State v. McDonough, 29 A.2d 582 (Conn. 1942) as cited in
Samantha C., 847 A.2d at 898. In holding this, however, the court made it clear that “an
adverse inference…does not support proof of any particular fact; rather, it may be used
only to weigh facts already in evidence.” See State v. McDonough, 29 A.2d 582 (Conn.
1942) as cited in Samantha C., 847 A.2d at 899.
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The court further held that should a trial court be inclined to draw an adverse
inference against a parent for his or her failure to testify in a Termination proceeding, it is
incumbent upon the court to advise the parent accordingly. Id. at 915. The court relied
on language in Conn. Gen. Prac. Book, 2001, § 34-1(a), which provides: “The judicial
authority shall advise and explain to the parents…their right to silence…prior to
commencement of any proceeding. In this context, ‘advise’ means ‘to…warn,’ as in to
‘advise of the consequences,’ and ‘explain’ means ‘to make…understandable,’ as in to
make ‘intelligible what is not immediately obvious or entirely known.’” Samantha C.,
847 A.2d at 915. Thus, the court interpreted § 34-1(a) to suggest that it is incumbent
upon the trial court, not only to state that parents have a right to silence, but also to
explain, to some extent, the parameters of that right. Id. at 915. As the trial court had
failed to notify the parents of its intent to draw an adverse inference, the court remanded
for a new Termination proceeding.
2. May the court draw adverse inferences from a parent’s refusal to respond to discovery requests in a Neglect or Termination of Parental Rights proceeding?
As previously stated, the Fifth Amendment privilege against self-incrimination
may be properly asserted by parties or witnesses in civil proceedings. See McCarthy v.
Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924) as cited in Kramer at 763. The
privilege protects persons “against being forced to make incriminating disclosures at any
stage of the proceeding if they could not be compelled to make such disclosures as a
witness at trial.” See National Acceptance Co. of America v. Bathalter, 705 F.2d 924 (7th
Cir.1983) as cited in Kramer, 558 A.2d at 763. The privilege therefore applies not only
at trial, but at the discovery stage of civil proceedings as well. See Lefkowitz v. Turley,
414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); United States v. Kordel, 397 U.S. 1,
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90 S.Ct. 763, 25 L.Ed.2d 1 (1970) as cited in Kramer at 763. As stated, a Child
Protection proceeding is civil in nature. See Matter of Commissioner of Social Services
of City of New York [Denise R.], 219 AD2d 715 [2d Dept 1995]; Matter of Randy A., 248
AD2d 838 [3d Dept 1998] as cited in Matter of David E., 176 Misc. 2d 363. Thus, the
privilege applies to witnesses at the discovery stage of any Child Protection proceeding.
Case law suggests that an adverse inference may be drawn from a witness’s
refusal to respond to discovery requests in a civil proceeding. While I have not found
any case law to specifically suggest that an adverse inference may be drawn from a
parent’s refusal to respond to discovery requests in a Child Protection proceeding, case
law in the child protection area suggests on what grounds a court may compel a parent to
comply with discovery requests. It is my assertion that should the court have a proper
basis for not compelling a parent to comply with discovery requests, i.e. a valid Fifth
Amendment invocation, other case law can be used to imply that an adverse inference
may be drawn from the parent’s refusal to respond to the discovery requests (since a
Child Protection proceeding is a civil proceeding, and a parent in a Child Protection
proceeding is a potential witness).
Again, an adverse inference may be drawn from a witness’s refusal to respond to
discovery requests in a civil proceeding. For instance, the court in Kramer ruled that an
adverse inference could be drawn from a witness’s refusal to respond to a request for
admissions. In Kramer, the investor moved for judgment as to the liability of the
individuals, partnership, and corporation in his action against them for breach of contract
and conversion. The trial court granted the motion, ruling that since the individuals,
partnership, and corporation did not admit or deny the requests for admissions presented
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by the investor, those statements were deemed admitted: “The assertion of the privilege
against self-incrimination is available….But it does not protect [Kramer] from the rules
of civil procedure which provide that where an admission is requested and it’s neither
admitted nor denied it shall be taken as admitted.” Kramer, 558 A.2d at 763. In
remanding for a new trial as to damages, the court held that it was not permissible for a
trial court to deem admitted those requests for admissions neither admitted nor denied by
a party; however, the jury could draw an adverse inference from the party’s assertion of
his Fifth Amendment privilege in response to the discovery requests.
The court reasoned that although at the time Kramer was served with the requests
for admissions, he was not faced with a criminal prosecution, he could reasonably fear
that the information gained from his admissions might furnish a basis for charges. The
court further reasoned: “[The rules of civil procedure] clearly state that in responding to
a request for admissions, a party must specify an objection, admit or deny the matter.
[Kramer] did in fact comply with this directive. Specifically, [Kramer] objected to the
requests for admissions and asserted his Fifth Amendment privilege as the reason for his
objection.” Kramer, 558 A.2d at 765.
The court concluded that it would have been constitutionally permissible under
Baxter for the trial judge to allow the requests for admissions to be read to the jury. The
court then should have instructed the jury that Kramer objected to answering these
requests relying on his constitutional privilege against self-incrimination, and that they
may, but need not, draw an adverse inference from Kramer’s assertion of his privilege
that his answers to the requests would have been adverse to his interests. See Cokely v.
Cokely, 469 So.2d 635 (Ala. Civ. App. 1985); Chaffin, Inc. v. Wallain, 689 P.2d 684
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(Colo. App.1984); Asplin v. Mueller, 687 P.2d 1329 (Colo. App.1984) as cited in Kramer
at 766. Thus, the court concluded that although the jury does not have to draw an adverse
inference from the party’s invocation of the Fifth Amendment privilege, it may choose to
do so.
As stated earlier, a court may compel a parent to comply with discovery requests
in a Child Protection proceeding. Under New York law, the court, in deciding on a
motion for a protective order by the parents, must weigh the party’s need for the
discovery to assist in the preparation of the case and any potential harm to the child from
the discovery. Matter of David E., 176 Misc. 2d 363. In Matter of David E., the county
filed a demand for interrogatories and a request for admissions in the Child Neglect
proceeding. The parents filed for a protective order as to both. New York Family Court
Act article 10 provides that unless otherwise proscribed by article 10, the provisions of
New York Civil Practice Law and Rules article 31 apply to proceedings under article 10.
Matter of David E., 176 Misc. 2d 363. Thus, New York Civil Practice Law and Rules
apply to Child Neglect proceedings. Relying on New York Civil Practice Law and Rules
article 31, which provides that “there shall be full disclosure of all matter material and
necessary in the prosecution or defense of an action…by…a party,” Matter of David E.,
176 Misc. 2d at 365, the court denied a protective order as to the demand for
interrogatories, holding that the information sought in the interrogatories was not
unnecessary, improper, unreasonable, or prejudicial to the parents.
As for the request for admissions, the court granted a protective order as to certain
statements, concluding that admissions to these statements would amount to admissions
of material issues or ultimate or conclusory facts to be proven at trial, and thus the
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statements were not proper for a request for admissions. Id. at 365. The court reasoned
that the purpose of a notice to admit is to “eliminate from the issues in litigation matters
which will not really be in dispute at the trial.” See Falkowitz v. Kings Highway Hosp.,
43 AD2d 696 [2d Dept 1973] as cited in Matter of David E., 176 Misc. 2d 363.
However, the court continued, a notice to admit cannot be used “to seek admissions of
material issues or ultimate or conclusory facts.” See Villa v. New York City Hous. Auth.,
107 AD2d 619 [1st Dept 1985] as cited in Matter of David E., 176 Misc. 2d 363. Thus,
under certain circumstances, a court may compel a parent to comply with discovery
requests in a Child Protection proceeding.
The court in Matter of Tyler S., 192 Misc. 2d 728, 748 N.Y.S.2d 215 (2002),
similarly ruled that a parent in a Child Protection proceeding may be compelled to
comply with discovery requests. As stated above, New York Family Court Act article 10
applies New York Civil Practice Law and Rules to New York Family Court Act article
10 proceedings unless otherwise proscribed by New York Family Court Act article 10.
Id. at 731. Under New York Civil Practice Law and Rules, a party to a civil action whose
mental condition is sufficiently in controversy may be compelled to submit to a mental
health examination upon motion of a party opponent. See Matter of R./G. Children, 165
Misc 2d 518 [Fam Ct, Kings County 1994] as cited in Matter of Tyler S. at 731. Thus, a
party to a Neglect proceeding may be compelled to submit to a mental health
examination, unless otherwise proscribed by New York Family Court Act article 10. In
Matter of Tyler S., the Administration for Children’s Services sought to have the mother
evaluated to determine whether she in fact suffered from an untreated mental illness that
impaired her ability to care for her child. The court ordered the mother to submit to a
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mental health examination, holding that New York Family Court Act §1038-a, the
provision of article 10 at issue, did not preclude the court from ordering the mother be
examined by a psychiatrist for the purpose of evaluating the mother’s mental condition.
Id. at 737.
New York Family Court Act article 10 gives the Family Court the authority to
order discovery in New York Family Court article 10 proceedings to be coextensive with
that possessed by courts in any other proceedings governed by New York Civil Practice
Law and Rules, except where specifically limited by New York Family Court Act article
10. Id. at 735. The court reasoned that although New York Family Court Act §1038-a
proscribes discovery of nontestimonial evidence in New York Family Court Act article
10 proceedings—that is, physical evidence compelled from the person—the statute is
silent as to testimonial evidence. Id. at 735. The court gave a possible explanation for
the proscription of nontestimonial evidence in New York Family Court article 10
proceedings:
New York Family Court Act § 1038-a recognizes that when the government seeks to discover evidence by means that intrude upon a person's bodily integrity, the government action implicates the Fourth Amendment prohibition against unreasonable searches and seizures, and should be justified by probable cause that the evidence is reasonably related to establishing the allegations in the petition. The legislature imposes this higher burden on parties in a New York Family Court Act article 10 proceeding, only as to the discovery of "nontestimonial" evidence obtained from a [parent’s] physical body. Matter of Tyler S., 192 Misc. 2d at 735.
Concluding that there was no indication in the language of the statute of any
legislative intent to circumscribe discovery of testimonial evidence from a parent in a
New York Family Court Act article 10 proceeding, the court held that testimonial
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evidence, i.e. evidence obtained from a witness’s submission to a mental health
examination, may be compelled in a New York Family Court Act article 10 proceeding to
the same extent as in any other civil proceeding, unless the statute may be read to imply a
silent proscription. Id. at 735. The court did not indicate one way or another whether the
statute should be read to imply such a proscription.
Conclusion
1. The Fifth Amendment privilege against self-incrimination is available to a parent
in a Child Protection proceeding. Under In re J.W., a parent must invoke the privilege as
to the specific question to which her answer would incriminate her, and the court must
then resolve the Fifth Amendment claim as to that specific question. Under Baxter, and
other case law, 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. Moreover, an adverse inference may be drawn from a parent’s failure to testify in
a Child Protection proceeding. Under In re Samantha C., however, the trial court must
give the parent prior notice of its intent to draw an adverse inference from the parent’s
failure to testify.
2. The Fifth Amendment privilege against self-incrimination is available to
witnesses not only at trial, but at the discovery stage of civil proceedings as well. Under
Kramer, an adverse inference may be drawn from a witness’s refusal to respond to
discovery requests in a civil proceeding. Should the court have a proper basis for not
compelling a parent to comply with discovery requests in a Child Protection proceeding,
i.e. a valid Fifth Amendment invocation, this, and other case law, can be used to imply
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that an adverse inference may be drawn from the parent’s refusal to respond to the
discovery requests.
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