October 2, 2023

Incriminating a Witness For Testifying S/he Used Illegal Substances

Can a witness be incriminated for testifying in a deposition in a worker’s compensation, noncriminal proceeding that he used unlawful substances in the past?

There is persuasive authority that might allow a witness to be compelled to testify whether s/he used illegal drugs in the past. Liability for workers’ compensation may exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment in cases, including where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.

If an employee’s injury is caused by his or her unlawful use of a controlled substance, it may be necessary for the employer to ask if the employee had used illegal drugs in the past since that would be a factor in determining whether the employee’s injuries resulted from his/her own intoxication.

If the workers’ compensation case involves a psychiatric injury compensable as a mental disorder which causes disability or need for medical treatment, in order to establish that a psychiatric injury is compensable, an employee may need to demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. This may allow an employer to inquire into an employee’s past drug use to determine if the employee’s psychiatric injury was caused predominantly by the actual events of employment, or the employee’s own use of illegal substances.

If there is a witness’ communications to a psychotherapist as a patient, the evidence code may not provide for privilege as to a communication relevant to an issue concerning the mental or emotional condition of the patient if the issue has been tendered by the patient. For example, if the witness is a patient of a pschotherapist, by claiming that the patient has psychiatric injuries, the patient puts his mental condition in issue. There might not be privilege concerning communications with a psychotherapist.

As to the privilege against self-incrimination, the US Constitution states that persons may not be compelled in a criminal cause to be a witness against themselves. The self-incrimination privilege can be claimed in any proceeding, whether criminal, civil, or administrative.

However, the privilege against self-incrimination of a witness is not to keep out probative evidence. The privilege is only to prevent testimony which might be used against him in a subsequent criminal suit. A self-incrimination claim may be rejected if under the circumstances, the witness may not reasonably apprehend that the disclosures could be used against him in a criminal prosecution. For example, a warning against self-incrimination would not be required in a case involving narcotic addiction if narcotic addiction is not criminal conduct.

A party seeking civil relief may not refuse on the grounds of the privilege to testify on matters relevant to his recovery. Courts in several jurisdictions have recognized that injustice may result where the parties to litigation, exercising the constitutional privilege against self-incrimination, refuse to testify concerning matters relevant and material to the issues of the pending cause. To permit relief to someone who refuses to testify on matters which, if known, could prevent recovery, is unfair.

In a workers compensation case for civil relief, a witness who used illegal drugs in the past may be compelled to testify but may not be subject to criminal liability if narcotic addiction is not criminal conduct.

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