Doe v. Glazer

• Decision Date: 17 November 2000
• Docket Number: P,RUDY-GLANZE,No. 98-36213,98-36213
• Citation: 232 F.3d 1258
• Parties: (9th Cir. 2000) JANE DOE, a minor, by and through her guardian and mother, ALISAlaintiff-Appellant, v. ELROY "BUD" GLAZER, an individual, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1258

232 F.3d 1258 (9th Cir. 2000)

JANE DOE, a minor, by and through her guardian and mother, ALISA RUDY-GLANZER, Plaintiff-Appellant, v. ELROY "BUD" GLAZER, an individual, Defendant-Appellee.

No. 98-36213

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 9, 2000

Filed November 17, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Lawrence G. Sirhall, Jr., Boise, Idaho, for the defendant appellant.

Michael D. Gaffney, Idaho Falls, Idaho, for the defendant appellee.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-97-00112-BLW

Before: Betty B. Fletcher, Cynthia Holcomb Hall, and A. Wallace Tashima, Circuit Judges.

HALL, Circuit Judge:

Jane Doe ("Doe"), a minor, appeals through her guardian and mother, Alisa Rudy-Glanzer ("Rudy-Glanzer"), the denial of a motion for a new trial. The trial by Rudy-Glanzer against Doe's paternal grandfather Elroy Glanzer ("Elroy"), resulted in a verdict in Elroy's favor. We have jurisdiction pursuant to 28 U.S.C. S 1291 and we affirm.

I

This case is a personal injury action by Rudy-Glanzer, acting on behalf of her minor daughter Doe, against Doe's paternal grandfather Elroy. The complaint alleges that Elroy physically and sexually molested Doe when the latter was approximately three or four years old.

Rudy-Glanzer's allegations are as follows: In November 1995, about one week after Doe had stayed at Elroy's home, she revealed to her mother that Elroy had stuck a gun to Doe's stomach and threatened her if she disclosed "his secret." Following that conversation Barry Glanzer ("Barry"), who is Elroy's son and was Rudy-Glanzer's husband at the time, confronted Elroy regarding what Doe had said. Elroy explained that Doe must have seen the gun on a closet shelf in his bedroom because it would be readily visible even by someone Doe's size.

Following the confrontation, Doe was referred to a therapist, Michelle Pharris-Klar ("Pharris-Klar.") While playing with some dolls, Doe allegedly mimicked the acts that Elroy performed on her, which included the spreading of Doe's legs and the touching of her vagina. Doe also claimed that Elroy enticed her into touching his penis. Pharris-Klar informed an investigator for the Idaho Health and Welfare department of Doe's allegations. Doe allegedly repeated her story to an investigator, but the recorder which was taping Doe's account malfunctioned and this evidence was lost. No criminal charges were filed against Elroy, but at the time the civil lawsuit commenced, the criminal investigation remained open.

Rudy-Glanzer brought this civil personal injury lawsuit against Elroy, seeking damages for willfully and lewdly committing one or more acts of lewd and lascivious conduct uponDoe. See Idaho Code S 6-1701 (Michie 1998). Rudy-Glanzer also asserted causes of action for assault and battery, as well as a claim for punitive damages.

During his deposition, Rudy-Glanzer's counsel asked Elroy whether he had submitted to a penile plethysmograph. A penile plethysmograph is a test that measures, through electric wires attached to a man's penis, the reactions that a man has when presented with certain visual stimuli, in this case pictures of naked girls. Elroy's counsel asserted Elroy's Fifth Amendment privilege against self-incrimination and instructed Elroy to refuse to answer that question. RudyGlanzer then tried to use Elroy's invocation of his privilege against self-incrimination to draw an inference adverse to Elroy, but the district court, in an order pertaining to the parties' various motions in limine, refused to let Rudy-Glanzer do this.

Also before trial, Rudy-Glanzer filed a disclosure statement pursuant to Federal Rule of Evidence 415 in which she stated that she planned to introduce evidence of prior sexual misconduct allegedly perpetrated by Elroy many years earlier on another young girl. Rudy-Glanzer made an offer of proof regarding this evidence, but the district court refused to allow the evidence in. During trial, which lasted from August 17 until August 21, 1998, Elroy's counsel allegedly tried to imply that Rudy-Glanzer's case: (1) was based on her wish to exact revenge on the Glanzer family for her failed marriage to Barry; and (2) stemmed from Rudy-Glanzer's alleged molestation by her own father many years earlier. RudyGlanzer's counsel objected to this implication several times throughout the trial, and the district court routinely sustained such objections, instructing Elroy's counsel that such inquiries had to cease immediately.

After the jury rendered a verdict in Elroy's favor, RudyGlanzer moved for a new trial. Her motion was based upon three alleged fatal flaws with the process: (1) that the district court improperly denied Rudy-Glanzer the ability to present Elroy's invocation of his privilege against self-incrimination at trial, thus preventing the jury from drawing an adverse inference therefrom; (2) that the district court's decision not to allow evidence of Elroy's prior sexual misconduct was erroneous; and (3) that Elroy's counsel references to inadmissible topics such as Rudy-Glanzer's divorce, and her alleged prior molestation, infected the jury's perception and prejudiced the outcome. The district court denied this motion and Rudy-Glanzer appeals.

II

We review a district court's ruling on a motion for a new trial for an abuse of discretion. See United States v. 4.0 Acresof Land, 175 F.3d 1133, 1139 (9th Cir. 1999). We apply that same standard of review to evidentiary rulings by the district court. See Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999).

A. Privilege Against Self-Incrimination

Rudy-Glanzer argues that the district court should have allowed a negative inference from Elroy's invocation of his Fifth Amendment privilege against self-incrimination to reach the jury when, at his deposition, Elroy refused to answer a question regarding whether he had ever submitted to a penile plethysmograph.

1. INVOCATION OF THE PRIVILEGE

The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . . " Notwithstanding the text that seemingly limits the right against self incrimination to the criminal context, the Fifth Amendment's protections have been deemed to apply to civil proceedings. See Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Thus, the Fifth Amendment's protections against self-incrimination can be asserted in any proceeding, be it civil, criminal, administrative, judicial, investigative or adjudicatory. See Kastigar v. United States, 406 U.S. 441, 444 (1972). However, in the civil context, the invocation of the privilege is limited to those circumstances in which the person invoking the privilege reasonably believes that his disclosures could be used in a criminal prosecution, or could lead to other evidence that could be used in that manner. See United States v. Bodwell, 66 F.3d 1000, 1001 (9th Cir. 1995). Therefore, the "privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution" and also covers those circumstances where the disclosures would not be directly incriminating, but could provide an indirect link to incriminating evidence. See United Liquor Co. v. Gard (In re Seper), 705 F.2d 1499, 1501 (9th Cir. 1983). The only way the privilege can be asserted is on a question-by-question basis, and thus as to each question asked, the party has to decide whether or not to raise his Fifth Amendment right. See Bodwell, 66 F.3d at 1001.

As a preliminary matter, Elroy's counsel argues that Elroy never invoked his privilege against self-incrimination when asked whether he had ever submitted to a penile plethysmograph. This contention is squarely refuted by the transcript of Elroy's deposition. Rudy-Glanzer's counsel asked explicitly, "[d]id you ever take such a test [i.e., a penile plethysmograph]?" Deposition Transcript at 44. Elroy's counsel objected saying this is an unfair question, and when RudyGlanzer's counsel asked Elroy's counsel to state the grounds of the objection, Elroy's counsel replied that Elroy should not answer because it would violate his client's "fundamental due process" rights and that Elroy was entitled to raise "a Fifth Amendment objection" to Rudy-Glanzer's line of questioning. Id. at 44-45. Elroy never answered the question. Elroy's counsel's statement pertaining to his client's Fifth Amendment rights not to respond to the question regarding the penile plethysmography is a clear indication that the privilege against self-incrimination was successfully invoked in this deposition.

2. ADVERSE INFERENCES FROM THE INVOCATION OF THE PRIVILEGE

"It is well established that in a criminal trial a judge or prosecutor may not suggest that the jury draw an adverse inference from a defendant's failure to testify. " United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997). However, in civil proceedings adverse inferences can be drawn from a party's invocation of this Fifth Amendment right. See SEC v. Colello, 139 F.3d 674, 677 (9th Cir. 1998).

The seminal case in this area is Baxter v. Palmigiano, 425 U.S. 308 (1976). In Baxter, the Supreme Court was confronted with a prison inmate who had been brought before a prison disciplinary board on charges of inciting a disturbance. When informed that state criminal charges might be brought against him arising out of his conduct while in prison, the inmate was advised that he could remain silent before the board, but that his silence would be used against him. See id. at 312. During the hearing, the inmate was confronted with incriminating evidence, remained completely silent, and as a consequence was given further punishment under the assumption that he perpetrated the acts for which he was being questioned. See id. at 313, 317. The...