WHERE DEFENDANT WAS THE DRIVER OF A VEHICLE WHICH KILLED A PEDESTRIAN, IT WAS A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO COMPEL DISCLOSURE OF INFORMATION REGARDING THE DEFENDANT’S POSSESSION AND USE OF A MOBILE TELEPHONE DURING THE TIME OF THE CRASH—ORDER PLACED DEFENDANT IN A POSITION TO INCRIMINATE HIMSELF IN AN ACTIVE CRIMINAL INVESTIGATION, IN VIOLATION OF HIS FIFTH AMENDMENT PRIVILEGE.
Aguila v. Frederick, 45 Fla. L Weekly D2043 (Fla. 3rd DCA August 26, 2020):
The Fifth Amendment privilege can be asserted in any proceedings civil or criminal, administrative or judicial, investigatory or adjudicatory. It is settled law that the privilege against self-incrimination may be properly asserted during discovery proceedings, if the civil litigant has reasonable grounds to believe that direct answers to depositions or interrogatory questions will furnish a link in the chain of evidence needed to prove a crime against him.
The “link in the chain” doctrine is not strictly limited to statements. If any kind of production can constitute protected testimonial communications because it might entail implicit statements of fact, it too is afforded Fifth Amendment protection.
In this wrongful death case, where the defendant was the object of a criminal investigation, the order compelling the production of his mobile phone and the driver’s mobile phone records was error. Because it is a crime to be operating a motor vehicle while manually typing or entering letters into a mobile device under §316.305(3)(a), the compelled disclosures could well furnish a link in the chain of evidence needed to establish the defendant’s