The Fifth Amendment, Washington Domestic Violence, and Protection Orders

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.

The court must give “serious consideration” to the extent to which the Fifth Amendment privilege is implicated.  In King, the appeals court noted that the absence of an indictment made it more difficult to analyze the potential criminal jeopardy.

The court must also consider similarities between the civil and criminal cases.  The more similar the cases, the more appropriate a stay would be. If the issues do not overlap, there is no danger of self-incrimination.

The court should also consider the status of the criminal case.  The argument for a stay is greater if the defendant is under indictment for a serious criminal offense, but ultimately the question is whether the defendant is in real danger of self-incrimination.  Lack of indictment could weigh against a stay, if it suggests the criminal matter will not be resolved for a long time.

The court must also consider the interests of the plaintiffs and the potential prejudice that may result from the delay.  In some cases, allowing the criminal case to proceed first could benefit the plaintiff by resolving issues or increasing the possibility of settlement.  However, delay could result in lost memories and witnesses.

Another factor is the burden on the defendant, including the diversion of resources needed to defend two separate cases and the likelihood that the criminal prosecution may benefit from the civil discovery.  In King, the defendants argued that the invocation of the privilege could help prosecutors identify areas for investigation.  Pretrial publicity could weigh in favor of either side.

The court should also consider the efficient use of judicial resources and convenience of the court, including the potential for duplicative efforts and inefficiencies.  This factor may favor a stay because civil discovery should proceed more quickly after the criminal issue is resolved.

The court should also consider the interests of non-parties, including other targets of the investigation who may be witnesses in the civil case.

The final factor is public interest.  The appeals court noted there are two relevant forms of public interest.  The first is public welfare.  If the government files the civil case to protect the public, then the public interest may favor denying the stay to prevent public harm.  In King, however, the interests at stake were private.  There is also a public interest in judicial system integrity which is served by balancing the factors.

The important takeaway from King is the list of factors.  These factors can be applied in any civil case where there is also a related criminal proceeding, including civil protection order cases.  The factors do not always weigh in favor of granting a stay, as seen in a case involving a domestic violence protection order (DVPO).

In that case, a man appealed a DVPO on the grounds the trial court abused its discretion and violated his due process rights by entering the order before his criminal case was resolved.  He had received four continuances before the order was entered.

The appeals court applied the factors from King.  It found the Fifth Amendment rights were implicated less in a DVPO than in other cases, because the parties do not have a right to discovery or to compel live testimony.  The defendant would not have to invoke his Fifth Amendment privilege unless the court allowed live testimony or discovery, which did not occur in this case.

The trial court found the two cases were aligned because they both involved domestic violence, but the appeals court found a court could reasonably give minimal weight under this factor due to the lessened danger of self-incrimination.  The appeals court made a similar finding on the factor related to the status of the criminal case.  The appeals court found the plaintiff had a strong interest in proceeding expeditiously because the Domestic Violence Prevention Act (DVPA) was enacted to provide victims quick and easy access to the courts.

Additionally, delaying a DVPO puts victims and families at risk and they may abandon their petitions because of the delay.  A court could find the plaintiff’s interest factor weighed strongly in opposition to a stay.  In considering the burden on the defendant, the appeals court found the nature of the DVPO proceedings meant they did not lead to an adverse inference or provide a road map.  The appeals court found the burden of defending both cases could reasonably be considered “slight” as compared to the hardships a delay could cause the petitioner.  The convenience of the court factor could reasonably weigh in favor of the petitioner because the alternative to allowing the DVPO proceedings would be temporary orders that would further congest the courts.

Furthermore, the DVPA does not allow relief to be denied or delayed on the grounds relief is available in another action.  As to the nonparty factor, the appeals court found the children of the parties had an interest that could weigh against a stay.  A court could reasonably conclude the public interest weighs strongly in favor of a stay due to the purpose of the DVPA.  The appeals court found no abuse of discretion in the trial court’s denial of the stay.

Although the factors must be applied to the facts and circumstances of each case, the appeals court’s analysis suggests that the factors will tend to weigh against a stay in DVPO cases as a result of the special proceedings.  If you are facing a situation involving a criminal case and a civil protection order, the civil protection attorneys at Blair & Kim, PLLC, have the experience to help you through both cases.  Call us at (206) 622-6562 to schedule a consultation.

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