Byrd v. Hodges

WEBB, Judge. G.S. 1A-1, Rule 8(d) provides that if a defendant does not deny an allegation in a complaint it is deemed admitted. The question posed by this appeal is whether a defendant who has been sued for punitive damages may assert his privilege against self-incrimination by refusing to plead without suffering the stricture of Rule 8(d). A defendant may plead his privilege against self-incrimination in a civil action where the plaintiff asks for punitive damages. Allred v. Graves, 261 N.C. 31, 134 S.E. 2d 186 (1964). Allred v. Graves involved the defendant’s refusal to answer questions when his deposition was taken. We must decide whether the privilege applies to protect a party from self-incrimination at the pleadings stage of an action. We hold that it does so protect the defendant. The privilege against self-incrimination is basic to our law. It is contained in the United States Constitution and the North Carolina Constitution, Art. I, § 23. We can see no reason why a party should be required to incriminate himself by pleading if he is not required to do so by deposition in a civil action. The plaintiff argues that the defendant could deny the allegations, which would not be taken as a waiver of his privilege against self-incrimination. The difficulty with this argument is that the defendant and his attorney might not be able in good conscience to deny an allegation. We should not put a party and his attorney in the dilemma of either admitting evidence of a crime and possibly suffering punitive damages or filing a pleading which either of them know to be false. We hold that in this case Rule 8(d) must yield to the constitutional right of the defendant not to incriminate himself. We reverse and remand this case to the Superior Court of Wake County with the direction that a hearing be had on the defendant’s plea of self-incrimination. If the court should find that the defendant’s answers would tend to incriminate him, it shall [511] enter an order that the allegations to which the defendant does not plead are deemed denied. Reversed and remanded. Judge MITCHELL concurs in the result. Judge Martin (Robert M.) dissents.