The defendant, formerly an attorney, was charged with four counts of Grand Larceny in the Third Degree, one count each of Grand Larceny in the Fourth Degree, Petit Larceny, Scheme to Defraud in the First Degree, and nine counts of Practice of Law by Disbarred or Suspended Attorney. In essence, the allegations are that the defendant stole money from several clients and another person, both before and after she was suspended from the practice of law. Before any of these charges were brought against the defendant, the Disciplinary Committee for the First Judicial Department began an investigation into several of these matters, which later became the subject of some of the criminal charges she is facing.
After complaints were filed against her, and before she was suspended from the practice of law, the defendant testified in a hearing conducted on behalf of the Disciplinary Committee on November 16, 2006, February 21, 2007, March 13, 2008, and November 23, 2009, the first three times without an attorney, and on the final occasion, with one. At the beginning of the first appearance, an attorney for the Committee informed the defendant that she was appearing voluntarily, that she was entitled to have counsel with her, and that the proceedings would be adjourned any time she requested counsel.
The defendant woman was informed that it is a civil proceeding and if she should assert her Fifth Amendment privilege, the Committee attorney informed her that she can make an adverse inference. By statute and case law the defendant is required to answer questions even though she might at some point raise an objection to they’re being entered into evidence should it come to that. But she does have to answer.
Finally, the Committee attorney informed her that the proceeding is confidential pursuant to Section 90.10 of the judiciary law. The Committee attorney gave the defendant similar admonitions when she testified on March 13, 2008.
On all four occasions that the defendant appeared she answered the questions put to her. On November 16, 2006 and March 13, 2008 — the two occasions in which the defendant was given the admonitions set forth above — she was asked whether the money that the complainant woman had given to her for the down payment on the purchase of property was still in her escrow account. Both time she testified that the money was still there.
Based on banking records, the State allege that this testimony was false, a fact which the defendant does not now contest. The State assert that in this criminal case, in which the defendant is charged with, stealing money from the complainant woman, the falsity of that testimony evidences a consciousness of guilt. Accordingly, they asked permission to offer those portions of the defendant’s hearing testimony at the trial. In a motion in limine, the defendant objected to the admission of the testimony, claiming that the adverse inference that would have been applicable had she asserted her right against self-incrimination rendered her answers compelled within the meaning of the Fifth Amendment. After hearing argument and receiving written submissions from both sides, the court finds the testimony admissible.
The admonitions that the defendant received were, without doubt, poorly phrased. As quoted above, she was first told that she had a Fifth Amendment right not to testify, albeit with the possible consequence of the drawing of an adverse inference in the hearing. She was then told that she was required to answer questions but that her testimony would be confidential. She was not informed that if she answered questions, they might be offered in evidence against her in a subsequent criminal proceeding. Nevertheless, she does not now claim that by being required to answer questions she believed she would be compelled to answer them even had she asserted her Fifth Amendment privilege. Nor does she claim that she believed the promise of confidentiality meant her answers could not be offered against her in any subsequent criminal proceedings.
The defendant also does not assert that if she had been specifically informed of the possibility of their use in a subsequent criminal proceeding she would have asserted the privilege. In any case, such a claim would have been unavailing. The defendants in a prior civil proceeding asserted the Fifth Amendment privilege as to some questions put to them, but made statements is response to others, and those statements were later offered in evidence against them in a criminal prosecution. The defendants argued that the statements were inadmissible because they would have asserted the privilege in the civil proceeding had they known they would be later prosecuted. The Court rejected the claim, reasoning that since they could have invoked the privilege with respect to those questions they did answer, they could not rely upon what information they did disclose to establish prejudice.
The sole ground upon which the defendant does claim that she was compelled to testify at the disciplinary hearing is by the prospect of the adverse inference that could have been drawn against her in that proceeding had she invoked her privilege against self-incrimination. In support of her claim, the defendant cites a similar case where the court precluded the State from offering against the defendant statements he made to a certified social worker, which the Court held were privileged. The defendant does not claim such a privilege applied to her testimony in this case, and none did.
The court held that, just as in a criminal case where the defendant’s statements at a hearing on a motion to suppress are not admissible if offered by the State in their direct case, likewise the defendant’s civil case statements in a pro se lawsuit alleging constitutional violations ought not be introduced against him at a criminal trial on related issues.
The Supreme Court also held that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. As the Supreme Court and numerous other courts have made clear, however, the Fifth Amendment applies quite differently to testimony given in a civil proceeding.
Furthermore, a person may not suffer any penalty in a criminal case for exercise of her Fifth Amendment right to silence, and that this prohibition is not restricted to fine or imprisonment, but extends to the imposition of any sanction which makes assertion of the Fifth Amendment privilege costly.
As the State correctly observes, however, the assertion of the right against self-incrimination in an attorney’s disciplinary proceeding in New York is no longer by itself sufficient to justify the attorney’s suspension or disbarment. Instead, it may result only in the drawing of an adverse inference, which may be considered along with other evidence of misconduct in determining whether to suspend or disbar the attorney. Moreover, such action may be taken only in conjunction with other misconduct which, together form a basis for uncontested evidence of professional misconduct. In other words, merely invoking one’s Fifth Amendment right against self-incrimination should not serve as a separate ground for an interim suspension.
An earlier decision in which the Court held the answers to interrogatories submitted to a corporation and given by the defendant, one of its vice-presidents, could be used against him in a subsequent criminal prosecution. Had no one answered the interrogatories on behalf of the corporation, the government could have seized certain products it manufactured. Nonetheless, the Court reasoned that because the defendant could have invoked his Fifth Amendment privilege against compulsory self-incrimination rather than answer the interrogatories, he was not compelled to give testimony against himself even if the information the defendant supplied the Government in his answers to the interrogatories, if not necessary to the proof of the Government’s case in the criminal prosecution, at least provided evidence or leads useful to the Government.
If a person forgoes her Fifth Amendment privilege in a civil matter and makes statements, even a disciplinary hearing like this one, in which an adverse inference may be drawn from the assertion of the privilege against self-incrimination, a prosecutor can offer those statements in evidence against her in a subsequent criminal case. Other courts have explicitly said so. For example, a physician accused of writing illegal prescriptions sought to suspend disciplinary proceedings against him until pending criminal charges were resolved. The First Circuit held that the Fifth Amendment did not prohibit the board conducting the proceedings from drawing an adverse inference should the physician refuse to testify. The Court concluded that there was nothing inherently repugnant to due process in requiring the doctor to choose between giving testimony at the disciplinary hearing, a course that may help the criminal prosecutors, and keeping silent, a course that may lead to the loss of his license.
Similarly, in this case, had the defendant exercised her right to silence in the disciplinary proceeding, her silence could have been considered, along with other evidence, in determining whether she should be suspended from the practice of law. Had she done so, her assertion of that right could not, of course, have been offered in evidence against her in this trial. However, she chose instead to testify, and because that choice was voluntary and not compelled within the meaning of the Fifth Amendment, her testimony is admissible against her in this criminal case.
Finally, the defendant asserts that the hearing testimony should not be admitted because its probative value is outweighed by the prejudice it would cause her, in particular because her motivation in testifying falsely at the hearing was her fear of suspension and disbarment, which could be based solely on the violation of the disciplinary rules committed by her removal of the funds from the escrow account, regardless of whether she stole those funds. This argument is also without merit. First, evidence that the money was removed from the account is admissible to establish that she stole it, regardless of whether her hearing testimony to the contrary is admitted at trial. Second, while defense counsel may argue to the jury that her motive in giving the false testimony was solely to prevent her suspension (and, of course, the defendant, if she wishes, may so testify), the jury is entitled to consider that her false testimony was evidence of her consciousness of guilt of the alleged theft.
Observing that the court has always recognized the ambiguity of evidence of flight and insisted that the jury be closely instructed as to its weakness as an indication of guilt of the crime charged, and noting that such a charge had been given the Court upheld the defendant’s conviction. Here, too, although the defendant may have had another motive for testifying falsely, it is nonetheless relevant as evidence of consciousness of guilt, and the jury will receive the appropriate instruction concerning the weakness of such evidence.
For these reasons, the State’s application to permit admission of the relevant portions of that testimony was granted and the defendant’s in limine motion to preclude their admission was denied.
More is expected from persons of the law. However, if they do commit a crime, they are still entitled to a fair trial. If you are being accused of violating the law, the Bronx County Criminal Attorney together with the Bronx County Grand Larceny Lawyer can argue for you in court.