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'Pleading the Fifth' not the same as admitting to criminal act

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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.”

 
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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