A reference made during a trial to “pleading the Fifth” is not an admission of a crime and, therefore, by itself is not grounds for a mistrial, the Indiana Court of Appeals has ruled.
In Roger Jay Piatek, M.D. and The Piatek Institute v. Shairon Beale, 49A04-1209-CT-448, the Indiana Court of Appeals affirmed the trial court’s denial of Roger Jay Piatek’s motion for a mistrial. It found the trial court’s admonition was sufficient to cure any prejudice from Shairon Beale’s reference to Piatek pleading the Fifth Amendment.
Beale filed a medical malpractice complaint against Piatek after she developed toxic epidermal necrolysis that was believed to have been caused by the medications Piatek prescribed for weight loss.
Piatek’s motion for a mistrial came after an exchange between Piatek and Beale’s counsel in the courtroom. Beale’s counsel asked Piatek a series of questions regarding I.C. 35-48-3-11 which provides for the use of Schedule III or Schedule IV controlled substances for the purposes of weight reduction or to control obesity.
Piatek’s counsel objected, saying the plaintiff’s counsel should not be asking him questions of law. At that point, Beale’s counsel, contending she was not asking Piatek to practice law, turned her attention to the Request for Admission and asked Piatek if he remembered pleading the Fifth.
As part of a pre-trial Request for Admission, Piatek was asked to admit he violated I.C. 35-48-3-11 when he prescribed Phentermine to Beale. The doctor responded “Defendants object to this Request on Fifth Amendment grounds.”
Piatek’s counsel requested a mistrial.
After hearing arguments of counsel and over the objection of Piatek’s counsel, the trial court admonished the jury that Piatek “has never pleaded the Fifth in this case and is not pleading the Fifth in this case. So disregard the question and the inference that could be made from that question.”
The COA declined to hold that a generic reference to “pleading the Fifth” subjected Piatek to greater prejudice.
The question from Beale’s counsel about whether Piatek remembered pleading the Fifth did not assert facts not in evidence. Nor did the counsel’s statement indicate the doctor had engaged in criminal activity.
“We acknowledge a reference to ‘pleading the Fifth’ suggests some underlying criminal activity and may be prejudicial,” Judge Melissa May wrote for the court. “But ‘pleading the Fifth”’ is not itself a criminal act; it is an assertion of a constitutional protection. … The trial court’s admonition to Beale’s jury was adequate.”