Contempt and the Fifth Amendment

The Fifth Amendment of the United States Constitution states “no person shall be compelled in any criminal case to be a witness against himself.”  This right is commonly known as the right against self-incrimination or the right to remain silent.  Punitive contempt, by definition, includes a threat of jail time.  Based on this quasi-criminal aspect, it prompts a person’s Fifth Amendment Right to remain silent. The Colorado Supreme Court has held that possible risk of imprisonment triggers the 5th Amendment right against self-incrimination.  People v. Razatos, 699 P.2d 970 977 (Colo. 1985).  This has come up recently in various circumstances.

Colorado Rules of Civil Procedure Rule 16.2 requires an ongoing duty of continuous disclosure.  This duty can directly conflict with a person’s right to remain silent.  Recently, various document requests, disclosures and interrogatories have been propounded on people facing contempt.  This begs the question of what to do, if you answer the questions and provide the documents – you are waiving your right to remain silent and may be assisting in the prosecution of yourself for contempt.

An individual may resist a request for documents on the ground that the act of production will itself be incriminating.  Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).  In Fisher, the Court went through a detailed analysis of what documents cannot be compelled and what documents are subject to disclosure.  It stands that documents that are not created by the Defendant can be compelled, as there is no compelled testimony against oneself.  The mere act of producing documents is not always testimonial in nature nor is it incriminating.  In order to determine if the compelled documents are testimonial and/or incriminating, Fisher held “resolution may instead depend on the facts and circumstances of particular cases or classes thereof.”  Id. at 410.

The privilege against compelled self-incrimination does not protect the content of any voluntarily prepared business record.  United States v. Doe, 465 U.S. 605, 610-611, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984).  These documents can be compelled by subpoena from alternate sources, or from the individual themselves so long as that individual does not refuse.  Other documents that are created by the Defendant such as answers to interrogatories, Sworn Financial Statements, self-prepared tax returns, etc., are subject to that person’s Fifth Amendment right against self-incrimination.  Constitutional rights trump state court rules, and therefore, a person who is invoking their right to remain silent can refuse to answer questions and provide documents, even if a state court rule may require it.  However, if you waive the right to remain silent, it is waived in its entirety and the requested questions and documents must be provided, if they are appropriate.

This brings up another question:  Does a contempt proceeding allow for discovery to be propounded?  Discovery, most typically Interrogatories and Requests for Production of Documents, is only permitted: “after an initial status conference or as agreed to in a Stipulated Case Management Plan filed pursuant to (c)(1)(E).”  See C.R.C.P. Rule 16.2(f)(3).  Contempt hearings do not trigger normal court proceedings, which involve a Case Management Plan and Initial Status Conference.  Therefore, one can argue that discovery is not permitted in a typical contempt proceeding, unless authorized by the Court.

The information provided above is general in nature, is not intended as legal advice for your particular situation and should not be relied upon without first consulting with legal counsel.  Martin Law Firm provides legal representation in divorce and family law matters in the Denver Colorado metro area and will tailor its services to your particular needs and unique circumstances.