Bauer’s Hearing Strategy Is A Trial In The Court of Public Opinion

Update: California attorney Ethan Reimers pointed out to me (and you should follow him on Twitter) that California has a rule of evidence which, as of a 2012 amendment, now allows for a party to request a jury instruction against adverse inferences in civil cases. However, California law does require a person to take the stand and invoke the fifth amendment to receive this protection. However, the California Supreme Court previously did provide for adverse inferences, and since then has held that the protection from adverse inferences is limited to the jury; “the right to cross-examination cannot be defeated by a valid claim of privilege, even a privilege as strong as that embodied in the Fifth Amendment.”

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This past Friday, attorneys for disgraced Dodgers right-handed pitcher Trevor Bauer and the petitioner who accused him of sexual assault in the civil restraining order case against him appeared in court. The headlines were that the hearing was continued to three days in August for the presentation of testimony and evidence by the two sides, but what occurred at the hearing before the continuance was issued perhaps was of greater import.

Bauer was represented at the hearing by Shawn Holley, who is widely considered among the best criminal defense attorneys in the country in private practice. Holley has represented Lindsey Lohan, the Kardashian and Jenner families, and served on O.J. Simpson’s defense team, among other notable cases. In short, Holley is really good. That made her strategy at Friday’s hearing notable when it came to a colloquy about Bauer himself testifying.

“There is a pending criminal investigation,” Holley said to Superior Court Judge Dianna Gould-Saltman. “For that reason, I and Mr. (Jon) Fetterolf (Bauer’s agent) have advised Mr. Bauer not to testify about any of the substance of this matter. My question is ... does the court intend to have him take the stand and invoke?”

Holley suggested Bauer could invoke the Fifth Amendment privately “in chambers” instead of open court and also suggested the judge “ask him at the appropriate time whether or not he intends to follow my advice.”

“Having him take the stand and invoke with each question has no probative value at all (and would be) nothing more than a prejudicial exercise given the media attention in this matter,” Holley said.

An attorney for the woman said, “Under civil law, he does have to take the stand.”

“He does have to invoke his right with respect to each question, so we would ask that he do so,” said the attorney, Lisa Helfend Meyer. ”There may be some questions that answers might not tend to incriminate.”

The judge indicated Meyer was correct.

Let’s break down what this means, and then we’ll dive into why this matters.

The Fifth Amendment to the United States is one of the most important. Most people think of it as the amendment that talks about your right to remain silent, but it actually doesn’t say that exactly. I’ve boldfaced the part that matters to us here.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In other words, the Fifth Amendment says that the government can’t compel you to testify against yourself, which includes a right against self-incrimination. The most basic application of this right is that the prosecution can’t call you as a witness in your own criminal trial, and can’t ask the jury or judge to draw any adverse conclusions from your refusal to testify. The more modern conception of a “right to remain silent” comes from the U.S. Supreme Court decision in Miranda v. Arizona, and yes, that is where the term “Miranda rights” - which you’ve seen on every cop show - comes from. Miranda explained that the Fifth Amendment’s protection against self-incrimination means little if you can be forced to speak or incriminate yourself before the trial begins. Cue Chief Justice Warren:

Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

What does this have to do with Bauer? Actually, quite a lot. You see, the restraining order case is civil - and the plain language of the Fifth Amendment means that it applies to criminal cases and proceedings, not civil cases. In other words, you can be called as a witness against yourself in civil proceedings, and the Fifth Amendment is not a defense to purely civil matters. However, since the U.S. Supreme Court case of Pillsbury Co. v. Conboy, it’s been clear that statements you make in a civil matter can be used against you in a criminal case. So how do you navigate this?

In other words, let’s say that John and Jacob are in a car accident. There are no criminal statutes implicated; no one did anything criminally wrong, but John was civilly negligent. Perhaps he failed to brake quickly enough, or he was following too closely, or there was someone in his blind spot; it doesn’t matter. Jacob can call John as a witness and force him to answer questions about the accident and his negligence.

But now let’s assume that John was texting whilst driving and that doing so is a crime in the state of Jingleheimer. Jacob can call John to the stand and ask him questions, but if John answers, those statements can be used against him in a later criminal proceeding. So John has two choices:

1. He can answer the questions, at which point his own statements are evidence that Prosecutor Schmidt can use to charge him with a crime; or
2. He can invoke his Fifth Amendment rights and refuse to answer, at which point his testimony cannot be used against him in a subsequent criminal proceeding, but the judge and/or jury can (and in some jurisdictions must) conclude that his invocation is evidence that he did the acts in question. We call that an “adverse inference.”

Most attorneys correctly conclude that being ordered to pay money is better than being found guilty of a crime, and so Ms. Holley, quite correctly and properly, has instructed Bauer to remain silent and invoke his Fifth Amendment rights. Now, in order to invoke this right to remain silent, you - somewhat paradoxically - cannot remain silent. The Supreme Court held in a case called Salinas v. Texas that you must properly say you are invoking the right to remain silent, not just sit there and be silent. On television, you often see a dramatic moment where a person cries “I invoke my right to remain silent under the Fifth Amendment on the grounds that the answer might serve to incriminate me,” which is a terrible answer that actually does a really bad job of invoking the Fifth Amendment. In reality, “I invoke the Fifth Amendment” is often enough, but it’s a lot more boring for television.

In any event, this creates a scenario where, in civil cases, a defendant or witness can answer “I invoke the Fifth Amendment” over and over again in response to questions. That’s why Ms. Holley wanted Bauer to invoke the Fifth Amendment just once in chambers because the spectre of Bauer invoking the Fifth Amendment repeatedly will justifiably cause the court to draw adverse inferences from his answers. The problem for Bauer - as Meyer correctly pointed out - is that drawing such an adverse inference in this particular case is entirely proper. Bauer is allowed to invoke the Fifth Amendment so as to avoid having his testimony be used against him in a later criminal proceeding. However, in doing so, he necessarily accepts the adverse inference in the civil case associated with his invocation.

Ms. Holley knows this, of course, and she also knows that because California follows the adverse inference rule for invocation of the Fifth Amendment in civil cases, it doesn’t really matter where the invocation occurs; the court will draw the same adverse inference wherever Bauer invokes the Fifth Amendment. The evidentiary standard for a civil proceeding, like this restraining order hearing, is a “preponderance of the evidence”; that is, more likely than not. It is proper for a judge to conclude in a civil case (but never in a criminal case) that based on Bauer’s invocation of the Fifth Amendment, it is more likely than not that he did what is alleged in the petitioner’s pleadings, and Holley knows this too.

However, Holley noted the “media attention in this matter,” and that’s what she actually cares about. After weeks of protesting his innocence in the media, Bauer would look, frankly, really bad if he’s invoking the Fifth Amendment in the restraining order case on question after question. Holley doesn’t want the media to draw the same adverse inference as the court will. After all, the existence of the adverse inference will make it really hard - though by no means impossible - for Bauer to win this hearing.

Now, to be clear, Bauer - and every other person facing potential criminal or civil liability - is and should be entitled to excellent legal defense. However, that’s not what’s happening here. Holley - and the rest of Bauer’s team - are fighting this case in the media. They want to keep Bauer off the stand because of how it will look when he testifies. That’s also why his team continues to harass and threaten members of the media (though with far less skill).

Holley also filed a motion asking for $30,000 in attorney fees as sanctions from the petitioner for purportedly improper subpoenas, a hyperbolically overinflated request even if the motions had merit. Again, this entire strategy seems designed to harass and disincentivize other potential witnesses and accusers.

At a certain point, though, Bauer’s scorched earth approach will backfire in the courtroom as well. Reports surfaced this weekend that “the ‘majority of Bauer’s teammates don’t want him back in the clubhouse ‘under any circumstances.’” Given Bauer’s conduct, that’s perfectly understandable.

Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.