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5th Amendment protection in a debt collection case

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  • Legalbear
    [17] Colorado has long recognized that the protection against self-incrimination operates to protect against testimonial compulsion in proceedings other
    Message 1 of 1 , Oct 14, 2010

      [17]        Colorado has long recognized that the protection against self-incrimination operates to protect against testimonial compulsion in proceedings other than criminal trials. Keener v. People, 194 Colo. 244, 572 P.2d 463 (1977) (J. Erickson concurring); see Early v. People, 142 Colo. 462, 352 P.2d 112 (1960), cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960); People v. Schneider, 133 Colo. 173, 292 P.2d 982 (1956); People v. McPhail, 118 Colo. 478, 197 P.2d 315 (1948). This protection has been specifically applied in post judgment proceedings against debtors. Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931) (supplemental proceeding on unsatisfied judgment under Code of Civil Procedure, 1921).


      [18]        The protections of the Fifth Amendment can be invoked by anyone whose statements or answers to questions could incriminate him, either by directly admitting the commission of illegal acts, or by relating information which would "furnish a link in the chain of evidence needed to prosecute the claimant" for such acts. Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); Tipton v. Lakewood, 198 Colo. 18, 595 P.2d 689 (1979). The witness need not follow any ritualistic formula to invoke the right, and his claim may be phrased imprecisely so long as it apprises the court that he is invoking his Fifth Amendment right. Quinn v. United States, 349 U.S. 155, 75 S. Ct. 668, 99 L. Ed. 964 (1955); Tiptin v. Lakewood, supra.


      [19]        A privilege can be claimed as to any question, but the burden lies with the person claiming it to establish the propriety or applicability of the privilege. Garner v. United States, 424 U.S. 648, 96 S. Ct. 1178, 47 L. Ed. 2d 370 (1976); Tiptin v. Lakewood, supra.


      [20]        Initially, the decision of whether the privilege is properly invoked is one for the trial court. Hoffman v. United States, supra; Tiptin v. Lakewood, supra. The witness need not reveal the essence of the testimony which is protected, but must only disclose enough to raise the possibility that incrimination could result from answering. People v. Borjas, 191 Colo. 218, 552 P.2d 26 (1976); Tiptin v. Lakewood, supra.


      [21]        In order for the trial court to be justified in compelling a response, it must be clear from a careful consideration of all the circumstances in the case, that the witness is mistaken as to the possible effects of his answers, "and [that] the answers cannot possibly have such tendency to incriminate." Hoffman v. United States, supra (emphasis supplied); Tiptin v. Lakewood, supra; Sweeny v. Cregan, supra. Griffin v. Western Realty Sales Corp., 1983.CO.40398 <http://www.versuslaw.com>¶¶ 17-21; 665 P.2d 1031 (Colo.App. 1983).



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