When a witness invokes the Constitution’s Fifth Amendment privilege against self incrimination in civil litigation, the court may allow an “adverse inference” that the witness did so because he is guilty. Furthermore, most federal courts to address the issue have held that, where the witness is not a party to the litigation, but his former employer is, the adverse inference can extend to the former employer for its exemployee’s election to remain silent. Recently, in Coquina Investments v. TD Bank, N.A.,1 a case of first impression in the Eleventh Circuit, the Court validated this approach.
A. Invocation of the Fifth Amendment by a Nonparty Witness
Courts have broad discretion to permit a jury to draw an adverse inference against a party in a civil trial based on a nonparty witness’s invocation of the Fifth Amendment if there is a sufficiently close relationship between the party and the nonparty witness.2
Because a nonparty could choose to remain silent for a variety of reasons, a nonparty’s invocation of the privilege against selfincrimination in a civil proceeding raises concerns regarding “the reliability of the adverse inference drawn from his silence.”3 Due to the adverse inference’s potential for inaccuracy, courts have determined that the admissibility of a nonparty’s invocation of the Fifth Amendment should be made on a “case by case basis.”4 In Coquina Investments, the Eleventh Circuit agreed and adopted the four prong test first established by the Second Circuit in LiButti v.U.S.5 The factors considered under the test include:
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