The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE: MARCUS TAFOYA'S MOTION TO SET ASIDE HIS FIFTH AMENDMENT ELECTION
Defendant Marcus Tafoya moves to set aside his November 16, 2009 assertion of his rights under the Fifth Amendment, previously electing not to testify in this action while a criminal case was pending against him. Plaintiffs oppose the motion.
Plaintiffs Lupe Martinez, Ralph Rendon, Claudia Rendon, George Rendon, Priscilla Rendon, Lawrence Rendon, Ricardo Rendon, John Nunez, Jr., Alfred Hernandez, and Vivian Centeno bring this civil rights action against the City of Fresno, Chief Jerry Dyer, Sergeant Michael Manfredi, and Officers Belinda Anaya and Marcus Tafoya. Plaintiffs allege that on March 5, 2005, Defendant Officers unlawfully entered Ms. Rendon's residence, exercised excessive force during the encounter, and illegally seized and/or arrested them. Plaintiffs have brought claims against the Defendant Officers for violations of their federal and state constitutional rights, malicious prosecution, and false imprisonment. Plaintiffs have also brought claims against the City of Fresno for inadequate training and supervision.
On March 31, 2009, the parties appeared before the Court to discuss the difficulties raised by Defendant Tafoya's assertion of his rights under the Fifth Amendment. Defendant Tafoya, who was previously indicted on nine counts of criminal conduct,*fn1 was ordered to make his Fifth Amendment election by November 15, 2009. On November 15, 2009, Defendant Tafoya filed an "Election Regarding Testimony," asserting his Fifth Amendment right not to testify in this case.
Defendant Tafoya's criminal trial, People of the State of California v. Marcus Tafoya, Case No. 07900100, commenced in November 2009. After eight weeks of trial, on January 25, 2010, Defendant Tafoya was acquitted on all counts related to the incident forming the basis of this litigation.*fn2
On January 29, 2010, the parties appeared before the Court to discuss the impact, if any, of the acquittals on the issues raised in this case.*fn3 During the hearing, Defendant Tafoya announced his intent to set aside his previous assertion of his Fifth Amendment rights. The Court permitted the parties to brief the issue, ordering Defendant Tafoya to file his motion by February 5, 2010.
On February 5, 2010, Defendant Marcus Tafoya moved to set aside his November 16, 2009 assertion of his Fifth Amendment rights. Plaintiffs opposed the motion on February 9, 2010.*fn4
Defendant Tafoya argues that he should be relieved of his prior election not to testify for two reasons. First, Tafoya argues that he was not "gaming" the system as he was criminally indicted prior to asserting his Fifth Amendment rights in this case. Second, any claimed prejudice by the Plaintiffs is outweighed by the harm Tafoya will suffer if he is not allowed to testify as he is personally liable for any potential punitive damages award.
Plaintiffs dispute the characterization of Tafoya's gamesmanship, arguing that he received a "tactical advantage" in both cases - criminal and civil - by invoking his right not to testify in this case. According to Plaintiff, Tafoya was able to cross-examine witnesses and "preview" the evidence against him without submitting to a deposition. As to prejudice, Plaintiffs argue that they have expended thousands of hours in discovery and prepared summary judgment motions based on Tafoya's election not to testify. Plaintiffs conclude that "balancing the appropriate factors mandates that Defendant Tafoya not be allowed to withdraw his election."
Courts have held that a trial court must "carefully balance" the interests of the party claiming protection against self-incrimination and the adversary's entitlement to equitable treatment. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1265 (9th Cir. 2003) (citing S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 192). "Because the privilege is constitutionally based, the detriment to the party asserting it should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side." Id. The tension between one party's Fifth Amendment rights and the other party's right to a fair proceeding is "resolved by analyzing each instance [...] on a case-by-case basis under the microscope of the circumstances of that particular civil litigation." Id.
Evans v. City of Chicago, 513 F.3d 735 (7th Cir. 2008), provides the closest specific context. There, Plaintiff brought suit against the City of Chicago and several of its police officers alleging that they conspired to falsely convict him of the abduction, rape, and murder of a nine-year old girl. During discovery, the group of allegedly corrupt officers refused to testify, invoking their Fifth Amendment rights, in light of an ongoing investigations into their conduct by both a grand jury and special prosecutor. Prior to trial, the officers moved to withdraw their Fifth Amendment election based on the special prosecutor's report, which concluded that the officers would not face criminal indictment. The trial court ...