The opinion of the court was delivered by: Justice Kilbride
Docket No. 90623-Agenda 23-September 2001
The primary issue presented by this appeal is whether article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, §10) provides a privilege against self-incrimination based upon a person's fear of criminal prosecution by a foreign sovereign. Plaintiffs filed a class action on behalf of Venezuelan nationals or residents against defendant John Fisk (the sole defendant in the instant case), AT&T Corporation, AT&T subsidiaries and employees, and other American corporations, seeking recovery for personal injuries and wrongful deaths caused by a natural gas pipeline explosion in Venezuela. Following a motion to compel discovery, defendant refused to answer numerous questions, asserting his privilege against self-incrimination under the fifth amendment of the United States Constitution (U.S. Const., amend. V). Defendant contended that his answers could subject him to criminal prosecution in Venezuela.
The circuit court granted plaintiffs' motion to compel. While the court found that defendant harbored a reasonable fear that his testimony could be used against him and that he could be extradited to Venezuela, the court further found that United States v. Balsys, 524 U.S. 666, 141 L. Ed. 2d 575, 118 S. Ct. 2218 (1998), foreclosed defendant's reliance on the fifth amendment and article I, section 10, of the Illinois Constitution. The appellate court reversed, finding that the privilege against self-incrimination provided by article I, section 10, of the Illinois Constitution is broader than that of its federal counterpart and protected defendant, who feared his testimony would be used in a prosecution by another sovereign. 317 Ill. App. 3d 798, 804.
We granted plaintiffs' petition for leave to appeal. 177 Ill. 2d R. 315. On appeal to this court, plaintiffs primarily argue that (1) the circuit court erred in finding that defendant was subject to extradition to Venezuela; and (2) the lower courts' decisions are unclear as to whether defendant can be compelled to testify about third parties and their conduct. Plaintiffs fail to raise the issue of whether the appellate court properly reversed the trial court by interpreting the scope of the Illinois Constitution's privilege against self-incrimination to extend to fear of foreign prosecutions. The issue was, however, adequately briefed below. We therefore consider it (see People ex rel. Chicago Bar Ass'n v. State Board of Elections, 136 Ill. 2d 513, 523 (1990) (we may consider issues of constitutional magnitude sua sponte) and hold that defendant cannot invoke the article I, section 10, privilege against self-incrimination based on a fear of prosecution in a foreign jurisdiction. As a result, we need not reach the remaining issues.
Plaintiffs allege that, in September 1993, defendant worked as a project manager for a company that was overseeing the installation of an underground fiber-optic telephone cable in Venezuela. While the project was underway, a rotoexcavator operated by a subcontractor came into contact with a natural gas pipeline near a Venezuelan highway. Plaintiffs seek recovery for the multiple injuries and deaths caused by the resulting explosion.
After the incident, Venezuelan authorities filed criminal charges against defendant for incendio in forma culposa *fn1 and issued a warrant for his arrest. Likewise, a Venezuelan citizen filed criminal charges against defendant, also for the offense of incendio in forma culposa. *fn2 Defendant has since returned to the United States and has not answered the criminal charges.
Numerous civil lawsuits also ensued, including the one sub judice. In the instant case, plaintiffs pursued discovery through interrogatories and a deposition. Throughout the discovery process, defendant refused to answer most of the interrogatories and questions posed during deposition, expressly relying upon his fifth amendment privilege against self-incrimination. Specifically, defendant refused to answer questions relating to his job title, duties, and involvement in the project. Plaintiffs filed a motion to compel. In opposition, defendant contended that his testimony could be used against him in conjunction with the criminal charges pending in Venezuela, that he was charged with an extraditable offense, and that he had a reasonable fear of self-incrimination if he testified.
The trial court originally agreed with defendant, finding that he had a reasonable fear of prosecution and extradition, and that the questions posed to him fell within the parameters of the privilege. While holding that defendant could assert the privilege, the trial court did not cite its basis for believing defendant possessed a reasonable fear of foreign prosecution. Plaintiffs later sought reconsideration of the trial court's ruling based upon the United States Supreme Court's decision in Balsys. In Balsys, 524 U.S. at 700, 141 L. Ed 2d at 601, 118 S. Ct. at 2236, the Supreme Court held that a witness cannot assert his fifth amendment right against self-incrimination out of fear of foreign prosecution. Defendant countered that the privilege could nevertheless be exercised through article I, section 10, of the Illinois Constitution. The trial court rejected defendant's argument and granted the motion to compel, finding that, there being no case law directly on point in Illinois, the rationale in Balsys should control. Defendant made known to the trial court his plan to continue to assert the privilege. In order to expedite the appeal (see 155 Ill. 2d R. 304(b)(5)), the circuit court entered an order holding him in contempt and fining him $10.
The appellate court reversed, finding that article I, section 10, of the Illinois Constitution provides an independent source for the privilege against self-incrimination. The court noted that Illinois does not always interpret article I, section 10, in "lockstep" with its federal analogue. In fact, the court observed, in appropriate circumstances, the Illinois Constitution's guarantees may be interpreted more broadly than those in the federal constitution. See People v. McCauley, 163 Ill. 2d 414 (1994) (rendering a more expansive reading of article 1, section 10, right to counsel than the Supreme Court's interpretation of the fifth amendment right to counsel as articulated in Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986) (holding that police do not have to inform a criminal defendant that an attorney is waiting to speak to them in order to obtain a valid waiver of fifth amendment rights)); but see People v. Perry, 147 Ill. 2d 430 (1992) (interpreting article I, section 10, lockstep with the fifth amendment interpretation in McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991) (holding that request and appointment of counsel for a defendant under the sixth amendment did not constitute request of counsel for fifth amendment purposes when the police chose to interrogate a defendant on uncharged offenses)). After considering the policies underlying this state's privilege against self-incrimination, the appellate court determined that the protections of article I, section 10, extend to defendants having a reasonable apprehension of foreign prosecution. 317 Ill. App. 3d at 804. We now reverse.
In finding there was no privilege against self-incrimination in regard to a foreign prosecution embodied in article I, section 10, the trial court expressly relied on, and the appellate court expressly ...