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The Sounds of Silence: Cohen, Trump and Evidence Law 101

Posted April 27, 2018

By Jonathan A. Karon

Most people have seen t.v. shows where the suspect is informed of their Fifth Amendment “right to remain silent” and that anything they say, “can and will be used against you.” Regardless of how you feel about President Trump, the investigations and lawsuits involving him and people around him provide endless examples of interesting principles in evidence law. This week brought contrasting examples of the importance and ramifications of exercising the right to remain silent. Both involve the President and his attorney, Michael Cohen.

On Wednesday (April 25th), major newspapers, including the New York Times and the Washington Post, reported that Mr. Cohen would refuse to testify and provide information based on his Fifth Amendment right against self-incrimination, in the lawsuit brought against him in California State court by Stormy Daniels. Given that Mr. Cohen is under criminal investigation by the U.S. Attorneys’ office for the Southern District of New York, his position makes perfect sense. This is because under Federal evidence law anything anyone says (or writes or posts on social media) at any time, can be used against them in a civil suit or a criminal prosecution.

Normally, juries are not allowed to hear or consider statements that persons make outside the courtroom. Such statements are known as “hearsay”. The idea is that a witness should have to come in to Court, be sworn under oath to tell the truth, and the jurors given an opportunity to size them up in person and come to their own conclusion whether the witness is telling the truth. But where a statement is made outside the court room by one of the parties to a civil case or the defendant in a criminal case, the law doesn’t consider it hearsay. Instead, jurors are allowed to consider the out of court statement under the theory that someone wouldn’t say something that would hurt their case if it wasn’t true. The technical name for such a statement is an “admission by a party opponent” and Federal Rule of Evidence 801 specifically says that such statements are not considered hearsay and can be admitted into evidence (i.e. considered by the jury).

So, knowing that Federal Prosecutors can use any testimony or documents produced in Stormy Daniels’ case against him, Mr. Cohen seems well advised to invoke his Fifth Amendment privilege. Interestingly, he is better off because the Stormy Daniels case was filed in California State Court. In Federal Court, the jury or the Court can draw adverse inferences in a civil case against a party who refuses to testify based on their Fifth Amendment privilege. Under California state law (not Consitutional principles) such an adverse inference is not permitted in California state courts. This does not, however, mean that Mr. Cohen gets a total free pass. “[I]n a civil case a witness or party may be required either to waive the [Fifth Amendment] privilege or accept the civil consequences of silence if he or she does exercise it.” Alvarez v. Sanchez, 158 Cal.App.3d 709, 712 (1984). Some of these consequences could include limiting the testimony or other evidence that Mr. Cohen can present in his defense.

In marked contrast to his former attorney, the President doesn’t seem to recognize the value of remaining silent. Yesterday morning, in a long, rambling phone interview with Fox & Friends, President Trump made one statement that could come back to haunt him. The President said that Michael Cohen only did “a tiny, tiny little fraction of my legal work.” Later that afternoon, Federal prosecutors seized on the remark to argue that very few of the documents recently seized from Michael Cohen pursuant to a search warrant were likely to be protected by attorney-client privilege. This, of course, is not the only time that the President’s gratuitous comments have gotten him into potential trouble. You may recall President Trump’s interview with NBC’s Lester Holt where he suggested that he fired F.B.I. Director James Comey because of the Russia investigation. Once again, regardless of your views of the President or the underlying issues in the Russia investigation, it seems clear that the President would be well advised to follow the example of his former attorney, Michael Cohen and remain silent.

Don’t hold your breath.

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