WILLIAM C. LEWIS, TRUSTEE, DEBTOR IN POSSESSION AND WILLIAM C. LEWIS, INDIVIDUALLY, PETITIONER,
v.
FIRST AMERICAN BANK OF PALM BEACH COUNTY, A FLORIDA BANKING CORPORATION, RESPONDENT
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The court held that a witness is exempt from answering questions that may directly or indirectly incriminate him, and the trial court must exercise discretion in determining such claims.
The defendant in a fraud action petitioned for review of an order compelling him to answer deposition questions, asserting they could incriminate him.…
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PER CURIAM.
The defendant in an action based on alleged fraud petitions this Court to review an order compelling him to answer certain questions propounded to him at the taking of his deposition. The petitioner contends that his answers would tend to incriminate him or would constitute a link in a chain of evidence leading to his conviction.
It is well settled that in any type of proceeding a person is exempt from answering questions which may directly or indirectly incriminate him. State v. Sullivan, 37 So. 2d 907 (Fla. 1948). The matter of deciding what answers may be incriminating is not solely up to the witness himself, but is one requiring the exercise of the trial court’s discretion. State v. Kelly, 71 So. 2d 887 (Fla. 1954). In exercising this discretion, the court must determine whether the witness has reasonable cause to apprehend danger from a direct answer. The court may require the witness to answer only if it is perfectly clear that the witness is mistaken in his apprehensions and the answers cannot possibly have a tendency to incriminate. United States v. Goodwin, 625 F. 2d 693 (5th Cir. 1980).
In reviewing the questions which the trial court included in its order, we find that the answers to a majority of them could directly or indirectly incriminate the petitioner and that his apprehensions are real. We therefore grant his petition for certiorari on all questions except the two found on pages 25 and 27 of his deposition. As to those two questions, the answers to which cannot possibly incriminate him, the petition is denied. The order of the trial court is quashed except as to the noted questions.
QUASHED AND REMANDED.
LETTS, C. J., and MOORE and BERA-NEK, JJ., concur.
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DeLISI v. Bankers Ins. Co., 436 So. 2d 1099 (Fla. 4th DCA 1983)…ial.... The privilege is inapplicable only “if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness.” [Citations omitted.] See also Lewis v. First American Bank of Palm Beach County, 405 So. 2d 300 (Fla. 4th DCA 1981); Litchford, The Privilege Against Self-Incrimination in Civil Litigation, 57 Florida Bar Journal 139, 140 (1983). In the present case, the trial court burdened the petitioner’s assertion of the Fifth Amendment privilege without…
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Stewart v. Mussoline, 487 So. 2d 96 (Fla. 3d DCA 1986)…ee Pillsbury Co. v. Conboy, 459 U.S. 248, 266 n. 1, 103 S.Ct. 608, 618 n. 1, 74 L.Ed.2d 430, 445 n. 1 (1982) (Marshall, J., concurring); Carson v. Jackson, 466 So. 2d 1188, 1191 (Fla. 4th DCA 1985); Lewis v. First American Bank of Palm Beach County, 405 So. 2d 300, 301 (Fla. 4th DCA 1981). Stewart was charged with murdering her husband; Stewart argues that the state theorizes that she was motivated by financial gain. Thus, any answers that she may give to questions relating to financial matters, asked at a de…
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Magid v. Elliot C. Winter, 654 So. 2d 1037 (Fla. 4th DCA 1995)…urt may properly require a witness to answer questions only if it is perfectly clear that the witness is mistaken in his apprehensions and the answers cannot possibly have a tendency to incriminate. Lewis v. First American Bank of Palm Beach County, 405 So. 2d 300 (Fla. 4th DCA 1981). Finally, a trial court order that compels a witness to answer all questions raised, even those which may incriminate the witness, should be considered over-broad and a departure from the essential requirements of law. See, e.g.,…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980)
- State ex rel. Mitchell v. Kelly, 71 So. 2d 887 (Fla. 1954)
- State v. Sullivan, 37 So. 2d 907 (Fla. 1948)