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When a civil action results in criminal charges, often the most compelling evidence in favor of conviction is self- incriminating evidence disclosed in the civil case. Recently, I spoke on a panel addressing the various ways civil litigation can implicate a client in criminal conduct. Following the presentation, a member of the audience submitted a question: “Practically speaking, what options exist if you identify an area where your client might incriminate himself? And, if your client makes an incriminating statement or turns over an incriminating document, what can be done to protect them in the criminal context?” This article is my attempt to answer these practical questions from the perspectives of plaintiff, defendant, and witness.

I. The Basic Legal Framework

The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution gives every person the right not to “be compelled in any criminal case to be a witness against himself.” [1] Article I, section 12 of the Oregon Constitution states: “No person shall be … compelled in any criminal prosecution to testify against himself.” [2] These privileges can be raised in any proceeding at any juncture where the testimony may be incriminating in a future criminal proceeding. [3] This includes civil, administrative, and criminal cases, as well as non-judicial settings. [4]

In order for a person to assert their Fifth Amendment right against self-incrimination, they must have an articulable interest that can be expressed in order to show their testimony would either support a conviction or “furnish a link in the chain of evidence needed to prosecute [them] for a federal crime.” [5] A court determines whether a person’s Fifth Amendment assertion is justified by deciding “whether [they are] confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination.” [6] Of course, the witness does not need to explain why answering a question would incriminate them. “To sustain the privilege, it need only be evidenced 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.” [7] In other words, the Fifth Amendment protects more than the proverbial smoking gun and other plainly phrased admissions of wrongdoing. It also protects statements that may seem innocent on their faces but, in light of previously developed facts, could be injurious.

In addition to the testimonial setting, the Fifth Amendment also applies when a person produces documents, which typically occurs in response to a subpoena duces tecum or a request for production. Pursuant to the “Act of Production” privilege, the very act of producing documents (as opposed to the contents of the documents themselves [8]) is protected under the Fifth Amendment to the extent that the production may constitute implied testimony that could be incriminating. [9] The “Act of Production” privilege may arise where the production of records amounts to the tacit admission of a document’s existence or a client’s possession of them, either of which could be incriminating. In addition, the “Act of Production” privilege is implicated when the production may serve to authenticate documents that would otherwise have questionable foundations. [10] If, under any of these theories, a production of documents is incriminating, a person can assert their Fifth Amendment right and refuse to produce the documents unless the requesting party can show with “reasonable particularity” that the existence, location, and authentication of the documents are “foregone conclusions.” [11]

II. Strategic Considerations

In some cases, your client may choose to waive their Fifth Amendment right against self-incrimination and make statements or produce documents in a civil case. Such a waiver must be “knowing, intelligent, and voluntary.” [12] Before making this choice, however, counsel must carefully advise a client on the risks of doing so. Balancing your client’s interests against likely outcomes is extremely difficult, and the decision is not always clear cut. For example, if your client is the subject of a SEC enforcement action and an ongoing criminal investigation, the answer is far simpler than in a situation where you believe your client could be implicated in a civil matter that involves no known criminal investigation, but which may still carry criminal ramifications. Your advice will also depend on whether your client is a plaintiff, a defendant, or a witness subpoenaed to testify or produce documents.

A. Plaintiffs

Advising plaintiffs on whether they should waive their Fifth Amendment right requires contending with a number of emotional considerations. In some instances your client feels wronged, and you, having conducted discovery, also believe that your client has been wronged. In other instances you believe in the client’s cause, and the client either needs financial compensation for his losses, wants to set a precedent, or simply wants to vindicate themselves or repair their reputation. Regardless, if the matter is pursued, the defense may try to implicate your client in wrongdoing, whether fairly or not. There is a significant risk that, even if your client prevails in the civil case, the evidence obtained in that litigation could later be used against your client to build a criminal case. The success in one arena could jeopardize your client’s interests in another.

For a plaintiff, there is really only one option for avoiding criminal liability: not pursuing a claim. Although this outcome is difficult for a client to accept, the added costs of later defending against a criminal prosecution will usually out-weigh any potential recovery in a civil case. Of course, counsel should also consider any avenue to settle a matter in a way that might partially, if not totally, bring about the relief sought in the lawsuit. For example, with the client who sees them- selves as a whistle blower, perhaps you could persuade your client’s employer to adopt new policies that will help ensure that the sort of conduct at issue in the case does not reoccur.

B. Defendants

Like plaintiffs, defendants certainly experience strong emotions and the same considerations may exist: vindication, reputation, money, and fear of setting a precedent. Yet the risk of incrimination in formulating a defense may exist because of the nature of the claims and the interest of the accuser. The risk in this situation may be more obvious, but the choices more limited. Defendants, unlike plaintiffs, do not have the initial choice of whether or not to bring the litigation in light of all of the risks. Therefore, before you begin the discussion with your client about what they can “afford to risk,” it is important to understand the various areas where criminal liability arises, and what can or can’t be done to resolve the risk.

In determining whether your client may be facing criminal liability, you should consider whether the facts used to establish your client’s claims or defenses, or the facts that will come out in their testimony, could also be used to satisfy the elements of a criminal charge. You should also determine whether the government is already investigating your client.

If you are unsure whether there is an active investigation, but believe your client has potential criminal liability, it can be wise as a first step to reach out to the law enforcement agency or prosecutor’s office that would be the entity investigating your client. Although prosecutors are not required to inform prospective defendants that they are being investigated, they cannot engage in “trickery or deceit” in order to affirmatively mislead the subject of parallel civil and criminal investigations into believing that the investigation is exclusively civil in nature pursuant to the “parallel proceedings” doctrine. [13] Regardless of what a prosecutor tells you about the status of their investigation, an initial inquiry will at a minimum open up a dialogue and, in some circumstances, the dialogue itself can help counsel understand whether or not their client’s case is the type that the prosecutor would have an interest in. It can also create an opportunity for you to explain your client’s role in the matter. If you have a compelling argument to make at this early stage, it could make the difference between your client being a cooperating witness or a defendant in a future criminal proceeding.

If you ultimately determine your client has potential criminal liability, the next step is to consider the potential downsides of asserting the Fifth Amendment. If your client is a litigant in federal court, they run the risk of having an adverse inference drawn against them with respect to the fact they refuse to disclose. [14] However, such an inference can be drawn only if independent evidence exists that could prove the fact your client refuses to disclose. [15] In Oregon state court, on the other hand, no adverse inference is allowed in the event your client asserts their Fifth Amendment right. [16] But, a defendant cannot use the assertion of the Fifth Amendment as both a sword and shield. If your client testifies affirmatively, they may then waive their right to assert the Fifth Amendment during cross examination. In that situation, the client runs the risk of having their testimony struck if they do not answer questions. [17]

In addition to asserting the Fifth Amendment there are several alternatives available to defendants that, if successfully obtained, can at least temporarily mitigate the risk of criminal liability.

1. Settlement
Settlement is, of course, the obvious choice if the parties can reach an acceptable agreement. Even with a settlement, however, counsel must carefully draft written agreements to ensure recitals and other factual provisions do not implicate their client.

2. Stay of Proceedings
In a case where a settlement is not an option, a defendant can move to stay a civil case in whole or in part if the facts of the lawsuit parallel possible criminal liability. However, a court has discretion to refuse to stay the proceeding after balancing the following factors: (1) the interest of the plaintiffs in proceeding expeditiously, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court, and the efficient use of judicial resources; (4) any relevant interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and, if applicable, criminal litigation. [18] Put more simply, a defendant will not be granted a stay based on the mere possibility of criminal liability, and will have to assert their Fifth Amendment right if denied a stay.

3. Motions to Quash or Motions for a Protective Order
A complete consideration of the grounds for seeking a protective order against a discovery request or quashing a subpoena is beyond the scope of this article. However, a discovery request or subpoena may be objectionable because it is overbroad, asks for privileged information, or, of course, where responding to it would expose your client to self-incrimination because it assumes guilt. [19]

C. Witnesses

A client who is subpoenaed to testify as a witness or pro- duce documents in a matter where they may be exposed to criminal liability is in a different situation than a plaintiff or a defendant. Such a client lacks the power to stay a proceeding, and has no claim to drop. Furthermore, they cannot simply refuse to comply with a subpoena or decide not to attend the proceeding. A witness can, however, refuse to answer questions by asserting their Fifth Amendment right without having to worry about an adverse inference being drawn against them. But, the act of refusing to answer will certainly place the spotlight on them and their conduct. It may also cause reputational damage. This sort of client, because of their role in society or within a company, may be reluctant to assert their Fifth Amendment right. Such a client is also the very person with whom having the discussion regarding risks may be the most important.

III. Damage Control

The biggest risk of your client making incriminating statements is that those statements may later be used in a criminal prosecution against them. But how does this play out in the real world? One example is where your client appears for a deposition and makes statements that implicate them in criminal activity. These statements have several negative consequences. First, the statements may provide the government a road map of your client’s likely defenses. Second, the government may claim that the statements themselves (if any aspect of them are at odds with the facts alleged by the prosecution) were an obstruction of an investigation. This, in turn, could allow a prosecutor to bring an obstruction charge separately, or use the allegation of obstruction to enhance a criminal sentence. [20]

Third, and most importantly, the statements will be admissible in evidence in a criminal prosecution against your client as admissions of a party opponent. Unfortunately, regardless of your client’s intent when making the statements, there is no similar right for a criminal defendant to use the exculpatory portions of the same deposition. Such a deposition can be particularly damaging if your client chooses not to testify during a criminal trial and has no chance to explain the context of the statement or what they were thinking when they made it.

Under the rules of evidence, in order to mitigate the harm of the prior statement, defense counsel can (1) find other areas of testimony from the prior statement, omitted by the prosecu- tor, that are admissible under the “rule of completeness;” [21] (2) challenge the prosecutor’s characterization of the statement as an admission; or (3) argue a constitutional basis for exclusion that would otherwise make the statement involuntary.

One such constitutional basis could be that the statement was given pursuant to an involuntary waiver of your client’s Fifth Amendment right. If a government investigator was questioning your client when the incriminating statement was made, then there may be an avenue to suppress the statement through the doctrine of parallel proceedings. This doctrine, in a nutshell, says that a civil case cannot be used as a stalking horse for a criminal prosecution. For one thing, the government cannot bring a civil action solely to obtain evidence for a criminal prosecution. [22] But even if the civil action is not brought solely for the sake of criminal prosecution, the circumstances may indicate that a criminal prosecution is inappropriately utilizing a civil investigation for fact-gathering. [23] If, for instance, staff from separate civil and criminal agencies meet regularly, identify targets together, or share documents, there may be grounds in the criminal prosecution to suppress a statement made in response to questioning by the civil investigators. The same argument could be made if the government creates an “agency” with a private civil attorney and uses that attorney to gather information for a prosecution. In such a situation, the civil attorney may be found to have acted “as an ‘instrument’ or agent of the state.” [24] A court may make such a finding after determining: “(1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.” [25]

IV. Conclusion

The decision of whether to assert the Fifth Amendment right against self-incrimination can have a dispositive impact on civil litigation. Clients facing this choice may be dealing with the potential loss of a business, a job, emotional or physical pain, or a dire need for financial compensation or even simple vindication. These clients certainly never imagined they would need to choose between asserting legal claims or defenses and taking the Fifth. I have learned over the years that in order to resolve the issue the most important question to explore with the client is: “What can you afford to risk?” For each client in each situation, the answer may be very different. An outsider may assume that the obvious answer is, “I cannot afford a criminal conviction,” or, “I cannot afford a prison sentence.” But sometimes, despite counsel’s concern for their client’s criminal prosecution, that is not the most important factor to a client. Some clients may care more about their reputation in the proverbial “court of public opinion,” or the business they have built up over time, or conveying to their children that you can’t just give in to bullies. Each client is unique, and each has a different take on what constitutes too large a risk. Helping a client figure out the risks and how to navigate the areas that are potentially incriminating is one of the most difficult areas for counsel to advise, and for the client to decide what is ultimately not worth risking.

 

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[1] U.S. Const. Amend. V.
[2] The jurisprudence regarding the Self-Incrimination Clause of the Fifth Amendment generally applies to the Oregon Constitution’s analogous privilege.
[3] United States v. Balsys, 524 U.S. 666, 672 (1998).
[4] See id.; State v. Langan, 301 Or. 1, 5 (1986) (Article I, section 12 privilege against self-incrimination applies in any judicial or non-judicial setting where compelled testimony is sought that might be used against the witness in a criminal prosecution).
[5] United States v. Rendahl, 746 F.2d 553, 555 (9th Cir. 1984) (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)).
[6] United States v. Apfelbaum, 445 U.S. 115, 128.
[7] Hoffman, 341 U.S. at 486-7.
[8] Because the Fifth Amendment only protects a person from compelled self- incrimination, a document that was voluntarily created is not protected. See Fisher v. United States, 425 U.S. 391, 396 (1976); Schmerber v. California, 384 U.S. 757, 761 (the privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature”).
[9] “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988).
[10] See id. at 216 (noting that authentication by production would be “testimonial” in nature).
[11] In re Grand Jury Subpoena, 383 F.3d 905 (9th Cir. 2004).
[12] Edwards v. Arizona, 451 U.S. 477, 482 (1981); State v. McAnulty, 356 Or 432, 455 (2014).
[13] United States v. Stringer, 521 F.3d 1189, 1198 (9th Cir. 2008) (citing United States v. Robson, 477 F.2d 13, 18 (9th Cir. 1973).
[14] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).
[15] Doe ex rel. Rudey-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (“[W]hen there is no corroborating evidence to support the fact under inquiry, the proponent of the fact must come forward with evidence to support the allegation, otherwise no negative inference will be permitted.”).
[16] OEC 513(1) (“The claim of privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from a claim of privilege.”); John Deere Co. v. Epstein, 307 Or 348 (1989).
[17] See United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980).
[18] Id.
[19] For example, if a subpoena to a banker ordered the production of “all documents related to the unauthorized cashing of checks,” a court would almost certainly quash it.
[20] However, before the statement can be used for such a purpose, the government must demonstrate that “the defendant gave false testimony on a material matter with willful intent.” See, e.g., United States v. Herrera- Rivera, 832 F.3d 1166, 1175 (9th Cir. 2016) (quoting United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014)).
[21] Federal Rule of Evidence 106 provides that, “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.” Rule 106 of the Oregon Evidence Code provides the same rule, but extends it beyond just writings and recorded statements to “act[s], declaration[s], and conversation[s].”
[22] United States v. Kordel, 397 U.S. 1, 11 (1970).
[23] Stringer, 521 F.3d 1198.
[24] Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971).
[25] United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1994) (quoting United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994)).

I have spent thousands of hours in the courtroom, tried civil and criminal cases, and had the opportunity to observe all kinds of lawyers advocating for their clients. Of all of the mistakes a lawyer can make in trial, one is far more gut churning than any other.

Imagine the following scene: a lawyer is in trial listening to an adverse witness testify on direct examination. The lawyer hears the witness make several inconsistent statements about critical facts. The lawyer begins vigorously flipping through documents at counsel table, highlighting reports and deposition transcripts, and eagerly waits to destroy the witness on cross. The lawyer gets to the podium, pulls out a deposition transcript, and immediately demands to know whether the witness made one of the highlighted statements in the deposition transcript. The opposing counsel stands up, and in an unassuming voice says, “objection, improper impeachment.” Before the lawyer knows it, the judge sustains the objection. The lawyer, not as aggressive this time, asks the same question but refers to a different highlighted statement. The opposing counsel makes the same objection, which the judge quickly sustains. At this point, the lawyer has lost all color from his face. The courtroom is silent, with the exception of the noise the lawyer is making by aimlessly shuffling paper on the podium. The lawyer, now frantic and aware that the jury is watching him, gives up and moves on to the comfort of his prepared cross.

The scene I just described is not limited to new lawyers. I have observed lawyers of all experience levels try and fail to impeach a witness using a prior inconsistent statement. This is heartbreaking, because one of the most powerful and effective forms of trial advocacy is impeachment by prior inconsistent statement. There is no better way to drive a knife into the heart of the credibility of a witness. However, this deceptively simple tool is often used improperly. A sustained “improper impeachment” objection is not only embarrassing, it also greatly reduces the efficacy of your cross examination. Therefore, if you are about to find yourself in trial, it is critical to review this skill and ensure you are comfortable employing it properly and in a way that inflicts maximum damage. Below is a brief review of the mechanics of impeachment by prior inconsistent statement, as well as some tips I have learned during my time in the courtroom.

Terminology

Impeachment by prior inconsistent statement is used when a witness remembers a fact, but previously made a different statement about that fact. Impeachment by prior inconsistent statement has three basic steps, which have been described in a number of ways. One of the most popular is the “three Cs,” confirm, credit, and confront. Alternatively, the three steps have been described as follows: repeat, build up, impeach. Whatever way you choose to remember the three steps of impeachment by prior inconsistent statement, the process is the same. 

1. Repeat

First, the most basic step, is to have the witness repeat the testimony from today’s hearing that you want to impeach. You cannot effectively impeach unless the witness repeats a fact they said during the current hearing that clearly contradicts a prior statement. While this seems simple enough, you can easily run into trouble by tipping off the witness that you are about to impeach them. An experienced witness, such as a police officer, will immediately know what you are trying to do and offer an explanation. To avoid alerting an experienced witness of what is about to happen, try to ask the question in a more casual manner. For any other witness, a more aggressive form of questioning is appropriate. For example, using phrases like “today you say. . .” or “today you claim . . .” alerts the jury that you are questioning the accuracy of the witness’s statement and that you will soon draw a contrast. I have also found that asking something like, “there is no question in your mind that the statement you gave today is true,” as well as asking the witness if they ever gave a different answer to the question that will be the subject of the impeachment, creates added effect.

2. Build Up

The second step is to credit, or build up, the prior statement. There are two purposes for this step. First, it is to show that the prior statement was more reliable and accurate. Second, it is to establish a foundation that will allow you to use extrinsic evidence of the prior inconsistent statement. OEC 613(2).

The means by which you establish the accuracy and reliability of a prior statement depends on the nature of the prior statement. For example, if the prior statement is an oral statement given to a police officer, it is important to emphasize the following:

• (1) where the witness was when they made the statement;
• (2) the fact that the witness made the statement right after the event when it was fresh in their mind;
• (3) the importance of giving police officers accurate information;
• (4) the witness’s desire to give the police accurate information to make sure the right person is arrested; and
• (5) that the witness did in fact give the police accurate information.

If, however, the witness made the prior statement in a deposition, you should emphasize slightly different facts:

• (1) where and when the deposition occurred;
• (2) the presence of a court reporter;
• (3) the fact that the witness took an oath to tell the truth and was subject to penalties for perjury; and
• (4) the fact that the witness had an opportunity to read their testimony and ensure it was accurate; and
• (5) that the witness did in fact confirm their deposition testimony was accurate.

In addition to establishing the details of the prior statement to credit, or build up, that statement, you must also ask the witness whether they in fact made the statement in order to use extrinsic evidence of the statement. There are three possible responses the witness can give to this question.

• First, the witness may admit making the prior inconsistent statement. If this happens, you are done. Although OEC 613(2) does not prohibit introduction of extrinsic evidence of a prior inconsistent statement after a witness admits making it, such evidence is cumulative and likely to be excluded under OEC 403. State v. Klein, 243 Or App 1, 13-14, 258 P3d 528, 534-35 (2011).
• Second, the witness may say they do not remember making the prior inconsistent statement. This response is the equivalent of a denial, and extrinsic evidence is allowed. State v. Bruce, 31 Or App 1189, 1194, 572 P2d 351, 353 (1977).
• Third, the witness may deny making the prior inconsistent statement, which of course permits the use of extrinsic evidence.

A common misconception regarding this step is that it renders the prior inconsistent statement substantively admissible. However, just because you can present extrinsic evidence of a prior inconsistent statement, it does not mean that the statement is admissible as substantive evidence. To be substantively admissible, the prior inconsistent statement must also be relevant, authentic, and either non-hearsay or subject to an exception to the hearsay rule. Common examples of substantively admissible prior inconsistent statements are prior sworn statements (OEC 801(4)(a)) and admissions of a party opponent (OEC 801(4)(b)).

3. Impeach

The final step is to impeach the witness with the prior statement. It is critical to use the actual words of the prior statement. If you are using a deposition or other transcribed testimony, be sure to let your opposing counsel know the page and line numbers you are reading from.

A common mistake made during this step involves the use of oral statements. If the witness gave an oral statement to another person who included it in a written report, you cannot impeach the witness by referring to that report. For example, if a detective prepared a report that includes the witness’s statements to that detective, it would be improper to ask “didn’t you say in the detective’s report that . . .” Assuming you otherwise laid a proper foundation for the statement, you could, however, ask “didn’t you say to the detective that . . .” The reason is that OEC 613 requires that the prior inconsistent statement be that of the testifying witness. In this example, the report is not the witness’s statement. The witness’s statement is their words to the author of the report.

Best Practices

There are several important principles to keep in mind that span each of the above three steps.

• First, impeach with only one fact at a time. Keeping it simple allows the jury to understand the difference between the two statements. Long, meandering statements may not be totally inconsistent and can easily cause you to lose the attention of the jury. In addition, impeaching a witness using one fact at a time gives you more opportunities to impeach, which further erodes the credibility of the witness.
• Second, when impeaching with prior sworn testimony, you must read the questions and answers verbatim. It is improper to summarize or paraphrase the testimony because the summary is not the witness’s actual statement.
• Third, be mindful of your tone. For example, if you want to show the witness is lying, project a sharp professional attitude and use questions that employ irony, curiosity, or surprise. If you want to show the witness is forgetful, use a more empa­thetic tone or allow the witness to explain the inconsistent statement. Your tone during impeachment should match your tone during closing arguments when you discuss the wit­ness’s testimony.
• Fourth, do not impeach with facts taken out of context. Remember, OEC 106 gives your opposing counsel the ability to require you to read the entire relevant portion of a statement, not just the portion you wish to use.
• Finally, be selective when choosing what facts to use as a basis for impeachment. Not only is extrinsic evidence of a prior inconsistent statement on a collateral matter inadmissible, impeachment on a collateral matter needlessly distracts the jury and undermines the power of your impeachment on more material issues.

Conclusion

When used properly, impeachment by prior inconsistent statement can change the outcome of a trial. A botched attempt, however, can leave you with egg on your face in front of the jury. Even worse, a failed attempt could look like you took a cheap shot at a witness. A short review of this funda­mental skill can get you a long way.

The use of email and other electronic forms of communication are ubiquitous in our society today. However, the conveniences these modern technologies offer also carry certain risks. While email, instant messaging and texts are certainly fast, they lack many of the formalities inherent with more traditional written mediums. When read in a vacuum, a poor attempt at humor or sarcastic aside can appear to take on a much more sinister meaning. Because email has become a regular part of our daily lives, it can be a rich source of evidence when conflicts arise and those conflicts lead to trial litigation. As a wise law professor once said, never write in an email something that you would not be comfortable seeing enlarged on a video screen and read aloud in a courtroom.[1]

Attorneys for one of the world’s largest law firms, DLA Piper, learned this lesson when emails surfaced in the midst of a civil dispute with a former client over more than $600,000 in past-due legal bills.[2] The former client countersued and offered internal firm emails that had been produced in discovery as evidence of a “sweeping practice of overbilling.” An attorney wrote in one email, “I hear we are already 200k over our estimate—that’s Team DLA Piper!” Another wrote, “[n]ow Vince has random people working full time on random research projects in standard ‘churn that bill baby!’ mode,” adding “[t]hat bill shall know no limits.”[3] In a statement from DLA Piper, the firm said that “[t]he emails were in fact an offensive and inexcusable effort at humor, but in no way reflect actual excessive billing.”[4] The firm reportedly settled the matter, but these damaging emails demonstrate how the informal nature of email correspondence can lead to serious civil liability.

More recently, internal emails between former members and executives of Dewey & Leboeuf, a now bankrupt law firm formerly headquartered in New York City, provided key evidence to support an indictment charging them with dozens of counts of larceny and securities fraud.[5] The four men charged include three attorneys, and the firm’s chief financial officer. In at least one of these emails, they “used the phrase ‘cooking the books’ to describe what they were doing to mislead the firm’s lenders and creditors in setting the stage for a $150 million debt offering.” [6] A handful of other former employees have since pleaded guilty in connection with the alleged accounting fraud scheme, but the four men believed to be at the center of the case continue to assert their innocence.[7] In response to the prosecutor’s claim that the men used “accounting gimmicks and fraud to cheat banks and investors,” defense counsel said that they “lacked criminal intent and the necessary understanding of ‘complicated accounting rules and regulations’ required to be guilty.”[8] Whether this case ultimately goes to trial remains to be seen; however, the defendants would almost certainly seek to admit other email evidence in their defense to put these seemingly damning emails into context and to support their claim of innocence.

The purpose for which an email is offered at trial can have a major impact on whether the court will receive it into evidence. Admission of a party opponent’s email correspondence presents little difficulty.[9] For example, plaintiff ’s counsel could easily have an email written by a company executive, describing his efforts to obtain funding through the use of allegedly false or misleading earnings reports, admitted against the executive in a fraud case. If instead defense counsel sought to offer a follow-up email written by that same executive, suggesting his belief that the earnings reports were accurate and negating the necessary showing of intent, it would likely trigger an objection on the basis of the so-called “self-serving” hearsay rule. Though sometimes used as a catch-all objection, “self-serving” is a proper objection only to a statement that purports to come in as a declaration against penal interest.[10] Because the admission of statements under this particular exception does not extend to non-self-inculpatory statements that were made along with or collateral to self-inculpatory statements, the follow-up email described in the example above may be excluded if offered pursuant to this exception.[11] Yet, there is no independent hearsay rule that self-serving evidence is inadmissible.[12] It could be said that all evidence offered by a party is self-serving in some respect—the self-serving nature of evidence is generally deemed only a matter of weight for the fact-finder to consider.[13] Nevertheless, a party who seeks admission of his or her own email correspondence may face a difficult challenge.

This article is meant as a guide to assist practitioners in navigating the rules of evidence and identifying bases on which to successfully admit a client’s own email evidence when it may be helpful to their client’s case. This article highlights just a few key evidentiary provisions that may serve as means for utilizing this potential source of beneficial evidence at trial.

Back to Basics

The difference between hearsay and prophecy is often one of sequence. Hearsay often turns out to have been prophecy.
– Hubert H. Humphrey

The exclusion of hearsay from admission at trial is one of the oldest and most fundamental rules of evidence. Out-of-court statements, both oral and written, are generally inadmissible if offered for their truth.[14] The reason for their exclusion is that hearsay statements are generally considered to be untrustworthy.[15] Yet, it has been said that the many exceptions essentially swallow the rule. And it is within these exceptions that practitioners must usually operate when seeking to admit a client’s own beneficial or exculpatory email evidence.

First, however, it is vital to determine the purpose for which the email is being offered into evidence. Out-of-court statements offered for things other than their truth are not subject to exclusion as hearsay. For example, an email that describes matters discussed during a particular meeting or event would be admissible as circumstantial evidence that the meeting or event took place. Other non-hearsay uses may include establishing the email’s effect on its recipient or merely that the email was sent or received by a particular party on a particular day.

Assuming instead that text of an email is being offered for its truth, counsel would need to identify a hearsay exception through which to admit it.[16] For emails generated in the course of operating a business, one possibility is for admission as a business record. Alternatively, an email may be offered as evidence of the declarant’s state of mind. The state-of-mind exception may be particularly useful in a criminal case for challenging whether a defendant had the necessary criminal intent; however, it carries with it certain limitations. Depending on the circumstances, an email may also be admissible once opposing counsel “opens the door,” as a prior consistent statement, or pursuant to the rule of completeness. Ultimately, helpful emails should be analyzed carefully and not overlooked merely because they appear to be inadmissible hearsay evidence.

Business as Usual

Information technology and business are becoming inextricably interwoven. I don’t think anybody can talk meaningfully about one without talking about the other. – Bill Gates

The use of email and other digital communication has become standard practice in the business world. It would appear to be common sense that workplace email communications naturally fit within the business records exception of the hearsay rule. That assumption would, however, be incorrect. While the hearsay exception for records of a regularly conducted activity has been held to encompass business emails in certain circumstances, the exception has not been held to apply to all email correspondence made in the regular course of business.

At its core, the business records exception allows for admission of records made (1) at or near the time of the act or event described in the record by someone with personal knowledge of the act or event, (2) in the regular course of business, and (3) as a regular part of the recorded activity.[17] routine record-keeping activities such as monthly inventory reports or daily sales logs are examples of records that fall squarely within the exception.[18] An important rationale for their admissibility is the assumption that records containing information needed for the efficient operation of a business are intrinsically accurate and trustworthy.[19] Email has not historically satisfied this test. In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit affirmed the trial court’s exclusion of an email sent by an employee to his superior, which according to the proponent of the evidence was kept in the regular course of business.[20] In its opinion, the court distinguished the email from a bookkeeper’s monthly inventory records and held that the use of email was not a similarly systematic business activity.[21] Moreover, the fact that an employee has the routine practice of drafting an email to memorialize regular daily activities may not be sufficient for admissibility.[22]

Of course, a lot has changed in the twenty years since the Ninth Circuit decision in Monotype Corp. PLC. Recognizing, however, that the practice of generating and systematically retaining email varies considerably from business to business, courts have not taken the position that all emails are admissible business records. In Rogers v. Oregon Trail Electric Consumers Cooperative, Inc., an Oregon district court judge recently adopted a test articulated by the Louisiana district court in a case arising from the Deepwater Horizon oil spill.[23] Under this test, the proponent must establish, in addition to the other requirements noted above, that the email was sent or received pursuant to a policy or business duty to report or record the information within the email.[24] Applying this test, the court denied admission of emails memorializing disciplinary actions at issue in the case. The court emphasized the informal nature of email correspondence and distinguished it from more formal disciplinary memoranda which carry a stronger presumption of accuracy and reliability.[25] Yet, there has been some movement toward the admission of emails under the business records exception.[26] In Volterra Semiconductor Corp. v. Primarion, Inc., for example, a California district court admitted an email, which included technical guidelines for a “flip chip technology” at issue in the case; without providing a detailed analysis, the court merely explains that the proponent of the email established the necessary foundation for admissibility at trial.[27]

It is important to note that the opponent of email evidence offered under the business records exception may still successfully prevent its admission by showing that the source of the email or the circumstances of its creation indicate a lack of trustworthiness. [28] For example, correspondence created in anticipation of litigation or containing errors or omissions revealed by reference to other admissible evidence may be deemed untrustworthy.[29] Its self-serving content is, however, not a sole basis for exclusion. Thus, the business records exception can potentially provide a means for admission of helpful email evidence. Once the proponent establishes that the email satisfies the business records exception’s foundational requirements and withstands challenges to trustworthiness—it can be used at trial for any purpose.

What’s on Your Mind?

In words are seen the state of mind and character and disposition of the speaker. – Plutarch

Email evidence can also be offered to establish a declarant’s then-existing state of mind.[30] Admission of hearsay evidence under Rule 803(3) requires a showing that the declarant’s state of mind is relevant, that the hearsay statement was made close in time to the thoughts or feelings expressed, and that there was little time for reflection.[31] Out-of-court statements describing a declarant’s “intent, plan, motive, design, (or) mental feeling” are all admissible hearsay.[32] The state-of-mind exception rests in part on the notion that there is no greater authority on a person’s thoughts and feelings than the person who experienced them.[33] In some cases, such evidence provides the best source of information to dispute an opponent’s version of events or circumstantial evidence of a party’s intent. Because jurors evaluate all evidence within the framework of a story or narrative to reach conclusions about the facts in a case and to ultimately decide “what happened,” there is tremendous value in being able to present state-of-mind evidence.[34] There is a compelling argument that fair and objective outcomes are more likely when fact-finders have full access to competing narratives and can test which best fits the evidence presented.[35]

Admissibility of statements offered under Rule 803(3) is, however, restricted in several important ways. The rule expressly excludes admission of a “statement of memory or belief to prove the fact remembered or believed.”[36] Thus, a statement that reflects what the declarant would have done had past circumstances been different or one that recalls the defendant’s state of mind during an earlier event would be inadmissible.[37] In Wilson v. Wilson, for example, the court excluded a party’s out-of-court statement that she would have divorced her former husband if she had known about his allegedly unauthorized transfers of assets to a revocable living trust.[38] Further, an expression of a person’s state of mind that suggests forward-looking intent may be admissible to prove that the person later acted in accordance with the statement, but it would not be admissible if offered to support backwards-looking inferences about past actions or events.[39] The defendant in United States v. Miller came up against this limitation when he unsuccessfully tried to admit his own statement as evidence of his earlier state of mind.[40] Approximately two hours after making a confession to federal agents, he told another agent that he was uncertain whether or not he had admitted to unlawful conduct during his earlier interview. He sought to offer this later statement at trial as evidence of his fatigue and confusion from being questioned and to support an argument that his prior admission was unreliable. The court excluded the statement, holding that the passage of time was too great between his statement of confusion and his earlier admission. The gap in time gave the defendant an opportunity to fabricate his explanation, creating a risk that it misrepresented his state of mind at the time he made his earlier admission.[41]

Because statements offered to establish a party’s own state of mind are intrinsically self-serving, they also carry added suspicion regarding trustworthiness. The rule itself is silent on this point, but courts have split on whether statements that otherwise fit the exception should be excluded based on concerns over the declarant’s candor.[42] In United States v. Di Maria, the Second Circuit held that courts cannot exclude a statement that fits within the state-of-mind exception on the basis that it is self-serving. The defendant in Di Maria sought to admit a statement he made to law enforcement at time of his arrest to establish his belief that cigarettes in his possession were bootleg rather than stolen. The court disregarded the government’s contention that the defendant’s statement was “an absolutely classic false exculpatory statement,” explaining that its truth or falsity was for the jury to decide. It concluded that admission of the defendant’s statement was particularly important, however suspect it may be, “when the government is relying on the presumption of guilty knowledge arising from a defendant’s possession of the fruits of a crime recently after its commission.”[43]

The Second Circuit’s reasoning in Di Maria has not been universally adopted. In United States v. Cianci, for example, the First Circuit affirmed exclusion of the defendant’s taped statements offered pursuant to Rule 803(3) based in part on an apparent lack of trustworthiness.[44] The defendant, former Mayor of Providence, Rhode Island, had been charged with more than three dozen counts related to an alleged public corruption scandal. During the course of the investigation, the defendant spoke to an undercover agent posing as a businessman who had contacted him to request a city contract. Referring the agent to another person in his administration, the defendant stated that “[n]o one will ask you for a thing” and “[if] anybody does . . . I’ll . . . have him arrested.”[45] The defendant argued that his statements, made during the period of time the charged conduct allegedly took place, reflected his state of mind and were admissible to prove his intolerance for corruption and his lack of criminal intent. The trial court excluded the statements, concluding that they applied at least in part to past acts of the defendant’s administration and were “to a large extent ‘self-serving’ attempts to cover tracks already made.”[46] The court’s finding that the statements were not wholly contemporaneous with the conduct at issue was central to its determination that the statements were unreliable and should be excluded. In affirming the decision, the appellate court notes that “[s]uch observations are well-established grounds for non-admission.”[47]

Because email is such a prevalent form of communication in our world today, it can be a great resource for establishing an individual’s intent or for challenging circumstantial evidence of a culpable state of mind. Even with the limitations imposed on admissibility pursuant to Rule 803(3), email correspondence may offer a means for explaining a client’s actions and for helping jurors construct a narrative that supports a more favorable theory of the case.

Point Counterpoint

Every truth has two sides; it is as well to look at both, before we commit ourselves to either. – Aesop

The exceptions described above allow for the affirmative presentation of email evidence, but evidence entered by an opposing party can also provide a trigger for admission of otherwise inadmissible hearsay. A party may, for example, introduce prior consistent statements to rebut cross examination that suggests the witness is providing false or misleading testimony.[48] Alternatively, admission of a written or recorded statement by one party may allow for introduction by an opposing party of another part of the same statement or another written or recorded statement “that in fairness ought to be considered at the same time.”[49] When damaging email evidence is offered by an adverse party, these rules can provide effective means for giving the fact-finder a fuller picture and putting harmful evidence into context.

The first of these is Rule 801(d)(1)(B), which allows for admission of prior consistent statements. It applies when a witness is impeached on cross examination, raising questions about the credibility of their testimony. Counsel can then offer evidence regarding out-of-court statements made prior to the time that the supposed motive to lie arose to corroborate the witness’s in-court testimony.[50] Importantly, the foundational requirements that the witness is first impeached by an express or implied charge of recent fabrication or improper motive and that the prior statement was made before the existence of the motive to fabricate are strictly applied.[51] When these situations do arise, emails can provide powerful documentary evidence that not only restores a key witness’s credibility but also puts before the fact-finder evidence that may not otherwise be admissible.

Beneficial email evidence may also be admitted pursuant to the “opened door” rationale.[52] Though often confused with Rule 801(d)(1)(B), it is a separate but related doctrine that allows a party to introduce an entire out-of-court statement once an adversary introduces only a portion for purpose of impeachment.[53] This doctrine applies to both written and oral out-of-court statements offered as evidence at trial. Thus, for a witness impeached with a prior inconsistent statement, it is sufficient that the reminder of the document or statement from which the impeachment evidence was drawn has “significant probative force bearing on credibility apart from mere repetition” and “place[s] the inconsistencies . . . in a broader context, demonstrating that the inconsistencies were a minor part of an otherwise consistent account.”[54] unlike Rule 801(d)(1)(B), however, the witness need not be impeached “by an express or implied charge of recent fabrication or improper motive.”[55] Thus, an entire email chain may be admissible if an opposing party uses only a portion for an impeachment purpose, thereby creating a misimpression regarding its significance.[56] An “opposing party may not pick and choose among prior statements to create an appearance of conflict and then object when this appearance is rebutted by means of a fuller version of the same prior statements.”[57] Of course, only the remaining portion of the statement that clarifies or provides necessary context for the portion used for impeachment is admissible pursuant to the opened door rationale. Any other portion would only be admissible if it fit within another exception or if relevant for a purpose other than to prove the matter asserted.[58]

One final method for responding to an opponent who enters only a portion of an email into evidence is through the principle of completeness.[59] Admissibility pursuant to the principle of completeness is based on the “misleading impression created by taking matters out of context [and] the inadequacy of repair work when delayed to a point later in the trial.”[60] “When one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant . . . .”[61] This rule functions similarly to the opened door rationale but differs in a few important ways. First, it is not limited to evidence offered for purposes of impeachment. Second, it can only be used for admission of written or recorded statements—a difference that does not affect admissibility of email evidence. Finally, courts will not generally admit evidence pursuant to the principle of completeness if it is otherwise inadmissible hearsay.[62] However, there is some authority to suggest that this limitation should not be strictly applied.[63] As the court in United States v. Sutton explains, “[the principle of completeness] can adequately fulfill its function only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously.”[64]

Only through careful analysis of an opponent’s exhibits, and a deep understanding of how they fit into the case as a whole, can counsel take full advantage of these exceptions to the hearsay rule. It is not enough to prepare only one’s own presentation of evidence and witnesses. Counsel must also know what to expect from the opposition. By fully preparing, counsel can avoid missing an opportunity for getting helpful and otherwise inadmissible email evidence into jurors’ hands and putting what may be construed as harmful evidence into a favorable context.

Conclusion

Because of the steady rise in the use of email and other electronic correspondence in our society, email evidence is becoming increasingly prevalent in the world of litigation. Trial counsel must devote considerable time and resources reviewing this data and analyzing its potential uses at trial. Getting an early start on what can be a monumental amount of information is essential, and identifying key email evidence is only the first step. When faced with a client’s embarrassing or harmful emails, it can be particularly important to analyze and understand how the client’s helpful email evidence may be admissible to place it into context. A firm grasp of the rules that apply to email evidence is vital for preparing a successful case and overcoming the so-called “self-serving” hearsay objection.

 

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[1] Credit to Toni Berres-Paul, Professor of Legal Analysis and Writing, at Lewis & Clark Law School.
[2] Sharon D. Nelson & John W. Simek, Churn That Bill, Baby! Overbilling in Law Firms, Law Practice Magazine, September/October 2013.
[3] Id.
[4] Molly McDonough, DLA Piper: ‘Churn that bill’ email was ‘inexcusable effort at humor’, ABA JournaL, Mar. 27, 2013, http://www.abajournal.com/news/article/dla_piper_churn_that_bill_email_was_inexcusable_ effort_at_humor.
[5] Matthew Goldstein, 4 Accused in Law Firm Fraud Ignored a Maxim: Don’t Email, the New York Times, Mar. 6, 2014, http://dealbook.nytimes. com/2014/03/06/former-top-leaders-of-dewey-leboeuf-are-indicted.
[6] Id.
[7] Bernard Vaughan, Former Dewey Law Firm Leaders Ask Judge to Dismiss Criminal Case, Insurance Journal, July 15, 2014, http://www.insurancejournal.com/news/east/2014/07/15/334582.htm.
[8] Id.
[9] See Fed. R. Evid. 801(d)(2). Parallel citations in the Oregon Rules of Evidence to the Federal Rules of Evidence cited in this article can be found at ORS 40.010 et seq.
[10] See Fed. R. Evid. 804(b)(3).
[11] See Williamson v. United States, 512 U.S. 594 (1994).
[12] See Wright v. Swan, 261 Or. 440, 447–48 (1972).
[13] Id. at 451.
[14] Fed. R. Evid. 802.
[15] See Chambers v. Mississippi, 410 U.S. 284, 298 (1973).
[16] For purposes of this article, it is assumed that the proponent of the email evidence is able to first authenticate it. Federal Rule of Evidence 901(a) requires only “evidence sufficient to support a finding that the item is what the proponent claims it is.” An email may be authenticated by reference to its “appearance, contents, substance, internal patterns, or other distinctive characteristics.” Fed. R. Evid. 901(b)(4).
[17] Fed. R. Evid.803(6).
[18] See Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443, 450 (9th Cir. 1994).
[19] United States v. Miller, 830 F.2d 1073, 1077 (9th Cir. 1987).
[20] Monotype Corp. PLC, 43 F.3d at 450.
[21] Id.
[22] See 4 Christopher B Mueller & Laird C. KirkPatrick, Federal evidence § 8:79 (4th ed. 2014) (citing Monotype Corp. PLC for its conclusion that emails not “adapted to permanent and more systematic recordkeeping purposes” do not satisfy the “regular practice” requirement of the rule).
[23] Rogers v. Oregon Trail Electric Consumers Cooperative, Inc., 2012 U.S. Dist. LEXIS 65883, *24–27 (D. Or. May 8, 2012) (citing In re Oil Rig “Deepwater Horizon”, 2012 U.S. Dist. LEXIS 3406 (E.D. La. Jan. 11, 2012)).
[24] Id.
[25] Id. at *27–28.
[26] Id. at *23–24 (citing cases in the Oregon and California district courts).
[27] Volterra Semiconductor Corp. v. Primarion, Inc., 2011 U.S. Dist. LEXIS 102295, *22 (N.D. Cal. Sept. 12, 2011).
[28] Fed. R. Evid. 803(6)(e).
[29] See e.g., United States v. Olano, 62 F.3d 1180, 1205–06 (9th Cir. 1995).
[30] Fed.R. Evid. 803(3); see also Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 452 F. Supp. 2d 772 (W.D. Mich. 2006) (admitting email evidence to establish the declarant’s confusion).
[31] United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980) overruled on other grounds by United States v. Bright, 730 F.3d 1255 (1984); United States v. Emmert, 829 F.2d 805 (9th Cir. 1987).
[32] Ponticelli, 622 F.2d at 991.
[33] See id. (noting that a declarant “presumably knows what his thoughts and emotions are at the time of his declarations”).
[34] See Eleanor Swift, Narrative Theory, FRE 803(3),and Criminal Defendants’ Post-Crime State of Mind Hearsay, 38 seton haLL L. rev. 975, 980 (2008).
[35] Id. at 983–84 (citing Justice Souter’s opinion in Old Chief v. United States, 519 U.S. 172 (1997)). In Old Chief, the Court discusses the trial court’s role in making evidentiary rulings and the importance of “an appreciation of the offering party’s need for evidentiary richness and narrative integrity in presenting a case.” 519 U.S. at 183.
[36] Fed. r. evid. 803(6)(e) (exception for statements that relate “to the validity or terms” of a declarant’s will); United States v. Sayakhom, 186 F.3d 928, 937 (9th Cir. 1999) (holding defendant’s “attempt to introduce statements of her belief (that she was not violating the law) to prove the fact believed (that she was acting in good-faith) is improper”).
[37] See e.g., Wilson v. Wilson, 224 Or. App. 360, 365–66 (2008).
[38] Id.
[39] Shepard v. United States, 290 U.S. 96, 104–06 (1933); United States v. Miller, 874 F.2d 1255, 1263–65 (9th Cir. 1989).
[40] Miller, 874 F.2d at 1264.
[41] Id.
[42] Compare United States v. Di Maria, 727 F.2d 265 (2d Cir. 1984) (noting that only the business records and catch-all exceptions expressly include express language regarding trustworthiness) with United States v. Cianci, 378 F.3d 71 (1st Cir. 2004) and United States v. Naiden, 424 F.3d 718 (8th Cir. 2005).
[43] Di Maria, 727 F.2d at 270–72.
[44] Cianci, 378 F.3d at 105–07.
[45] Id. at 105.
[46] Id. at 106.
[47] Id. at 106–07.
[48] Fed. R. Evid. 801(d)(1)(B).
[49] Fed. R. Evid. 106.
[50] United States v. Collicott, 92 F.3d 973, 979 (9th Cir. 1996).
[51] Id. (citing Tome v. United States, 513 U.S. 150 (1995)).
[52] Id. at 979–80; see also United States v. Payne, 944 F.3d 1458, 1471, n. 12 (9th Cir. 1991).
[53] Collicott, 92 F.3d at 980, n. 3.
[54] Payne, 944 F.3d at 1471 (internal quotation omitted).
[55] Collicott, 92 F.3d at 980, n. 5 (listing five main forms of impeachment: (1 prior inconsistent statements; (2) bias; (3) attacking witness’s character for truthfulness; (4) attacking witness’s perception or memory; and (5) contradicting witness’s testimony).
[56] Counsel should be mindful that email chains often contain hearsay within hearsay. Each layer of hearsay must independently fit within a hearsay exception to be admissible. Fed. r. evid. 805.
[57] See Collicott, 92 F.3d at 980–81 (quoting United States v. Tarantino, 846 F.2d 1384, 1411 (D.C. Cir. 1988)).
[58] Id. at 981, n.8.
[59] Fed. r. evid. 106.
[60] Id., Advisory Committee Notes.
[61] Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
[62] Collicott, 92 F.3d at 983.
[63] Id. (citing United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986)).
[64] Sutton, 801 F.2d at 1368.