The opinion of the court was delivered by: WEINFELD
The essential claim by The City of New York (the "City") against Brink's, Inc. ("Brink's") is for the recovery of the loss of New York parking meter revenues allegedly stolen during the course of collection by Brink's employees. Brink's has filed third-party claims for indemnification against some sixteen of its past and present employees (collectively the "third-party defendants"), fifteen of whom allegedly stole the parking meter revenues. The sixteenth man, William Donovan, supervised the other fifteen.
The City's claim against Brink's is based upon a number of theories-some sounding in contract, some sounding in tort. Basic to each theory is proof that Brink's' employees pilfered and converted the deposits in the coin boxes; another element is damages-how much parking meter money was stolen. In an effort to establish these elements, the City has subpoenaed former and present Brink's' employees, some of them third-party defendants. The group includes five employees who were convicted of stealing funds on April 9, 1980 and other employees with respect to whom, in addition to oral testimony as to their acts and conduct on certain days, a videotape was shown to support the City's charges that they too were engaged in larcenous activities.
The City intends to ask them, inter alia, whether, acting alone or in concert with other employees, they ever stole money from parking meters while working for Brink's, or whether they know of any other Brink's' employees who did. When asked these same questions in pretrial depositions, each witness refused to answer, asserting the Fifth Amendment privilege against self-incrimination (the "privilege").
Brink's, joined by the third-party defendants, seeks to preclude upon this trial any questioning of any past or present Brink's' employee on matters with respect to which such witness may assert the privilege and to exclude any evidence of the claim of privilege.
A litigant is entitled to the testimony of any person who has knowledge of facts that are relevant to an issue in the case, subject to the witness' constitutional or other legally protected rights. Rule 402 provides:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
Rule 401 further provides that:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence.
Obviously, the fact that meter funds were stolen and the extent of the resulting losses is "of consequence," if not vital, to the City's claim against Brink's. And surely such losses are made "more probable" by testimonial admissions of thefts, or by a permissible inference that may flow from the assertions of the privilege in response to questions regarding thefts.
Accordingly, such evidence is indeed relevant even though it may not be conclusive.
Being relevant, the evidence is admissible unless excludable because of the mandate of some constitutional, statutory or other law,
or because it is unduly prejudicial.
The City may question past and present Brink's' employees about their knowledge of, and participation in, thefts from New York City parking meters. Answers to these questions, or a refusal to answer upon the assertion of the privilege, are competent and admissible evidence. The fact that such evidence is prejudicial by itself does not militate against its admission. Any evidence that gives support to one party's position is to the prejudice of the opposing side. To quote the familiar statement of Chief Judge Learned Hand, "If (the testimony) "prejudiced' (the defendant), that was precisely its entirely laudable purpose."
Or, as stated more recently, "while the testimony may very likely have worked to the prejudice of the appellant, it did so because the evidence was damning, not because its introduction was error."
In Baxter v. Palmigiano,
the Supreme Court held "that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them...."
The individual third-party defendants acknowledge that Baxter precludes an objection based on the Fifth Amendment, and that if they do assert the privilege, the jury may draw from the silence whatever reasonable inference the circumstances warrant. However, they object on the basis of undue prejudice.
Rule 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." The rule thus calls for a balancing test, with the balancing to be done by the trial judge.