EPSTEIN
page 5 / 3016 . OCR, unverified
whereby a plea was entered in the 15 Judicial Circuit action.
a.
Application of the 51h Amendment
Next, the Fifth Amendment privilege against self-incrimination "permits a person not to
answer official questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings." Edwin v.
Price 778 F.2d 668, 669 (11i' Cir. 1985), citing Lefkowitz v. Turley 414 U.S. 70, 77, 94 S.C.
316, 322 (1973). See also Ohio v. Reiner 532 U.S. 17, 21, 121 S.Q. 1252 (2001)(The Fifth
Amendment privilege is also available to those who claim innocence. One of the Fifth
Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be
ensnared by ambiguous circumstances."); Mallov v. Hogan, 84 S.Ct. 1489, 1495 (1964Xthe
Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process
Clause of the Fourteenth Amendment - "[i]t would be incongruous to have different standards
EFTA00067389
--- PAGE 8 ---
Case 9:08-cv-80119-KAM
Document 65
Entered on FLSD Docket 03/25/2009
Page 8 of 15
Page 8
determine the validity of a claim of privilege based on the same feared prosecution, depending
on whether the claim was asserted in state or federal court."); Kastigar v. U.S., 406 U.S. 441,
444-45, 92 S.Ct. 1653 (1972)(The Fifth Amendment privilege "can be asserted in any
proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it
protects against any disclosures which the witness reasonably believes could be used in a
criminal prosecution or could lead to other evidence that might be so used. This Court has been
zealous to safeguard the values which underlie the privilege." (Emphasis added)).
The United States Supreme Court made it clear that the scope of the Fifth Amendment
Privilege includes the circumstances as here "the act of producing documents in response to a
subpoena (or production request) has a compelled testimonial aspect." United States v. Hubbell
530 U.S. 27, 36, 120 S.Ct. 2037, 2043 (2000); see also Fisher v. United States, 425 U.S. 391
(1976); McCormick on Evidence, Title 6, Chap. 13. The Privilege Against Self-Incrimination,
ยง138 (61h Ed.). The privilege against self-incrimination may be asserted during discovery when a
litigant has "reasonable grounds to believe that the response would furnish a link in the chain of
evidence needed to prove a crime against a litigant." A witness, including a civil defendant, is
entitled to invoke the Fifth Amendment privilege whenever there is a realistic possibility that the
answer to a question could be used in anyway to convict the witness of a crime or could aid in
the development of other incriminating evidence that can be used at trial. Id; Pillsbury Company
v. Conboy, 495 U.S. 248, 103 S.Ct. 608 (1983).
Certainly, if the USAO decides to prosecute EPSTEIN for an alleged violation of the
NPA, it would undoubtedly be able to use information obtained during discovery against him or
use that information to aid in the development of other evidence against him at a criminal trial.
EFTA00067390
--- PAGE 9 ---
Case 9:08-cv-80119-KAM
Document 65
Entered on FLSD Docket 03)25/2009
Page 9 of 15
Page 9
The USAO is already claiming violations of the NPA based upon EPSTEIN defending the civil
actions and, at the same time, while EPSTEIN asserts the 5'h Amendment. Imagine, because that
is all we can do based on the lack of wording in the NPA, what violations the USAO will assert
if EPSTEIN is forced to waive his 56 Amendment privilege to defend himself in this and the
other civil actions.
The Fifth Amendment provides, in relevant part, that "No person ... shall be compelled
in any Criminal Case to be a witness against himself." Hoffman v. United States, 341 U.S. 479,
486, 71 S.Ct. 814 (1951), citin Feldman v. United States, 1944, 322 U.S. 487, 489, 64 S.Ct.
1082, 1083, 88 L.Ed. 1408." The Fifth Amendment's privilege against self-incrimination is
"accorded liberal construction in favor of the right it was intended to secure." "The immediate
and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of
the privilege may impose on society in the detection and prosecution of a crime." Id., at 490;
and In re Keller Financial Svcs. of Flan Inc. 259 B.R. 391, 399 (M.D. Fla. 2000). The privilege
not only extends to answers that would in themselves support a conviction under a criminal
statute but likewise embraces those which would furnish a link in the chain of evidence needed
to prosecute the claimant for a crime.
pSkgr Blau v. United States, 1950, 340 U.S. 159, 71
S.Ct. 223. The Fifth Amendment privilege against self-incrimination "permits a person not to
answer official questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings." Edwin v.
Price, 778 F.2d at 669, citing Lefkowitz v. Turley 414 U.S. 70, 77, 94 S.C. 316, 322 (1973). As