Cross Border Cut
When Pleading the Fifth Is Not an Option: Admissibility of Compelled Statements from a Foreign Proceeding in Subsequent U.S. Federal Proceedings
A witness compelled to testify in foreign proceedings faces a unique risk in the event of subsequent criminal prosecution in the United States—an inability to exercise the Fifth Amendment right against self-incrimination. Say your client, a non-U.S. citizen and the director of a Cayman company, is being compelled to provide testimony in an administrative proceeding in the Cayman Islands regarding her company’s liquidation. What advice should you give her regarding the impact of her Cayman testimony in subsequent U.S. proceedings? The answer depends on the nature of the subsequent proceeding. allow
In the civil context, the answer is clear: If our hypothetical director later finds herself in civil litigation before a U.S. federal court, her Cayman testimony will likely be admissible. Assuming it is both relevant to the U.S. litigation and more probative than prejudicial, her testimony would not be barred under the usual hearsay grounds. Her Cayman testimony falls under hearsay exceptions of the Federal Rules of Evidence—it could be admitted as a statement against interest under Rule 804(b)(3) or as former testimony under Rule 804(b)(1). Indeed, the U.S. Court of Appeals for the Second Circuit (the intermediate federal appellate court sitting in New York) has held that a deposition carried out in conformity with the laws of a foreign host nation is admissible as “a deposition in compliance with law . . . unless the manner of examination required by the law of the host nation is so incompatible with our fundamental principles of fairness or so prone to inaccuracy or bias as to render the testimony inherently unreliable.”
Similarly, the testimony could not be excluded by invocation of the Fifth Amendment’s protection against self-incrimination. That protection cannot be used to prevent the introduction of the previously made statements in a civil proceeding (like the proceeding in our Cayman Islands example) because the protection only applies on its face to the use of evidence in a “criminal case.” U.S. Const. Amend. V. While it is true that civil defendants may also invoke the Fifth Amendment to avoid being placed under oath and being exposed to “the cruel trilemma of self-accusation, perjury or contempt,” the Fifth Amendment is not a tool for suppressing prior compelled incriminating statements in civil proceedings. In other words, because the director could not seek Fifth Amendment protections in her Cayman proceedings, the testimony that was already elicited is available for use in subsequent U.S. proceedings.
Although a bit more complicated, the same is likely true for a subsequent criminal prosecution in the U.S. Assume now that the director is being criminally prosecuted for her conduct as director of the Cayman company. There is some case law that suggests that the Fifth Amendment privilege against self-incrimination may be invoked in a U.S. criminal proceeding by a non-resident alien whose only connection to the United States is the alleged violation of U.S. law and subsequent prosecution. These cases, however, refer to custodial interrogations by U.S. or foreign law enforcement officials on foreign soil, and suggest that statements made where the defendant did not effectively waive his right to remain silent (in accordance with U.S. law) may be excluded on Fifth Amendment grounds in a later U.S. criminal proceeding. Where the defendant’s prior statements are involuntarily, the Fifth Amendment applies not just to statements made to U.S. agents but also to those made to foreign agents.
Given the unique considerations inherent in the custodial context, it is by no means certain that the reasoning in this line of cases would be extended to other contexts, such as that of the hypothetical director’s compelled testimony obtained in a foreign administrative proceeding. Unlike custodial interrogations, individuals in foreign proceedings will presumably be advised by counsel and prepared for questioning. This is an “involuntary” testimony of a different nature than compelled statements of unrepresented individuals in the physically and psychologically coercive custodial setting. Thus, you should counsel your foreign clients that they should be prepared that statements they make in foreign proceedings will likely be fair game in subsequent U.S. litigation.
Contributor: Andrei Vrabie
The contents of this article are provided for informational purposes only and do not constitute legal advice. All rights reserved. Attorney advertising. Prior results do not guarantee a similar outcome.
 United States v. Salim, 855 F.2d 944, 954–55 (2d Cir. 1988).
 Chavez v. Martinez, 538 U.S. 760, 763 (2003).
 See Estate of Bui v. City of Westminster Police Dep’t, 244 F.R.D. 591, 594 (C.D. Cal. 2007) (rejecting Fifth Amendment protection in a civil matter where investigative report sought by the parties in discovery contained compelled incriminating statements: “until a compelled statement is used in a criminal case, there is no Fifth Amendment violation. Accordingly, use of a person’s compelled statement in a civil case against him does not violate the person's Fifth Amendment right against self-incrimination.”); In re Grand Jury Subpoena, 75 F.3d 446, 448 (9th Cir.1996) (the focus of the Fifth Amendment privilege for previously obtained statements is the use of those statements in a criminal case).
 See, e.g., In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 177, 199 (2d Cir. 2008) (Non-resident aliens interrogated abroad may seek exclusion of involuntary incriminating statements in domestic criminal trials because “a violation of the Fifth Amendment's right against self-incrimination occurs […] when a compelled statement is offered at trial against the defendant.”); United States v. Bin Laden, 132 F.Supp.2d, 181-182, 185 (S.D.N.Y. 2001) (Defendants could seek exclusion of involuntary incriminating statements in a domestic criminal proceeding “despite their status as non-resident aliens whose only connections to this country are their alleged crimes and their domestic prosecution therefor”).
 See, e.g., Brulay v. United States, 383 F.2d at 349, n. 5 (“[W]e believe that if the statement is not voluntarily given, whether given to a United States or foreign officer, the defendant has been compelled to be a witness against himself when the statement is admitted.”); see also United States v. Welsch, 455 F.2d 211, 213 (2d Cir. 1972); Kilday v. United States, 481 F.2d 655, 656 (5th Cir. 1973).
 See Miranda v. Arizona, 384 U.S. 436, 457-458 (1966) (the custodial environment is “created for no purpose other than to subjugate the individual to the will of his examiner” and in which “no statement obtained from the defendant can truly be the product of his free choice”).