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Fifth Amendment Privilege in Civil Proceedings
953 So.2d 374
EX PARTE RAWLS
EX PARTE RAWLS
953 So.2d 374 (AL 2006)
Ex parte Bryan C. RAWLS.
(In re Teresa Lynn Rawls
v.
Bryan C. Rawls).
1041495.
Supreme Court of Alabama.
September 1, 2006
375
This Page Contains Headnotes.
Appeal from the Baldwin Circuit Court, No. DR-04-847, Carmen E.
Bosch, J.
376
Tanya Hallford Roseony, Foley; and William L. Pfeifer, Jr.,
Foley, for petitioner.
Stephen P. Johnson of Brackin, McGriff & Johnson, P.C.,
Foley, for respondent.
BOLIN, Justice.
Bryan C. Rawls petitions this Court for a
writ of mandamus directing the Baldwin Circuit Court to grant
his motion to stay his divorce proceedings pending a resolution
of criminal charges filed against him by his wife Teresa Lynn
Rawls; Bryan argues that allowing the divorce proceedings to
continue threatens his Fifth Amendment right against
self-incrimination in the criminal proceedings.
Facts and Procedural History
On August 31, 2004, Teresa sued Bryan for
divorce. In her complaint, she alleged that Bryan had been
physically and verbally abusive to her on several occasions
during their marriage. Also, on August 31, 2004, Teresa filed a
motion for a temporary restraining order; the motion also
sought to retain possession of the marital home, and
stated:
"During the course of this marriage [Bryan] has been physically
abusive to [Teresa] to-wit: leading to a conviction in the City
of Orange Beach for domestic violence against him and he has
also otherwise exhibited a pattern of being physically and
mentally abusive to [Teresa].
"[Bryan] is a habitual drunk and as such has mood swings of
violence against [Teresa]. . . . [I]t is necessary that [Bryan]
be restrained by this Court from hurting, harassing,
threatening, intimidating, contacting in person, contacting by
telephone, or having any contact
377
with [Teresa] until the final hearing before this Court."
(Teresa's reply brief, ex. 2.)
On October 27, 2004, Bryan was arrested
after crashing his truck into the garage attached to the
marital home, causing damage to the marital home and to
Teresa's automobile, which was parked in the garage. (Teresa's
brief at 1.) On that same day, Teresa filed a petition for
protection from abuse against Bryan based on that incident and
what she alleged were his continual stalking and harassment.
The trial court entered a protective order, and on November 3,
2004, Bryan was arrested for violating the protective order
after he had made several telephone calls to Teresa.
On December 16, 2004, Bryan was indicted
for criminal mischief in the first degree, a violation of §
13A-7-21, Ala. Code 1975; criminal trespass in the first
degree, a violation of § 13A-7-2, Ala.Code 1975; and stalking,
a violation of § 13A-6-90, Ala.Code 1975. The criminal-mischief
and criminal trespass charges stem from the October 27, 2004,
incident; the stalking charge is apparently based on more than
just this one incident. He was arrested for these charges on
April 8, 2005.
The trial in the parties' divorce
proceeding was eventually scheduled for April 15, 2005. On
April 14, 2005,(fn1) Bryan filed a motion to stay the divorce
proceedings asserting that a civil trial would violate his
privilege against self-incrimination under the Fifth Amendment
of the United States Constitution and Article I, § 6, Ala.
Const. 1901, in any trial on the criminal charges. The trial
judge "denied the request for a stay, holding that it would be
`unconscionable' to stay the divorce proceedings until the
criminal cases could be resolved." (Bryan's brief at 4.)
Bryan filed a petition for a writ of
mandamus with the Court of Civil Appeals; that court denied his
petition without an opinion. Ex parte Rawls (No. 2040634, June
21, 2005), 945 So.2d 504 (Ala.Civ.App. 2005) (table). He then
filed a petition for a writ of mandamus in this Court.
Standard of Review
"A writ of mandamus is an extraordinary remedy that is
available when a trial court has exceeded its discretion. Ex
parte Fidelity Bank,893 So.2d 1116, 1119 (Ala.2004). A writ of
mandamus is `appropriate when the petitioner can show (1) a
clear legal right to the order sought; (2) an imperative duty
upon the respondent to perform, accompanied by a refusal to do
so; (3) the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of the court.' Ex parte BOC
Group, Inc.,823 So.2d 1270, 1272 (Ala.2001)."
Ex parte Antonucci,917 So.2d 825, 830
(Ala.2005). "Mandamus will be granted only where an abuse of
discretion is shown." Ex parte McMahan,507 So.2d 492, 493
(Ala.1987).
Discussion
Bryan argues that his Fifth Amendment
right against self-incrimination is threatened if the civil
divorce proceeding goes forward, and that, therefore, the trial
judge exceeded her discretion when she denied his motion to
stay the civil proceedings. The Fifth Amendment to the United
States Constitution provides, in pertinent
378
part, that a person shall not "be compelled in any criminal
case to be a witness against himself."(fn2) This Court has held
"that despite the difference in language the Alabama privilege
against self-incrimination offers the same guarantee as that
contained in the Federal Constitution." Hill v. State,366 So.2d
318, 322 (Ala.1979). Neither party, however, addresses the
issues in terms of Art. I, § 6; therefore, we confine our
discussion to the Fifth Amendment right against
self-incrimination.
This Court stated in Ex parte Baugh,530
So.2d 238, 241 (Ala.1988):
"Under the Fifth Amendment to the Constitution of the United
States, `no person . . . shall be compelled in any criminal
case to be a witness against himself.' The privilege against
self-incrimination must be liberally construed in favor of the
accused or the witness, Hoffman v. United States,341 U.S. 479,
71 S.Ct. 814, 95 L.Ed. 1118 (1951), and is applicable not only
to federal proceedings but also to state proceedings, Malloy v.
Hogan,378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). `The
fact that the privilege is raised in a civil proceeding rather
than a criminal prosecution does not deprive a party of its
protection.' Wehling v. Columbia Broadcasting System,608 F.2d
1084 (5th Cir. 1979), citing with approval Lefkowitz v.
Cunningham,431 U.S. 801, 9[7] S.Ct. 2132, 53 L.Ed.2d 1 (1977);
McCarthy v. Arndstein,266 U.S. 34, 45 S.Ct. 16, 69 L.Ed.[] 158
(1924)."
The United States Constitution, however,
does not mandate that under all circumstances the civil
proceedings in which the privilege against self-incrimination
is asserted be stayed; whether to stay those proceedings is
within the trial court's discretion.
"While the Constitution does not require a stay of civil
proceedings pending the outcome of potential criminal
proceedings, a court has the discretion to postpone civil
discovery when `justice requires' that it do so `to protect a
party or persons from annoyance, embarrassment, oppression, or
undue burden or expense.' Rule 26(c), Ala. R. Civ. P."
Ex parte Coastal Training Inst.,583 So.2d
979, 980-81 (Ala.1991).
In the present case, three issues must be
addressed to determine if a stay in the civil divorce
proceedings based on Fifth Amendment concerns in a pending
criminal action is warranted: (1) whether the civil proceeding
and the criminal proceeding are parallel, see Ex parte
Weems,711 So.2d 1011, 1013 (Ala.1998); (2) whether the moving
party's Fifth Amendment protection against self-incrimination
will be threatened if the civil proceeding is not stayed, see
Ex parte Windom,763 So.2d 946, 950 (Ala.2000); and (3) whether
the requirements of the balancing test set out in Ex parte
Baugh, 530 So.2d at 244, and Ex parte Ebbers,871 So.2d 776, 789
(Ala. 2003), are met.
I. Whether the civil proceeding and the
criminal proceeding are parallel.
In Ex parte Weems, this Court held that
the trial judge did not err in denying the motion to stay
discovery in a civil action because the civil and criminal
actions were not parallel proceedings. In Weems, the ex-wife
hired a private investigator to determine if her telephone line
had been tapped after she was awarded the marital home in the
divorce settlement. While the investigator was on the property,
the ex-husband came onto the property and shot the investigator
in the arm; the investigator
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then shot the ex-husband. The ex-husband was indicted for
assault with intent to murder as a result of shooting the
investigator. The ex-husband then sued his ex-wife, alleging
negligent hiring and supervision of the private investigator.
The trial court refused to grant the ex-husband a stay in his
civil proceeding because it found that the criminal action
involved a determination as to whether the ex-husband shot the
investigator with intent to murder, while the civil action
involved a determination as to whether the ex-wife was
negligent in her hiring and supervising of the investigator.
Because these were not parallel proceedings involving the same
act, the Weems Court denied the ex-husband's petition for a
writ of mandamus.
This Court has held that the moving party
is entitled to the requested stay in the civil proceedings when
the civil case and the criminal case have been parallel
proceedings. In Ex parte Oliver,864 So.2d 1064 (Ala.2003), the
defendant, Oliver, moved for a stay of the civil action arising
out of an automobile accident based on criminal charges arising
from the accident. The trial court held that the motion for a
stay was moot because no indictment had been issued against
Oliver after three grand juries had convened and the plaintiffs
had modified their discovery requests to protect Oliver against
self-incrimination. Oliver filed a petition for a writ of
mandamus in this Court. This Court held that Oliver failed to
show that he had a clear legal right to the stay or that the
trial court had an "imperative duty" to grant the relief
requested. However, the Court noted that subsequent to the
filing of the petition for a writ of mandamus, Oliver had been
indicted by a grand jury. Although this Court denied the
petition, it stated:
"In light of the return of the indictment against Oliver and
the need to guarantee Oliver's Fifth Amendment privilege, our
caselaw, see Ex parte White,551 So.2d 923 (Ala.1989), and its
progeny, requires that a stay of the civil proceedings be
issued to guarantee Oliver's Fifth Amendment privilege. Oliver,
however, has not presented this change in circumstance -
the return of the indictment, which creates an imperative duty
for the trial court to stay the civil proceedings - to
the trial court. This Court will not direct a court to take
some action it has not previously refused to take."
864 So.2d at 1067. See also Ex parte
Coastal Training Inst., supra (writ issued to stay civil
proceedings where the civil and criminal proceedings arose out
of vocational school's mishandling of students' grant funds);
and Ex parte White,551 So.2d 923 (Ala.1989)(writ issued to stay
civil proceedings where the civil and criminal proceedings
arose out of a collision in which the defendant drove his
vehicle into the plaintiffs' house).
In McCarthy v. Arndstein,266 U.S. 34, 40,
45 S.Ct. 16, 69 L.Ed. 158 (1924), Justice Brandeis stated:
"The government insists, broadly, that the constitutional
privilege against self-incrimination does not apply in any
civil proceeding. The contrary must be accepted as settled. The
privilege is not ordinarily dependent upon the nature of the
proceeding in which the testimony is sought or is to be used.
It applies alike to civil and criminal proceedings, wherever
the answer might tend to subject to criminal responsibility him
who gives it. The privilege protects a mere witness as fully as
it does one who is also a party defendant."
The Fifth Amendment privilege
"not only protects the individual against being involuntarily
called as a witness against himself in a criminal
prosecution
380
but also privileges him not to answer official questions put to
him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future
criminal proceedings."
Lefkowitz v. Turley,414 U.S. 70, 77, 94
S.Ct. 316, 38 L.Ed.2d 274 (1973). The Fifth Amendment privilege
can be raised "in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory."
Kastigar v. United States,406 U.S. 441, 444, 92 S.Ct. 1653, 32
L.Ed.2d 212 (1972) (footnote omitted).
The party requesting a stay of the civil
proceeding does not actually have to be indicted. Ex parte
Coastal Training, 583 So.2d at 981. "A party is entitled to
assert the Fifth Amendment privilege against self-incrimination
although no criminal charges have been instituted, and even
where the risk of prosecution is remote, so long as the party
reasonably apprehends a risk of self-incrimination. A party
need not be indicted to properly claim the Fifth Amendment
privilege." Ex parte Ebbers, 871 So.2d at 787. See also Ex
parte Antonucci, 917 So.2d at 830 (chief executive officer of
insolvent corporation was entitled to stay of civil action
brought by the insolvent corporation where both the civil
action and the criminal investigation focused on the same
conduct).
Bryan is charged here with criminal
mischief, criminal trespass, and stalking. The
criminal-mischief and criminal-trespass charges stem from the
incident on October 27, 2004, when he drove his truck into the
garage and severely damaged the marital home and Teresa's car.
This incident occurred after Teresa filed for divorce.
Teresa's attorney stated at the hearing on
Bryan's motion to stay the divorce proceedings that if those
proceedings went forward he would not ask Bryan any questions
concerning incidents that occurred after Teresa had filed for
divorce. Therefore, concerning the charges of criminal mischief
and criminal trespass, there would be no overlap in the
criminal and civil cases. The civil divorce proceeding and the
criminal proceedings resulting from the criminal-mischief and
criminal-trespass charges are thus not parallel
proceedings.
However, the stalking charge presents a
different situation. Section 13A-6-90, Ala.Code 1975, provides:
"A person who intentionally and repeatedly follows or harasses
another person and who makes a credible threat, either
expressed or implied, with the intent to place that person in
reasonable fear of death or serious bodily harm is guilty of
the crime of stalking." A prosecutor must thus prove that a
defendant repeatedly followed or harassed the victim to sustain
a conviction for stalking.
Bryan argues that because, in order to
prove guilt of stalking, the State must prove repeated actions,
the criminal proceeding involving the stalking charge and the
divorce proceeding are parallel proceedings. This Court agrees.
To prove the stalking charge, the prosecution will possibly
need to avail itself of evidence of alleged incidents and
alleged abuse by Bryan that occurred before Teresa filed for
divorce. Because that criminal proceeding and the divorce
proceeding have some overlapping acts, they must be considered
parallel proceedings. Therefore, Bryan's motion for a stay
cannot be denied on the grounds that these are not parallel
proceedings.
The dissent argues that the criminal
proceeding involving the stalking charge and the divorce
proceeding may or may not be parallel. However, a divorce
action
381
in which there are allegations of abuse, harassment, threats,
and intimidation and a felony stalking charge could not be more
parallel. As already mentioned, to prove Bryan was guilty of
stalking Teresa, the State must prove that he was
"intentionally and repeatedly follow[ing] or harass[ing]"
her.
Although the State may be planning to
introduce as evidence the event that occurred on October 27,
2004, to help prove the stalking charge, that single instance
will not be enough to prove repeated actions by Bryan. The
repeated actions the State will need to prove its stalking case
are those that occurred throughout the marriage, the occasions
of "physical and verbal abus[e]" on which Teresa based her
complaint for divorce. (Teresa's brief, ex. B.)
Even if, as the dissent hypothesizes, the
State planned to use only events occurring after Teresa filed
for divorce to prove its stalking case, there is nothing
barring the State, after the civil proceedings have begun, from
using events that occurred before Teresa filed for divorce to
prove that charge. Therefore, because we cannot base our
decision on what the State may plan to do hypothetically, we
conclude that, based on the evidence needed to prove the
stalking charge, these are parallel proceedings.
II. Whether Bryan's Fifth Amendment right
against self-incrimination is threatened by the civil
proceedings.
The second issue is whether Bryan's Fifth
Amendment right against self-incrimination is threatened by the
civil proceeding. In Ex parte Windom, supra, this Court held
that the moving party's Fifth Amendment right was not
threatened by a civil proceeding; therefore, the Court denied
his petition for a writ of mandamus. In Windom, Windom, the
moving party, was not the criminal defendant. It was Windom,
however, who made the motion to stay the civil case pending the
outcome of the criminal trial against the defendant. The trial
court refused to grant Windom's motion for a stay. This Court
held that Windom's Fifth Amendment right against
self-incrimination was not implicated by these proceedings and
denied his petition for a writ of mandamus.
To sustain a moving party's Fifth
Amendment right against self-incrimination, "`it need only be
evident from the implications of the question, in the setting
in which it is asked, that a responsive answer to the question
or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result.'" Baugh,
530 So.2d at 241 (quoting Hoffman v. United States,341 U.S.
479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)).
This Court has found a moving party's
Fifth Amendment right against self-incrimination threatened by
the discovery process in a civil proceeding. In Ex parte
Coastal Training, supra, this Court discussed the differing
nature of discovery in civil and criminal proceedings. The
scope of civil discovery is broad, requiring almost complete
disclosure; criminal discovery, on the other hand, is much more
restricted. Allowing civil discovery to proceed while a
criminal case is pending may allow the prosecution in the
criminal case to use the broad scope of civil discovery to its
advantage. Coastal Training.
This Court has also found that a moving
party's Fifth Amendment right against self-incrimination is
threatened when a court requires the party to participate in a
deposition or a trial, allowing the party to remain quiet only
for specific questions that may incriminate him or her. In
Coastal Training, this Court discussed the dangers of allowing
a defendant to remain
382
quiet only for specific questions, including the possibility of
a criminal investigator's being "planted" at the deposition in
the civil proceeding, the possibility that the defendant could
reveal the weak points of the case to a prosecutor by what he
or she refuses to answer, and the opportunity for a prosecutor
to conduct a point-by-point review of the case to find a "`link
in the chain of evidence'" that would lead to the defendant's
conviction. 583 So.2d at 981 (quoting Hoffman v. United States,
341 U.S. at 486, 71 S.Ct. 814). Because of these dangers, it
may be necessary to stay the civil proceedings in order for the
defendant's Fifth Amendment rights to be protected.
Bryan argues that "the allegations of the
criminal case are so interrelated with this civil case that
[Bryan's] testimony will be akin to walking through a field of
land mines - each question and answer a potential risk for use
against him at a criminal proceeding." (Bryan's brief at 11.)
Bryan argues that because of the overlap in the claims of abuse
before the filing of the divorce complaint and the element of a
pattern of threats or abuse the prosecutor must prove to prove
the stalking charge, his Fifth Amendment rights are threatened
by requiring him to continue with the divorce proceeding. We
agree that because of the stalking charge (see Part I of this
opinion), the dangers discussed in Coastal Training exist here
if Bryan is required to continue with the civil divorce
proceeding.
The dissent argues that because discovery
in the divorce action is completed and Bryan has not had to
answer an incriminating question,(fn3) Bryan is unable to argue
that he will have to incriminate himself at the trial in the
divorce action. This argument suggests that at the trial of the
divorce action nothing will be asked of Bryan that was not
asked during the discovery phase of the divorce proceeding.
This, however, is unlikely. Thus, even if discovery has been
completed and even if Bryan has not yet been asked an
incriminating question, because of the overlap in these
proceedings, he will likely be asked at trial questions that
would cause him to incriminate himself. His Fifth Amendment
right is clearly threatened.
The dissent also argues that the language
previously quoted from Coastal Training, 583 So.2d at 981, is
not a valid statement of the law. This Court stated in Coastal
Training:
"`The broad scope of civil discovery may present to both the
prosecution, and at times the criminal defendant, an
irresistible temptation to use that discovery to one's
advantage in a criminal case.' Afro-Lecon, Inc. v. United
States,820 F.2d 1198, 1203 (Fed.Cir.1987). In Afro-Lecon, the
court pointed out some of the dangers presented by this
situation:
"`Such unconstitutional uses may begin with the surreptitious
planting of criminal investigators in civil depositions . . .
and end with passive abuses, such as when the civil party, who
asserts
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fifth amendment rights, is compelled to refuse to answer
questions individually, revealing his weak points to the
criminal prosecutor. This point-by-point review of the civil
case may lead to a "link in the chain of evidence" that
unconstitutionally contributes to the defendant's conviction.
Hoffman v. United States,341 U.S. 479, 486 [71 S.Ct. 814, 818,
95 L.Ed. 1118] (1951).'"
It may be "unclear" to the author of the
dissent why this Court in Coastal Training adopted the language
from Afro-Lecon, Inc. v. United States,820 F.2d 1198
(Fed.Cir.1987), a federal Court of Appeals case. 953 So.2d at
391. However, this Court has reaffirmed Coastal Training's
adoption of the federal circuit's approach as the law in
Alabama on four other occasions.
In Ex parte Ebbers, supra, this Court
created an exhaustive list of 13 principles that have emerged
from Alabama caselaw concerning the stay of a civil proceeding
pending the outcome of a criminal case. One of those principles
(no. 11) states:
"A civil party's Fifth Amendment right against
self-incrimination cannot be adequately protected by requiring
him simply to assert his right to remain silent when asked
specific questions during a civil deposition; such an approach
construes the Fifth Amendment too narrowly. The dangers in such
an approach have been identified as including the possibility
of a criminal investigator's being `planted' at the deposition,
the revealing by the deponent of his weak points by his
selection of which questions he refuses to answer, and the
opportunity presented to a prosecutor of deriving, by a
point-by-point review of the civil case, a `link in the chain
of evidence' that would unconstitutionally contribute to the
defendant's conviction in the criminal case."
871 So.2d at 788.
Likewise, in Ex parte Williams,775 So.2d
146, 148 (Ala.2000), Ex parte Price,707 So.2d 1105, 1107
(Ala.1997), and Ex parte Hill,674 So.2d 530, 534 (Ala.1996),
this Court also discussed the dangers of requiring a party to
continue with a civil trial while criminal charges were pending
against the party. In Williams and Price the Court held that
these dangers mandated a stay in the civil proceedings in those
cases. If, as the dissent claims, this Court was wrong in its
analysis in Coastal Training, then Ebbers, Williams, Price, and
Hill must have also been "incorrect statement[s] of the law."
953 So.2d at 391.
Ironically, the dissent quotes Afro-Lecon,
the case decided by the federal Court of Appeals, with which
the dissent so strongly disagrees, in support of a proposition
in its opinion. 953 So.2d at 391. Furthermore, some of the
language this Court quoted in Coastal Training from Afro-Lecon
was in turn taken from Hoffman v. United States, a United
States Supreme Court case. In Hoffman, the United States
Supreme Court stated: "The privilege afforded not only extends
to answers that would in themselves support a conviction under
a federal criminal statute but likewise embraces those which
would furnish a link in the chain of evidence needed to
prosecute the claimant for a federal crime." 341 U.S. at 486,
71 S.Ct. 814 (emphasis added).
The dissent also discusses the "compelled
to refuse to answer" language from Afro-Lecon and simply
discounts it as being contradictory in terms. 953 So.2d at 391.
However, this phrase, when read in the context of the language
in Afro-Lecon, is not as confusing as the dissent makes it out
to be. The phrase simply refers to a party's being forced to
participate in a civil
384
proceeding and being allowed to plead the Fifth Amendment in
response to certain questions; therefore, the party is being
compelled to refuse to answer. This is exactly the situation in
which Bryan would be placed were the stay to be denied. This is
precisely the situation in which all the dangers discussed
previously may arise.
In addition, the dissent cites Baxter v.
Palmigiano,425 U.S. 308, 316, 96 S.Ct. 1551, 47 L.Ed.2d 810
(1976), for the proposition that the Fifth Amendment "does not
protect the witness from being asked the questions in the first
place, or (in a civil action) from the consequences of a
refusal to answer." 953 So.2d at 391. However, Baxter is
concerned with the type of inferences that can be drawn from a
party's invocation of the Fifth Amendment, not whether the
party should be awarded a stay in a parallel civil proceeding.
Furthermore, one of the statements the dissent quotes from
Baxter is "`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.'" 953 So.2d at 391. Neither this quotation, nor the
entire United States Supreme Court opinion in Baxter stand for
the proposition that the dissent cites it for - that the Fifth
Amendment "does not protect the witness from being asked the
questions in the first place." 953 So.2d at 391.
Further, the quotation in the dissent from
Williams v. Florida,399 U.S. 78, 84, 90 S.Ct. 1893, 26 L.Ed.2d
446 (1970), is also inapposite. In Williams, the defendant
argued that he was being forced to violate his Fifth Amendment
protection by being required to provide the name and address of
the person he claimed was his alibi, thus allowing the State to
depose the alibi witness. The Court in Williams stated:
"The defendant in a criminal trial is frequently forced to
testify himself and to call other witnesses in an effort to
reduce the risk of conviction. When he presents his witnesses,
he must reveal their identity and submit them to
cross-examination which in itself may prove incriminating or
which may furnish the State with leads to incriminating
rebuttal evidence. That the Defendant faces such a dilemma
demanding a choice between complete silence and presenting a
defense has never been thought an invasion of the privilege
against compelled self-incrimination."
399 U.S. at 83-84, 90 S.Ct. 1893 (portion
quoted in the dissent emphasized). Thus, other than dealing
with the broad concept of the privilege against
self-incrimination, this quotation has no bearing on the issue
involved in this case.
If this Court were to deny Bryan's
petition and require the civil divorce proceedings to continue,
allowing Bryan to invoke his Fifth Amendment privilege and
refuse to answer certain questions that he deems are
incriminating, Bryan will be subjected to all of the dangers of
self-incrimination that are discussed in the cases mentioned
earlier. Therefore, it is the opinion of this Court that
Bryan's Fifth Amendment right against self-incrimination in the
criminal case against him is threatened by the civil action
against him.
III. Whether the balancing test weighs in
favor of Bryan.
The third issue is whether the balancing
test of Ex parte Baugh, 530 So.2d at 243-44, weighs in favor of
Bryan, as the party moving for the stay. To justify a stay of a
civil proceeding pending resolution of a criminal proceeding,
the Fifth Amendment right of the party requesting the stay must
outweigh the potential
385
prejudice to the other party of granting the stay.
This Court first used the balancing test
in Ex parte Baugh. This Court, in deciding whether to grant
Baugh's petition for a writ of mandamus applied the balancing
test articulated in Afro-Lecon, 820 F.2d at 1202. The Court
balanced two interests - Baugh's interest in postponement
of the civil case, on the one hand, and the possible prejudice
that might result to the party opposing the motion in delaying
the civil case, on the other - and granted Baugh's
petition.
More recently, this Court in Ex parte
Ebbers, supra, elaborated on that balancing test. In Ebbers,
this Court undertook to catalogue a list of factors identified
in federal cases as factors that might be considered in
applying the balancing test. The factors included, but are not
limited to:
"1. The interest of the plaintiff in proceeding expeditiously
with the civil litigation, or any particular aspect of it, and
the potential prejudice to the plaintiff of a delay in the
progress of that litigation.
"2. The private interest of the defendant and the burden that
any particular aspect of the proceedings may impose on the
defendant.
"3. The extent to which the defendant's Fifth Amendment rights
are implicated/the extent to which the issues in the criminal
case overlap those in the civil case.
"4. The convenience of the court in the management of its
cases, and the efficient use of judicial resources.
"5. The interest of persons not parties to the civil
litigation.
"6. The interest of the public in the pending civil and
criminal litigation.
"7. The status of the criminal case, including whether the
party moving for the stay has been indicted. . . .
"8. The timing of the motion to stay."
871 So.2d at 789-90 (citations to federal
cases omitted). After weighing these factors, this Court
granted the petition for the writ of mandamus in Ebbers.
The parties in this case argued the
applicability of some of the factors in Ebbers, and some of
those factors are relevant to our analysis. Bryan argues that
his Fifth Amendment right against self-incrimination outweighs
Teresa's interest in finalizing their divorce (factor 1). In
looking at this factor, the Court should consider the potential
prejudice that may result to Teresa as a result of a stay in
the divorce proceeding. According to decisions of this Court,
the important aspect of this factor is whether Teresa's civil
action against Bryan will be damaged by the stay; in other
words, will her case against Bryan be weakened by the passage
of time because of lost evidence or witnesses? See Ex parte
Antonucci, 917 So.2d at 831. In her brief, Teresa does not
argue that her case will be prejudiced by a stay. She has
presented no evidence indicating, and she has not argued, that
her case will be prejudiced or that there is a threat that she
will lose evidence or witnesses if the stay is granted.
Teresa argues that she "is attempting to
move on with her life after years of abuse. Allowing [Bryan] to
stay the divorce would literally be adding insult to injury and
allowing him to continue to abuse [Teresa] now with the legal
system instead of his hands." (Teresa's brief at 12.) Although
this Court acknowledges Teresa's difficult situation, her
interest must be weighed against Bryan's Fifth Amendment right.
Although Teresa has a strong interest in the completion of the
divorce proceedings,
386
because there is no evidence indicating that her case will be
at all prejudiced or damaged by the issuance of a stay, Bryan's
Fifth Amendment right must prevail over her interest.
The parties also discussed the efficiency
of judicial resources (factor 4). Ebbers, 871 So.2d at 790.
Teresa argues:
"The [divorce] case has been continued from the original trial
setting of November 9, 2004 to-date based on the actions of
[Bryan]. (Exhibit `A'). This case has continued to occupy space
on the divorce docket of the trial court and has encumbered
judicial economy, wasted resources and continues to do so."
(Teresa's brief at 15.) Although the
efficient use of judicial resources is an important factor,
this Court in Ex parte White, 551 So.2d at 924, stated: "[W]hen
state concerns for judicial economy conflict with federal
constitutional rights, the state concerns must give way.
Otherwise, individuals would be forced to choose between a
constitutional right and a potential loss in a state matter.
Such a choice turns a right into an option." Bryan's Fifth
Amendment right against self-incrimination outweighs the
State's interest in efficient use of judicial resources.
Finally, Teresa argues that "the timing of
this Motion to Stay is merely reflective of the continuing
abuse by [Bryan]. [Bryan] filed this Motion to Stay the day
before his trial in an effort to delay and harass [Teresa] even
further." (Teresa's brief at 15.) Teresa never argues that
Bryan should be considered to have waived his Fifth Amendment
right; she never argues, as the respondent did in Ex parte
White, that Bryan did anything that might constitute a waiver.
See Ex parte White, 551 So.2d at 924 (respondent argued to no
avail that the petitioner had waived the right against
self-incrimination by failing to respond or object to
interrogatories in a timely manner). As stated earlier, Bryan's
request for a stay was filed only six days after his arrest on
the criminal charges. Teresa's argument that the timing of
Bryan's request for a stay was less than ideal, while
understandable, does not give this Court cause to favor her
interests above Bryan's Fifth Amendment right.
The dissent attempts to paint this
balancing test as weighing Teresa's interest in the finality of
the divorce proceedings against Bryan's interest in the divorce
proceeding. However, the balancing test actually weighs Bryan's
Fifth Amendment protection against Teresa's interest in a quick
resolution of the divorce proceeding. For the reasons stated,
Bryan's Fifth Amendment right against self-incrimination
outweighs the other factors to be considered in the balancing
test, including any potential prejudice to Teresa. Therefore,
because the divorce proceedings and the State's criminal
proceeding based on the stalking charge are parallel
proceedings that threaten Bryan's Fifth Amendment right, the
trial court erred in denying his motion for a stay in the
divorce proceedings.
It is important to note, however, that the
"trial court is not precluded from subsequently entertaining a
motion to dissolve the stay, if circumstances have changed in
the interim in such a way as to render the stay no longer
appropriate." Ebbers, 871 So.2d at 788-89. Further, even though
Teresa cannot obtain complete relief until the stalking charge,
the only parallel criminal proceeding, against Bryan is
adjudicated, we note that the trial court may allow Teresa an
interlocutory order granting a divorce, reserving the division
of assets until after the conclusion of Bryan's criminal
proceedings. This would allow the trial court to hold the
proceedings necessary to dissolve the marriage and also would
allow Teresa to return to using her former
387
name. In accordance with the above, the trial court would be
able to hear testimony as to the ground of incompatibility
alleged in Teresa's complaint even though the trial court would
be prohibited from hearing any evidence that may be relevant to
a stalking charge. The trial court could then specifically
reserve the remaining issues, including the division of marital
assets, until after the criminal proceedings have been
completed. It should be further noted that neither party would
be able to remarry until 60 days after the final judgment of
divorce is entered. See Ala.Code 1975, § 30-2-10.
Conclusion
The civil divorce proceeding and the
criminal proceeding based on the stalking charge are parallel
proceedings, and Bryan's Fifth Amendment protection against
self-incrimination in the criminal proceeding is threatened if
the divorce proceeding is not stayed. Moreover, Bryan's Fifth
Amendment protection outweighs Teresa's interest in a speedy
divorce. Therefore, applying the standard of review appropriate
in a mandamus proceeding, we believe the trial court exceeded
its discretion in denying Bryan's request for a stay of the
civil action pending resolution of the criminal charges against
him; the petition is granted and the trial court is ordered to
stay the civil divorce proceedings until the stalking charge
against Bryan is adjudicated at the trial level.
PETITION GRANTED; WRIT ISSUED.
LYONS, HARWOOD, and PARKER, JJ.,
concur.
SEE, J., concurs in Parts I and II and
concurs in the result as to Part III.
WOODALL, STUART, and SMITH, JJ., concur in
the result.
NABERS, C.J., dissents.
SEE, Justice (concurring in Parts I and II
and concurring in the result as to Part III).
I concur in the holding in the main
opinion that the criminal and civil proceedings in this case
are parallel proceedings and that the civil proceedings
threaten Bryan Rawls's Fifth Amendment right against
self-incrimination. I write separately to express my view on
the balancing of interests that I believe is called for in
cases such as this where the Fifth Amendment right is being
asserted in the context of parallel civil and criminal
proceedings.
The main opinion states: "For the reasons
stated, Bryan's Fifth Amendment right against
self-incrimination outweighs the other factors to be considered
in the balancing test, including any potential prejudice to
Teresa." 953 So.2d at 386. The dissent frames the inquiry in
terms of Rawls's interest in "the greatest possible share of
the marital estate" and Teresa's interest in "terminating an
allegedly abusive marriage and moving on with her life." 953
So.2d at 392.
I agree with the dissent that if the test
is whether Rawls's Fifth Amendment right against
self-incrimination outweighs the prejudice to his wife that
results from delaying the divorce proceeding, then to ask the
question is to answer it. However, I do not agree with the
dissent that the only interests to be considered are Rawls's
interest in receiving "the greatest possible share of the
marital estate" and Teresa's interest in "terminating an
allegedly abusive marriage and moving on with her life."
Rawls's Fifth Amendment right is threatened, and it is this
threat - not his Fifth Amendment right against
self-incrimination itself, but the threat to that
388
right - that should be weighed in the balance.
The dissent states: "Because [Rawls] may
refuse to answer, the fact that he may be asked a question the
response to which could incriminate him presents no Fifth
Amendment issue." 953 So.2d at 391-92. If, however, Rawls
chooses to litigate some issues in the civil proceeding while
remaining silent as to others, he runs the risk of waiving his
Fifth Amendment right against self-incrimination as to those
issues. The Fifth Amendment privilege cannot be selectively
invoked, and once answers to incriminating questions have been
given, the privilege is waived regarding questions on the same
subject. 5 Wayne R. LaFave et al., Criminal Procedure § 24.5
(2d ed.1999); John E. Nowak & Ronald D. Rotunda,
Constitutional Law § 7.6(a) (4th ed.1991). The parallel
proceedings here force Rawls "to choose between `asserting his
Fifth Amendment rights or participating fully in'" the civil
divorce proceedings. Ex parte Antonucci,917 So.2d 825, 831
(Ala.2005).(fn4)
I believe that the threat to Rawls's Fifth
Amendment right against self-incrimination and his interest in
the outcome of the divorce proceeding, as well as Teresa's
interest in the outcome of the divorce proceeding, are proper
interests to be weighed in deciding whether the divorce
proceeding should be stayed pending the resolution of the
criminal charges against Rawls; however, I believe that Rawls's
due-process rights to effectively defend himself in the
criminal trial and both Rawls's and his wife's rights to
effectively litigate the divorce proceeding ought also to be
considered.
Although this Court has usually discussed
the balancing involved in this type of case in terms of the
Fifth Amendment, we have never limited the analysis to Fifth
Amendment principles. For example, in Ex parte Baugh,530 So.2d
238, 242 (Ala. 1988), this Court quoted Wehling v. Columbia
Broadcasting System,608 F.2d 1084, 1088 (5th Cir.1979), for
support as it crafted a test for determining whether to stay a
parallel civil proceeding. In Wehling, the United States Court
of Appeals for the Fifth Circuit had pointed out that a party
seeking protection from an adversary's discovery requests
"`had, in addition to his Fifth Amendment right to silence, a
due process right to a judicial determination of his civil
action.'" Further, the Fifth Circuit Court of Appeals stated
that ordering a party to answer questions in a related civil
proceeding while the criminal action was pending "forced [the]
plaintiff to choose" between his right to silence under the
Fifth Amendment and his due-process right to litigate his civil
action. The Fifth Circuit Court of Appeals concluded that
"`[t]he Supreme Court has disapproved of procedures which
require a party to surrender one constitutional right in order
to assert another.'" 530 So.2d at 242 (quoting Wehling, 608
F.2d at 1088). In Baugh, this Court thus recognized that
criminal defendants have a right to a fair determination of
both their civil and their criminal cases. In addition, in
adopting in Baugh the balancing test from Afro-Lecon, Inc. v.
United States,820 F.2d 1198 (Fed.Cir.1987), this Court
considered the criminal defendant's "interest in postponement
of the civil proceedings," a phrase broad enough to encompass
more than the right against self-incrimination. 530 So.2d at
244.
As a criminal defendant, Rawls is entitled
to the protections of the limited discovery provided by the
Alabama Rules of
389
Criminal Procedure.(fn5) This Court has consistently expressed
concern that, in simultaneous proceedings, these protections
could be undermined by misuse of the broad discovery afforded
civil litigants, to the detriment of the criminal
defendant.(fn6)
I concur with the holding that the trial
court erred in denying Rawls's motion to stay the civil divorce
proceeding until the completion of the criminal proceeding
against him; however, because I would state the balancing test
differently, I concur only in the result as to that portion of
the main opinion.
NABERS, Chief Justice (dissenting).
I respectfully dissent. I assume, for the
sake of argument, that the divorce case and the stalking
prosecution are parallel proceedings.(fn7) Nevertheless, I
would deny the petition.
"`The Constitution does not require a stay
of civil proceedings pending the outcome of criminal
proceedings. . . .'" Ex parte Baugh,530 So.2d 238, 243
(Ala.1988)(quoting Afro-Lecon, Inc. v. United States,820 F.2d
1198, 1202 (Fed. Cir.1987)). Instead, the trial court has broad
discretion to grant or deny a stay of the civil proceedings. Ex
parte Coastal Training Inst.,583 So.2d 979, 980-81 (Ala. 1991);
see Landis v. North American Co.,299 U.S. 248, 254-55, 57 S.Ct.
163, 81 L.Ed. 153 (1936)(whether to stay an action is within
the trial court's inherent power to control its docket and
requires an exercise of the trial court's judgment). In this
case, the trial court acted within its discretion when it
denied Bryan's motion to stay the divorce action pending the
resolution of the criminal charges against him.
I.
The Fifth Amendment to the United States
Constitution, made applicable here through the Fourteenth
Amendment, provides that no one "shall be compelled in
390
any criminal case to be a witness against himself." In the
context of a civil action, this language prohibits a trial
court from requiring a witness to answer a potentially
incriminating question. Similarly, a trial court may not compel
discovery of potentially incriminating information.
The main opinion relies primarily on three
cases to support its conclusion that Bryan has a clear legal
right to a stay of the divorce action. Each of the three is
distinguishable from this case because each involved a genuine
risk of compelled self-incrimination. In contrast, Bryan has
failed to show that participating in a trial in the divorce
action will violate his Fifth Amendment right by requiring any
incriminating discovery or testimony.
This Court first confronted the question
whether to stay a parallel civil proceeding in Ex parte Baugh,
supra. In Baugh, a plaintiff in a civil action, facing a
possible grand-jury investigation, was held in contempt for
refusing to answer incriminating questions in a deposition.
This Court reversed the contempt conviction and held that the
plaintiff was entitled to a protective order preventing the
defendant in the civil action from obtaining incriminating
information through discovery, curing any Fifth Amendment
problem. However, the protective order also placed the
defendant "in the posture of having to maintain a defense
without necessary discovery." 530 So.2d at 244. As a result,
the Court ordered the entire civil proceeding stayed to protect
the defendant's interest.
In Ex parte Coastal Training Institute,
supra, the defendants refused to answer potentially
incriminating questions during a deposition. As it had in
Baugh, the Court in Coastal Training Institute focused on the
need to prevent the compelled discovery of potentially
incriminating information:
"While the Constitution does not require a stay of civil
proceedings pending the outcome of potential criminal
proceedings, a court has the discretion to postpone civil
discovery when `justice requires' that it do so `to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense.' Rule 26(c), Ala. R. Civ. P."
583 So.2d at 980-81. The Court's reasoning
in Ex parte Ebbers,871 So.2d 776 (Ala.2003), was similar:
"Under Rule 26(b), Ala. R. Civ. P., parties are entitled to
`obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending
action,' but under Rule 26(c) a party or other person from whom
discovery is sought may obtain a protective order from the
trial judge `for good cause shown.' (Emphasis supplied [in
Ebbers].) These provisions vest broad power in the trial court
to control the discovery process. Baugh, [Ex parte] White, [551
So.2d 923 (Ala. 1989),] and Coastal Training.
" . . . A court has the discretion to stay civil proceedings,
to postpone civil discovery, or to impose protective orders and
conditions in the face of parallel criminal proceedings against
one of the parties when the interests of justice seem to
require. . . . "
871 So.2d at 787-88.
These cases stand for the proposition that
the Fifth Amendment and Rule 26(c), Ala. R. Civ. P., prohibit
the trial court from compelling discovery of incriminating
information. This is a correct application of the privilege
against self-incrimination. If the trial court had ordered
Bryan to produce incriminating documents or had threatened to
hold him in contempt for refusing to answer an incriminating
question, I would join a decision to issue the writ of mandamus
to protect his Fifth
391
Amendment right against self-incrimination.
Neither of those scenarios, however, is
present in this case. Discovery has long been complete, and the
trial court has not ordered Bryan to answer any incriminating
question. In fact, Bryan does not even really argue that he
will have to incriminate himself at trial in the divorce
action. Instead, he argues that, if he testifies at trial, he
will have to refuse to incriminate himself.
By accepting Bryan's argument, the Court
has extended the privilege against self-incrimination far
beyond what is constitutionally required. Quoting Coastal
Training Institute, the main opinion characterizes as
"self-incrimination" the possibility that Bryan will be
"`compelled to refuse to answer questions. . . .'" 583 So.2d at
981. Under this view, Bryan not only has the right to refuse to
answer incriminating questions; he also has the right not to be
asked incriminating questions at trial. This is an accurate
quotation from Coastal Training Institute but an incorrect
statement of the law.(fn8) The Fifth Amendment privileges a
witness "not to answer official questions put to him. . . ."
Baxter v. Palmigiano,425 U.S. 308, 316, 96 S.Ct. 1551, 47
L.Ed.2d 810 (1976)(emphasis added). It does not protect the
witness from being asked the questions in the first place, or
(in a civil action) from the consequences of a refusal to
answer. 425 U.S. at 318, 96 S.Ct. 1551 ("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").
Bryan's refusal to answer incriminating
questions at the trial of the divorce action may or may not
prejudice his position in that action. That was a valid
equitable consideration in the trial court's deciding whether
to grant a stay, but it does not directly implicate the Fifth
Amendment. "That the defendant faces such a dilemma demanding a
choice between complete silence and presenting a defense has
never been thought an invasion of the privilege against
compelled self-incrimination." Williams v. Florida,399 U.S. 78,
84, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Because
392
he may refuse to answer, the fact that Bryan may be asked a
question the response to which could incriminate him presents
no Fifth Amendment issue.
II.
In light of this analysis, I believe that
the main opinion misstates the relevant inquiry in determining
whether Bryan is entitled to a stay. The Court speaks of a
balancing test in which Teresa's interest in an end to her
divorce action is weighed against Bryan's Fifth Amendment right
against self-incrimination. After "balancing" those interests,
the main opinion reaches the inevitable conclusion: "Bryan's
Fifth Amendment right against self-incrimination outweighs the
other factors to be considered in the balancing test, including
any potential prejudice to Teresa." 953 So.2d at 386.
It does - or, rather, it would - if there
were actually a Fifth Amendment issue presented. If Bryan's
participation at the trial of the divorce action really
constituted compelled self-incrimination, he would have a
constitutional right to a stay, regardless of the prejudice to
Teresa. The main opinion correctly states that there is no
constitutional right to a stay. By doing so, however, and by
applying a balancing test, the main opinion tacitly
acknowledges that something other than Bryan's Fifth Amendment
right is at stake.
It is Bryan's interest in the divorce
action - not the possibility of prejudice to his constitutional
rights in a parallel criminal proceeding - that the Court must
balance against Teresa's interests. In fact, this is precisely
how Bryan has framed the issue. As he puts it, he does not want
to have to invoke the privilege in the divorce proceeding
because he wants to "receive all he is entitled to as a result
of the divorce." This is a valid interest, but it implicates a
constitutional right only in that the exercise of that right
may (or may not) impede Bryan's arguments in the divorce
proceeding.
III.
In my judgment, the equities of this case
clearly balance in Teresa's favor. Her personal interest in
terminating an allegedly abusive marriage and moving on with
her life could hardly be more compelling. By contrast, Bryan's
interest is his wish to avoid the possibility that he may
invoke the privilege against self-incrimination in the divorce
proceeding; he believes that avoiding that possibility will
help him receive the greatest possible share of the marital
estate.
In deciding whether to grant a stay, the
trial court was free to consider other factors. For example,
Teresa's counsel has agreed to limit the scope of the evidence
to reduce the possibility that Bryan will be asked questions
that relate to the pending criminal charges. In Ex parte
Oliver,864 So.2d 1064, 1067 (Ala.2003), the plaintiffs'
agreement to "modif[y] and limit[] their discovery in light of
[the defendant]'s privilege against self-incrimination" was a
sufficient basis to deny a petition for the writ of mandamus.
864 So.2d at 1067. The trial court was also free to hold
against Bryan the fact that he did not move to stay the action
until the day before trial. Ebbers, 871 So.2d at 790. These
factors further reinforce the conclusion that the equities of
this case weigh in Teresa's favor.
Perhaps others would balance the equities
differently than do I. Perhaps others in the trial court's
position would grant Bryan's motion to stay the action.
However, that is not the question that this Court has been
asked to decide. Bryan is not entitled to the writ of mandamus
unless he carries his burden of showing that the trial court
clearly exceeded its discretion in denying
393
his motion to stay. The trial court is in a far better position
than is this Court to know the status of its docket, the
progress of the case to this point, and the likelihood that
Bryan's motion is merely a stalling or negotiating tactic.
There is every reason to allow the trial court broad discretion
in this type of case.
IV.
The trial court did not exceed its
discretion by deciding that Teresa's interest in terminating an
allegedly abusive marriage outweighed Bryan's interest in not
having to invoke the privilege against self-incrimination
during the divorce proceeding. Ironically, the main opinion
would deny Teresa a final judgment in her divorce proceeding
because of her allegations of abuse. In the circumstances of
this case, the result the Court reaches is, I think, both
illogical and unfair.
Teresa has a profound interest in
concluding her divorce action, which has now been pending for
nearly two years. The fact that Bryan may have to invoke his
privilege against self-incrimination at trial in that action
does not establish his clear legal right to stay the action or
any part of it. I respectfully dissent.
_____________________
Footnotes:
FN1. The dissent emphasizes that Bryan did
not move for a stay of the divorce proceeding until the day
before trial in the divorce proceeding was scheduled to begin.
However, the dissent fails to acknowledge that Bryan was not
arrested on the criminal charges until one week before the
trial date. Therefore, he had a valid reason for not moving for
the stay until the day before the proceedings were scheduled to
begin.
FN2. Article I, § 6, Ala. Const.1901,
provides: "That in all criminal prosecutions, the accused . . .
shall not be compelled to give evidence against himself. . .
."
FN3. On this petition for the writ of
mandamus, this Court has no record before it of whether
discovery has been completed. We assume that the dissent makes
the statement that "[d]iscovery has long been complete," 953
So.2d at 391, because the trial in the case was set to begin
the day after Bryan requested the stay. However, nothing before
us confirms that assumption. Likewise, this Court has nothing
before it stating that Bryan has not had to answer an
incriminating question. During discovery, Bryan may have
answered incriminating questions. Because he had not been
indicted when discovery was conducted, he may have been unaware
of the incriminating nature of his answers. The dissent assumes
facts of which this Court has no knowledge.
FN4. This Court in Antonucci did not
require the criminal defendant to make that choice.
FN5. See, e.g., Rule 16.2(d), Ala. R.Crim.
P. (denying the State the discovery of certain statements by
the defendant and witnesses); Jackson v. State,623 So.2d 411,
413 (Ala.Crim. App.1993) (concluding that the State had no
right to the defendant's witness list).
FN6. See Ex parte Coastal Training
Inst.,583 So.2d 979, 981 (Ala.1991) ("`The broad scope of civil
discovery may present to both the prosecution, and at times the
criminal defendant, an irresistible temptation to use that
discovery to one's advantage in a criminal case.'" (quoting
Afro-Lecon, 820 F.2d at 1203)).
FN7. It is, however, not at all clear that
this is so. The Court concludes that the divorce case and the
stalking prosecution are parallel proceedings because "[t]o
prove the stalking charge, the prosecution will possibly need
to avail itself of evidence of alleged incidents and alleged
abuse by Bryan that occurred before Teresa filed for divorce."
953 So.2d at 380. The basis for this statement is unclear,
unless it is Bryan's conclusory statement in his brief that the
stalking charge "will necessarily involve the allegations of
abuse prior to the complaint for divorce. . . ." (Bryan's brief
on original submission at 10.) However, Bryan's own reply brief
includes as an attachment a copy of Teresa's sworn statement
alleging that Bryan made harassing telephone calls to her on
October 30, October 31, and November 1, 2004. If proven, these
facts could establish a pattern of harassment that took place
after Teresa filed for divorce.
The indictment does not include the dates
on which Bryan allegedly followed and/or harassed Teresa.
However, the stalking charge is included in the same indictment
with the charges of criminal mischief and criminal trespass,
both based on an incident that occurred after Teresa had filed
for divorce. This suggests that the stalking charge is also
based on events that occurred after the divorce action was
filed. See Rule 13.3(a)(2), Ala. R.Crim. P. (offenses may be
joined in the same indictment if they are based on the same
conduct or are otherwise connected in their commission). At
best, Bryan has shown a possibility that the criminal and civil
proceedings may be partially parallel.
FN8. This language in Coastal Training
Institute was taken verbatim from Afro-Lecon, Inc. v. United
States, a Federal Circuit case. Afro-Lecon offered no authority
for its statement that the Fifth Amendment protects one from
being "`compelled to refuse to answer questions individually.'"
The lone citation accompanying that statement in Afro-Lecon is
to Hoffman v. United States,341 U.S. 479, 71 S.Ct. 814, 95
L.Ed. 1118 (1951). Hoffman involved a contempt prosecution, not
a request for a stay. Moreover, the case says nothing about
being "compelled to refuse to answer" - a phrase that is
something of a contradiction in terms.
The question of whether to stay a parallel
proceeding is not a constitutional issue, and the United States
Courts of Appeals have taken very different approaches in
determining when a stay is required. It is unclear why the
Court in Coastal Training Institute decided to rely on a
Federal Circuit decision. The Federal Circuit has extremely
limited jurisdiction, with a focus on federal contracts,
intellectual property, and international trade, 28 U.S.C. §
1295; it does not decide criminal cases. In contrast, the other
federal courts of appeal routinely decide criminal cases and
have vast expertise in matters of criminal law and
procedure.
The Federal Circuit's approach as to when
to grant a stay is in stark contrast with the approach taken by
the United States Court of Appeals for the Eleventh Circuit.
The latter will stay a parallel proceeding only if "the
invocation of the privilege would result in `automatic entry of
summary judgment.'" United States v. Premises Located at Route
13,946 F.2d 749, 756 (11th Cir.1991). Otherwise, "[d]efendants
may exercise their Fifth Amendment rights by not presenting
evidence which would implicate them in their criminal
proceedings." Shell Oil Co. v. Altina Assocs., Inc.,866 F.Supp.
536, 540 (M.D.Fla.1994).
AL
So.2d
377
with [Teresa] until the final hearing before this Court."
380
but also privileges him not to answer official questions put to
him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future
criminal proceedings."
383
fifth amendment rights, is compelled to refuse to answer
questions individually, revealing his weak points to the
criminal prosecutor. This point-by-point review of the civil
case may lead to a "link in the chain of evidence" that
unconstitutionally contributes to the defendant's conviction.
Hoffman v. United States,341 U.S. 479, 486 [71 S.Ct. 814, 818,
95 L.Ed. 1118] (1951).'"
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