Interestingly, the 2d Circuit also held that the court erred by allowing the jury to draw a negative inference because of the plaintiff's invocation of the 5th Amendment during a deposition reasoning:
The instruction accurately states the law insofar as “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.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Such adverse inferences are appropriately admitted, however, only if they are relevant, reliable, and not unduly prejudicial. See Brink’s Inc. v. City of New York, 717 F.2d 700, 710 (2d Cir. 1983). We conclude that the district court exceeded the bounds of its discretion in admitting and permitting the adverse inferences to be drawn here. First, most of the questions in Woods’s deposition were merely whether Woods had been accused of something. Even assuming her answers would have been “yes,” accusations have little, if any, probative value because the innocent and guilty alike can be accused of wrongdoing. Without more, accusations do not “impeach the integrity or impair the credibility of a witness.” Michelson v. United States, 335 U.S. 469, 482 (1948). Thus, Woods suffered acute prejudice from the admission of adverse inferences based on her answers to those deposition questions and from the court’s related instructions. 22 Second, Woods suffered even harsher prejudice from the admission of an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of a conviction only when the crime is a felony or the court “can readily determine that establishing the elements of the crime” required proving a “dishonest act or false statement.” The district court here failed to consider whether the requirements of Rule 609(a) were met. The results of a Rule 609(a) analysis are especially important in this case because the record is unclear as to what, if any, crime Woods was convicted of. Indeed, there was only a reference to “disorderly conduct,” which is not necessarily “dishonest,” much less “immoral” or “unethical.” An adverse inference based upon Woods declining to answer that deposition question is of questionable probative value on the issue of her credibility. Third, the danger of unfair prejudice is high when a jury is told that a witness declined to answer a question by invoking the Fifth Amendment; the implication is, at best, that the witness refused to answer because she had something to hide. We tolerate some danger of prejudice from such inferences in civil cases, unless it substantially outweighs the probative value of those inferences. See Brink’s Inc., 717 F.2d at 710. Here, the way in which Woods’s Fifth Amendment invocation was raised and later argued at closing elevated the prejudice to an intolerable level. Woods’s Fifth Amendment invocation 23 was repeatedly emphasized—defense counsel raised it during Woods’s crossexamination, the district court instructed the jury on it, and defense counsel argued it during his summation. Although defense counsel attempted to moderate this line of argument, see J. App’x 632 (“I am not hanging my hat on [the] Fifth Amendment invocation.”), he did so only after forcefully highlighting the inferences that the jury was permitted to draw. In arguing that the entire case hinged on Woods’s credibility, defense counsel told the jury “you are permitted in this case to infer that Ms. Woods was the subject of a government grand jury investigation, was accused of fraud, lying, fabricating events, and misrepresenting facts to the government and was then convicted of a crime.” Id. Defense counsel’s statement was consistent with the district court’s instruction, but the inferences that the jury was permitted to draw did not necessarily mean anything with respect to Woods’s credibility or character for truthfulness. Apart from allowing such vigorous argument on this point, the district court erred by failing to engage in the required Rule 403 analysis. See Brink’s, Inc., 717 F.2d at 710. In our view, the unfair prejudice Woods suffered substantially outweighed the minimal, if not immaterial, probative value of Woods’s Fifth Amendment invocation. Accordingly, it was error for the district court to admit those invocations into evidence and to instruct the jury as to what it was allowed to infer from them.