One factor that the court may consider in deciding whether to draw an adverse inference is whether the defendant asserted his or her right to decline to testify early in the case, but then later retracted it and submitted to a full deposition. In Evans v. City of Chicago, for example, a group of defendants invoked their Fifth Amendment rights during the two-year period that the case was in discovery. 513 F.3d 735, 735 (7th Cir. 2008). The plaintiff proceeded to prepare for trial without the benefit of the defendants’ testimony. Approximately one month before trial, the defendants changed their minds and retracted their Fifth Amendment assertions. The court ordered the defendants to give depositions during the weeks leading up to the trial. Immediately before the trial commenced, the court issued a ruling to exclude evidence of the defendants’ two-year-long invocation of their Fifth Amendment rights against self-incrimination. The jury returned a verdict in favor of the defendants. Id. at 740.
The plaintiff, on appeal to the Seventh Circuit, argued that the trial court abused its discretion by allowing the defendants to change their position at the eleventh hour and then declining to allow evidence of their earlier Fifth Amendment assertions. The Seventh Circuit affirmed the trial court’s decision, explaining that the court reasonably could have determined that ordering additional discovery cured any prejudice to the plaintiff. Id. at 745. In a strong dissent, Judge Williams criticized this decision, pointing out that the defendants had a change of heart only after seeing the plaintiff’s case unfold. Judge Williams noted that a series of hurried depositions taken on the eve of trial could not have sufficiently cured the prejudice occasioned by two years of silence. Id. at 747–48.
Many judges have not been as charitable as the Evans court toward defendants who retract their Fifth Amendment invocations. Several courts, including the Seventh Circuit in an earlier opinion, have issued decisions consistent with Judge Williams’ reasoning. See, e.g., Harris v. Chicago, 266 F.3d 750, 756 (7th Cir. 2001) (trial court committed reversible error by excluding evidence of defendant’s Fifth Amendment assertion); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 576 (1st Cir. 1989) (trial court correctly declined to allow defendant to testify at trial after he asserted Fifth Amendment at deposition). As a result, a defendant who changes his or her mind and decides to testify (whether due to a good faith change of heart or for tactical advantage) has no guarantee that the court will allow the subsequent testimony, and even if it does, that the court will exclude evidence of the defendant’s prior invocation of the Fifth Amendment.