Do the various United States Constitutional rights and privileges that we think of as being protections against criminal prosecution apply even in a personal injury case? The answer, at least in Virginia (VA), is yes, all constitutional protections apply even in a personal injury or other type of civil case.
In Virginia (VA), there is even a state statute that sets forth, with regard to the fifth amendment privilege against self-incrimination the following:
“In any civil action the exercise by a party of any constitutional protection shall not be used against him.” (This is Virginia Code 8.01-223.1). What this means is that an attorney cannot ask an injured plaintiff (or defendant) in a personal injury lawsuit whether they are using illegal drugs, or have actively done some act which is a crime. And yes, this can come up in personal injury cases. In one recent case of mine, the plaintiff became depressed about being out of work and actually got involved in the abuse of legal drugs (using legal drugs in an illegal way) and found himself in protected drug rehabilitation counseling. Because we knew the other party may discover this information the best course of action was to actually disclose the information to the other attorney prior to the time the injured plaintiff was going to be deposed for purposes of the personal injury case. This is a difficult course of action to take for a personal injury lawyer, but many times we as personal injury lawyers must rely upon the protections that the courts will give our clients for matters that are truly irrelevant to their personal injury case.
The rules in virtually every state and federal court allow a defendant to obtain many types of information in a deposition, even if that same information may not be admissible as evidence at a trial, whether before a judge or jury. In other words, a defendant can fish around for all kinds of potentially inadmissible information in a deposition. That same information may be completely irrelevant to the trial and a judge may exclude it as too prejudicial, and not really central to any issue relating to the personal injury.
So, many kinds of odd situations arise. Sometimes a defendant wants to ask about a nasty divorce or criminal warrants that have been taken out between an injured personal and an ex spouse. Sometimes, the defendant may want to look into drug counseling or a prior bad act relating to illegal drug use. All kinds of things can arise and many of these circumstances are completely irrelevant to a personal injury action.
However, our courts generally allow parties to probe into this information during a deposition, which is the client’s testimony taken under oath. We count on the courts to protect our clients from prejudicial information that really has nothing to do with the extent of their personal injury.
Its rare that we must interject an objection under the constitution against our clients incriminating themselves, but it does happen. In my recent case, I refused to allow my client to answer questions that would have asked him to admit illegal drug use. The defendant later sought a hearing to require my client to answer those same questions. Fortunately, the judge would have none of this and upheld our opposition to the deposition being reconvened. The judge sustained our right to the constitutional protection fully applying and not being used against our client. Particularly, in the case in question, I did not obstruct the defendants lawyer from asking many other questions relating to drug counseling even though I knew those areas would probably be off limits at any trial. It was probably the reason that the judge sustained our objection to any reconvening of the deposition because the defendant lawyer had already gotten any potentially relevant information in the deposition the first time around.
Federal law protects against the disclosure of drug counseling, alcohol counseling or rehabilitation, and there are many other federal laws that protect against certain disclosures of information. As lawyers for personal injury clients, we have to review all of this available information with our client and make a reasonable decision on what must be disclosed and what must be objected too. It is then up to the judge at a later date to determine whether this type of information is so prejudicial that it may not be admitted at a trail. It only makes since that the United States Constitutional protections will apply in personal injury cases, and other civil cases just as they would in a criminal courtroom.