SCHLIEN v. SCHLIEN, 97-1489.
| Decision Date | 20 May 1998 |
| Docket Number | No. 97-1489.,97-1489. |
| Citation | 763 So.2d 350 |
| Parties | Linda SCHLIEN, Appellant/Cross-Appellee, v. Robert SCHLIEN, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Kyle D. Pence of Stolberg and Pence, Ft. Lauderdale and Edna L. Caruso and Barbara J. Compiani of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellant/cross-appellee.
William L. Gardiner, III of Gardiner and Gardiner, P.A., Ft. Lauderdale, for appellee/cross-appellant.
This is an appeal from a final judgment of dissolution of marriage. We reverse and remand for a new trial.
The wife filed a petition for dissolution of marriage. Throughout the course of the proceedings, the husband refused to answer any questions regarding his income or the nature of his businesses exercising his privilege against self-incrimination under the Fifth Amendment of the United States Constitution.
While still claiming his privilege against self-incrimination, the husband presented testimony of one of his accountants regarding his income and finances. The wife argues that the husband voluntarily waived his privilege against self-incrimination by constructively testifying in his own behalf through his accountant.
A party who voluntarily gives testimony in their own behalf waives the privilege against self-incrimination. Hargis v. Florida Real Estate Comm'n, 174 So.2d 419, 422 (Fla. 2d DCA 1965); State v. Hickson, 630 So.2d 172 (Fla.1993). If a party were permitted to present their statements to the trier of fact through an expert's testimony, they would, in effect, be able to testify without taking the stand and without subjecting themselves the risk of cross-examination. See Hickson, 630 So.2d at 176.
Despite the husband's contentions to the contrary, our review of the record demonstrates that his accountant relied exclusively on the husband's oral representations for a portion of the financial information presented at trial. Consequently, the wife was precluded from cross-examining the husband regarding the basis of his representations to the accountant.
In Brown v. United States, 356 U.S. 148, 155-156, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958), the Supreme Court stated:
[A] witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts ..., not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only the choice, but if he...
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Wahnon v. Coral & Stones Unlimited Corp.
...responses to the court concerning the subject of the accounting without then raising the privilege." Similarly, in Schlien v. Schlien, 763 So. 2d 350, 351 (Fla. 4th DCA 1998), the Fourth District held that a party who provided financial information to his expert accountant, which formed the......
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Trial and evidence
...court drew adverse inference by virtue of husband’s election not to testify, claiming his Fifth Amendment privilege); Schlien v. Schlien, 763 So. 2d 350 (Fla. 4th DCA 1998) (while still claiming his Fifth Amendment privilege regarding to his income or nature of his business, husband present......