Fifth Amendment assertions to discovery requests rejected

Where this court previously ruled that husband could not assert his Fifth Amendment privilege in response to wife’s interrogatories, requests for documents and requests for admissions related to his alleged adultery, the court affirms its previous order and declines to modify or vacate it.

Background

Wife alleged in her divorce complaint that husband, a high school principal, committed adultery with a paramour, who taught at the same school.

Wife issued interrogatories, two sets of requests for the production of documents and 10 requests for admissions. All of these sought information related in some way to either adulterous sex, the paramour or both. Husband responded by invoking his Fifth Amendment privilege from self-incrimination.

Wife’s motion to compel asked the court to overrule the Fifth Amendment objections “or alternatively to limit the objection to only those acts occurring within the twelve months preceding his answers.”

At the hearing motion, husband noted wife alleged he had engaged in sexual activity in a public place – the high school – he could be prosecuted for sodomy, obscene sexual display, nude photographs, obscene performances “‘and on and on and.’ … [H]is argument was made as a blanket assertion rather than tailored to any of the individual discovery requests or a particular document withheld.

“Neither did Husband advance any argument as to how a prosecutor starting with a supposed admission of adulterous sex occurring more than one year prior could launch a prosecution for a current violation of any of the statutes cited.”

The court granted the motion. Husband moved for reconsideration. He “contended the court erred in three respects:

“1) by speculating as to whether prosecution was probable rather than conducting an analysis as to whether prosecution was possible;

“2) failing to consider that the allegation Husband had sex with the paramour on school property showed a violation of the statutes proscribing contributing to the delinquency of a child, obscene sexual display, and obscene performances; and

“3) failing to consider that Husband’s answer to Interrogatory #20 could lead to an investigation implicating him in recent offenses involving contributing to the delinquency of a child, obscene sexual display, and obscene performances.”

Relevant law

“‘There is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings. The privilege must be specifically claimed on a particular question and the matter submitted to the court for its determination of the validity of the claim.’ … When prosecution for a crime is barred by the statute of limitations, a person may be compelled to answer questions concerning it. …

“In Virginia, with certain exceptions, the statute of limitations for misdemeanors is one year. Code § 19.2-8. Because the court’s order overruled the Husband’s assertion of privilege only as to those actions committed more than one year prior to his answer, the court’s ruling meant that the Husband’s compelled answers could not support a conviction of any misdemeanor, including adultery.

“Yet the privilege also extends to answers which, though they may not directly support a conviction for a crime, ‘would furnish a link in the chain of evidence needed to prosecute’ the person for a crime. … However, ‘this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself – his say-so does not of itself establish the hazard of incrimination.’”

The Virginia Supreme Court has ruled that to “sustain the privilege: ‘(1) that the trial court be shown by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime … and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case. It is in this latter connection, the credibility of the suggested connecting chain, that the reputation and known history of the witness may be significant.’ …

“‘The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.’”

Application

Wife’s interrogatory #20 asks whether husband has had extra marital sex since Jan. 1, 2016, and if so, to “state certain information, to wit: the identity and contact information of the person; how and where Husband first met the person; the date, time, and location where each ‘sexual relation’ occurred; the identity and contact information of any person having knowledge of a particular sexual relation; and the current status of the relationship with the person.

“This court first finds Husband’s criminal prosecution arguments as to Code§ 18.2-387.1 unpersuasive. That section, which proscribes obscene sexual displays, states ‘Any person who, while in any public place where others are present, intending that he be seen by others, intentionally and obscenely as defined in § 18.2-372, engages in actual or explicitly simulated acts of masturbation, is guilty of a Class I misdemeanor.’ The interrogatory does not request information about masturbation and instead is limited to ‘sexual relations.’

“While Husband derides the court’s prior finding that his fear of prosecution was remote and speculative as being ‘raw speculation,’ … any fault in the court’s analysis lies with Husband. Husband has the burden of showing that a privilege applies.” Husband must present an argument “‘how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime.’ …

“This Husband never undertook to do. Instead, he asserts as mere ipse dixit that his answers will furnish a ‘potential link in the chain towards prosecution.’ …  Husband states the finding to be made but provided hardly anything of substance as to how him having to state where and when he had adulterous sex would link Husband to an illegal abortion or a public act of sodomy, etc.”

The court affirms its prior ruling regarding husband’s Fifth Amendment claim of privilege as to the interrogatory at issue, as well as the request for documents and admissions.

O’Rourke v. O’Rourke, Case No. CL19003659-00, Feb. 24, 2021, Loudon County Cir. Ct. (Fisher). Gerald R. Curran for plaintiff, John C. Whitbeck Jr. for defendant. VLW 021-8-032, 14 pp.