While this is not a family-law opinion, family-law attorneys sometimes see parties assert their Fifth Amendment privilege against self-incrimination. This case addresses a question of first impression in Tennessee that should interest Tennessee family-law attorneys.

Facts: Daughter attended a three-day wakeboarding competition on Center Hill Lake with three friends. The group camped on a bluff overlooking the lake.

Daughter was not at her campsite when her friends awoke one morning. Later that day, two fishermen found Daughter’s body floating in a cove close to the bluff where she had been camping.

Law enforcement authorities investigated the incident and brought no criminal charges relating to Daughter’s death.

Daughter’s mother brought a wrongful death action against Daughter’s friends alleging that they caused Daughter’s death.

One of Daughter’s friends, Hannah, asserted her Fifth Amendment right against self-incrimination in response to 27 of the 35 factual allegations of the complaint, 10 out of 14 interrogatories, all requests for production of documents, 91 out of 100 answers in her deposition on written questions, and all requests for admissions.

Hannah moved for summary judgment.

Mother asked the trial court to draw an adverse inference against Hannah because of her repeated assertions of her right against self-incrimination. The trial court declined to do so and granted summary judgment for Hannah.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

The Fifth Amendment to the U.S. Constitution provides that no person can “be compelled in any criminal case to be a witness against” themselves. Federal courts have interpreted the Fifth Amendment to extend to any proceeding, including civil trials.

Tennessee Rule of Civil Procedure 8.04 provides that allegations in a pleading to which a responsive pleading is required are admitted when they are not denied in the responsive pleading, except in limited circumstances not applicable here.

This case presents an issue of first impression in Tennessee: does the assertion of the Fifth Amendment privilege in an answer filed in a civil case operate as an admission for Rule 8.04?

Federal caselaw addressing this issue provides that when a defendant in a civil proceeding invokes the Fifth Amendment privilege against self-incrimination instead of answering the allegations in a complaint, the trial court should treat the claim of privilege as a specific denial and require the plaintiff to prove the issue covered by the denial.

Citing this guidance from federal courts, the Court held that Hannah’s assertion of her Fifth Amendment privilege in answering the complaint could not, in and of itself, be taken as an admission of the allegations under Rule 8.04.

This does not end the inquiry, however. Federal caselaw clarifies that the assertion of the privilege does not give the defendant absolute discretion to circumvent Rule 8. If the trial court determines the assertion of the privilege is not justified, the trial court may require a party to answer.

Because the trial court did not determine whether the assertion of the privilege was appropriate, the Court ruled:

Here, the trial court did not make an independent assessment of the validity of [Hannah’s] indication of the privilege as to the specific allegations of the complaint and, if the claim was not valid, allow her the opportunity to admit or deny the allegation; if she then refused to admit or deny the allegation, Rule 8.04 would apply and deem the allegation admitted. On the record before us, there is no motion to deem the allegations of the complaint admitted or asking the court to make a determination of the validity of the claim as to specific allegations. Upon a proper motion being filed, the court should make such a determination.

When a party invokes the Fifth Amendment privilege in a civil case, the trial court may draw a negative inference from the indication of the privilege when there is independent evidence of the fact to which a party refuses to answer by invoking his or her Fifth Amendment privilege. In instances where there is no corroborating evidence to support the fact alleged, no negative inference is permitted.

The plaintiff must present corroborating evidence regarding the specific facts to which the defendant refuses to answer. In determining whether a negative inference is permissible, the privilege analysis applies on a question-by-question basis and, therefore, the privilege attaches only to the question asked and the information sought by that question.

Here, because the trial court found that Mother produced no evidence that Hannah caused any harm to Daughter, it declined to make an adverse inference because of Hannah’s assertion of her privilege against self-incrimination.

The Court reversed on this issue, too:

[T]he trial court determined the issue or negative inference as a blanket matter, weighing evidence and determining that [Mother] was not entitled to a negative inference as to any fact for which the privilege was asserted; the court used an incorrect analysis in its decision.

On remand, if presented with the question of whether [Mother] is entitled to a negative inference, the trial court should analyze the specific fact and determine whether there is independent, corroborating evidence of that fact. Further, the trial court is the ultimate arbiter of the Fifth Amendment privilege; it is for the court to say whether [the party’s] silence is justified, and the court has the power to compel an answer from one invoking the Fifth Amendment privilege if it clearly appears to the court that the person invoking the privilege is mistaken.

Concurring opinion: Judge McBrayer wrote separately to concur in the reversal of summary judgment but to explain that he would not have addressed Hannah’s invocation of her Fifth Amendment privilege against self-incrimination because Mother never challenged the sufficiency of Hannah’s answer to the complaint or her responses to discovery. Judge McBrayer notes that if a party does not object to the propriety of claiming the privilege, the trial court may assume that an answer or response cannot be compelled.

Smith ex rel. Agee v. Palmer (Tennessee Court of Appeals, Middle Section, January 30, 2019).