Flint and the Fifth Amendment: Deposition Testimony Does Not Always Compel Trial Testimony

Posted On Monday, November 14, 2022

Takeaway: A federal appeals court held that a witness does not waive their Fifth Amendment privilege against self-incrimination at trial by giving deposition testimony in the same case.

In a decision with potential far-reaching implications, the Sixth Circuit federal appeals court this week preserved a witness’s right against self-incrimination at trial in a civil case where deposition testimony had previously been given. Several former Michigan government officials called as witnesses in the Flint water crisis trial had unsuccessfully attempted to invoke their Fifth Amendment privilege; on appeal, the court found that the trial judge erred by ordering them to testify.

The Trial Court Held That Deposition Testimony Waived Fifth Amendment Protection At Trial

Residents in Flint, Michigan sued two consulting firms that performed work for the city, accusing them of polluting the city’s drinking water with lead, resulting in one of the most horrific public health crises in recent history. Prior to trial, former government officials, including the former Michigan governor Rick Snyder, his senior advisor Richard Baird, emergency managers Gerald Ambrose and Darnell Earley, and Department of Public Works Director Howard Croft, all testified at deposition about their involvement in the scandal.

At trial, former governor Snyder attempted to assert his Fifth Amendment privilege against self-incrimination. The trial judge refused to honor this request and ordered him to testify, reasoning that his prior deposition testimony constituted a waiver of this privilege at trial.

The Appellate Court Said…Not So Fast!

In a fascinating split ruling, the Sixth Circuit federal appeals court overturned the lower court’s decision, holding that a witness does not waive their privilege against self-incrimination by giving deposition testimony in the same case. The appellate court reasoned that a deposition and a trial are not the same proceeding, and the Fifth Amendment privilege “is to be interpreted broadly… in favor of the right it was intended to secure.” 

The Fifth Amendment privilege is implicated when a witness testifies and is then subject to cross-examination. However, the appellate court distinguished that a deposition and a trial are separate events, and each time a witness testifies and is cross-examined constitutes a “single testimonial event,” separately implicating the witness’s protection from self-incrimination. A waiver of the Fifth Amendment privilege in one event does not automatically waive the privilege in a subsequent proceeding. Explaining the logic driving this decision, the court held that the witnesses who sought to invoke their privilege against self-incrimination “may face further incrimination during trial by repetition of their testimony, the possibility of further disclosure, and the threat of perjury. The purposes of a deposition and trial serve different ends.”

Stay Tuned For Further Developments

Although the proceedings in this case ended in a mistrial, further trials are scheduled. The appellate court’s ruling is expected to protect the Fifth Amendment rights of the former government officials called as witnesses in these future trials, and it remains to be seen how this decision could affect other civil cases in the future.

The opinion, published on November 8, 2022, can be read here.