Herndon v. Herndon and Pleading the Fifth

A recent court of appeals decision has stirred up a lot of discussion on our hall about the scope of the Fifth Amendment right to be free from self-incrimination. The case is Herndon v. Herndon, __ N.C. App. __ (October 6, 2015), and it arose from a defendant’s appeal from the entry of a domestic violence protective order against her.  Before the defendant testified in the hearing to determine whether acts of domestic violence occurred, the presiding judge cautioned the defendant’s attorney:  “I’m not doing no Fifth Amendment.”  There’s really no question that the warning was, as one appellate judge put it, “less than artful,” but did it violate the defendant’s rights?

These facts are simply too juicy to skip. In May 2014, Steven Herndon filed a complaint and motion for a domestic violence protective order against his wife, Alison Herndon. Mr. Herndon alleged that Ms. Herndon had drugged his food and drink on at least three occasions, causing him to pass out and become ill. Mr. Herndon said that after he became incapacitated, Ms. Herndon went out to see her lover, leaving their four minor children at home unsupervised. Mr. Herndon said he lived in fear that his wife would cause him imminent and serious bodily injury.

The hearing. At the hearing to determine whether a domestic violence protective order should be entered, Ms. Herndon’s counsel called her client as a witness. The following exchange then took place:

THE COURT: All right. Before we do that, let me make a statement. You’re calling her. She ain’t going to get up there and plead no Fifth Amendment?

COUNSEL: No, she’s not.

THE COURT: I want to make sure that wasn’t going to happen because you—somebody might be going to jail then. I just want to let you know. I’m not doing no Fifth Amendment.

Ms. Herndon testified. The trial judge did not allow Mr. Herndon’s counsel to cross-examine her, but asked questions herself. Some of the questions concerned whether Ms. Herndon had admitted in text messages that she was drugging her husband. Ms. Herndon answered many of the judge’s questions with variations of “I don’t recall” or “I don’t remember.”

After questioning Ms. Herndon, the trial judge stated: “I find your limited testimony you did talk about to be not credible that you don’t remember.” The court subsequently entered a written domestic violence protective order against Ms. Herndon.

The appeal. Ms. Herndon alleged on appeal that the trial court’s warnings violated her Fifth Amendment rights. A majority of the court of appeals panel agreed, vacating and remanding the case for a new hearing “that disregards Ms. Herndon’s previous testimony.” The majority acknowledged that a witness cannot voluntarily take the stand to testify and also claim the right to be free from cross-examination on matters raised by her own testimony on direct examination. See Brown v. United States, 356 U.S. 148, 155-56 (1958) (explaining that a witness who voluntarily testifies “cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute”).

However, the court concluded that the trial court’s admonishment left Ms. Herndon with the impermissible choice of “forgoing her right to testify at a hearing where her liberty was threatened or forgoing her constitutional right against self-incrimination.” The court explained that “[a]lthough Ms. Herndon’s direct testimony did not address her alleged drugging of her husband, the trial court asked her about text messages that corroborated this allegation.” Ms. Herndon’s responses, which the trial court later relied upon in finding her not credible may have resulted from her reluctance to assert her Fifth Amendment right. And her reluctance may have been attributed to the trial court’s warning that she might be imprisoned if she did so.

Judge Bryant dissented on the basis that the defendant waived her Fifth Amendment privilege; thus, the trial court’s warnings had no prejudicial effect.

Two thoughts about Herndon.  First, I’m surprised by the narrow view that the majority adopted regarding the scope of Ms. Herndon’s Fifth Amendment waiver. I don’t know what she testified about on direct, but it seems reasonable to assume that it was related to the allegations Mr. Herndon made in his complaint. If not, I don’t know why it was admitted. Even if she didn’t testify about whether she drugged her husband, it seems that any testimony on the issue of whether she engaged in acts of domestic violence would have waived any privilege she had as to that matter. Second, I’m surprised by the remedy. The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Herndon was a civil case, not a criminal prosecution. Thus, even assuming that Ms. Herndon’s responses to the judge’s questions exceeded the scope of her direct testimony, it is not readily apparent that this amounts to a violation of her Fifth Amendment rights. See Chavez v. Martinez, 538 U.S. 760, 766 (2003) (plurality op.) (concluding that the plaintiff in a civil rights action could not allege a violation of his Fifth Amendment right to be free from compelled self-incrimination since he was “never prosecuted for a crime, let alone compelled to be a witness against himself in a criminal case.”).

Have your own thoughts about Herndon and the Fifth Amendment? Use the comment button and fire away.

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