In many Washington domestic violence cases, a person faces criminal charges as well as a petition for a civil protection order. When there are “parallel” civil and criminal proceedings, there would be a risk that the criminal defendant may be compelled to incriminate himself or herself in the civil proceedings if not for the protections of the Fifth Amendment. In addition to protecting the defendant during the criminal trial, the Fifth Amendment also allows a person to refuse to answer official questions in other proceedings if the answer might tend to incriminate the person in future criminal proceedings. Washington courts do not automatically delay the civil case until the criminal case is over. Instead, they apply a balancing test based on several factors identified in King v. Olympic Pipeline Company, LLC to determine if the civil case should be stayed.
King was a wrongful death case following a pipeline rupture that resulted in a fire that killed three people. A criminal investigation focused partly on some of the defendants. Those defendants sought a limited partial stay of discovery in the civil case to preserve their Fifth Amendment right and the right to fully defend themselves in the civil case. The trial court denied their motion and the appeals court reviewed.
The Washington Appeals Court adopted factors considered by federal courts in parallel proceedings, noting that it was not necessarily an exhaustive list. The court must balance the factors in light of the circumstances and competing interests of the case.