243 N.C. App. 288
N.C. Ct. App.2015Background
- Steven Herndon obtained an ex parte domestic violence protective order (DVPO) against his wife Alison Herndon alleging she drugged him and left their children unattended while she had an affair.
- A full DVPO hearing was held; after plaintiff's proof, Alison was called by her counsel to testify.
- Before she took the stand, the trial judge asked defense counsel whether Alison would "plead the Fifth," and then stated: "I want to make sure that wasn't going to happen because you—somebody might be going to jail then. I just want to let you know. I'm not doing no Fifth Amendment."
- Alison testified on direct without invoking the Fifth; the court then asked her additional questions (beyond the scope of direct) to which she often answered "I don't recall" or "I don't remember."
- The trial court found her testimony not credible and entered a domestic violence protective order. Alison appealed.
- The appellate majority vacated and remanded, concluding the trial court’s comments impermissibly chilled Alison’s Fifth Amendment right and required a new hearing; a dissent argued Alison waived the privilege and suffered no prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court’s pre-testimony statements violated the Fifth Amendment | Herndon: trial court’s warning was proper and not reversible; Alison voluntarily testified so no protected invocation was available | Alison: court’s threat to jail if she asserted the Fifth chilled her right and coerced waiver | Majority: statements violated Fifth Amendment; vacate and remand for new hearing |
| Whether taking the stand in a civil proceeding automatically waives Fifth Amendment privilege | Herndon: voluntary testimony waives privilege for relevant matters (cites Brown/McKillop) | Alison: taking the stand does not automatically waive privilege; waiver only as to matters raised on direct | Majority: follows Brown — waiver only for matters raised by direct testimony; court must assess invocation after hearing testimony |
| Whether the trial court could question beyond scope of direct without permitting invocation | Herndon: court’s managerial authority; defendant voluntarily testified so limits on invocation apply | Alison: court’s questioning exceeded scope and triggered privilege concerns; her counsel couldn’t anticipate judge’s questions | Majority: trial court erred by precluding proper assertion and by its coercive remarks; prior testimony must be disregarded on remand |
| Whether appellate court should address other evidentiary and constitutional issues | Herndon: pursue affirmance on other grounds | Alison: primary remedy is new hearing because of Fifth Amendment violation | Majority: vacated on Fifth Amendment grounds and declined to reach other issues under constitutional avoidance |
Key Cases Cited
- Brown v. United States, 356 U.S. 148 (1958) (waiver of Fifth in civil case limited to matters raised by a witness’s direct testimony)
- Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment applied to the states)
- McKillop v. Onslow County, 139 N.C. App. 53 (2000) (party testimony may waive privilege for relevant matters; civil factfinder may draw adverse inferences)
- Cantwell v. Cantwell, 109 N.C. App. 395 (1993) (discussing waiver when plaintiff seeks affirmative relief)
- Jenkins v. Wessel, 780 So.2d 1006 (Fla. Dist. Ct. App. 2001) (domestic-violence hearing context: defendant may invoke Fifth as to matters beyond direct)
- Galyon v. Stutts, 241 N.C. 120 (1954) (testimony that is obviously false or evasive may be treated as refusal and punished)