Is it lawful for a judge to order the filing of a tax return from a man or woman at a Hearing that would have the effect of forcing or coerc...

Question

Is it lawful for a judge to order the filing of a tax return from a man or woman at a Hearing that would have the effect of forcing or coercing the subjected party to

waive his or her constitutional right to not bear witness against him or herself by

signing such document?

Answer

No. Your attorney in such a circumstance would appeal, or file a writ of prohibition. Of course, failing to file a required tax return is itself a crime.

Answer

I'm not sure I agree with Mr. Stone. Tax documents cannot be required as evidence in most cases, but sometimes they can be. For example, they are often required in divorce cases so that the court will be better able to divide community property and set appropriate levels of spousal and/or child support.

Of course, you didn't ask about being ordered to produce your tax return as evidence. You asked about being ordered to file it with the IRS or FTB. I'm not sure why this concerns you.

Parties and witnesses have no general "constitutional right to not bear witness against him or herself" as you claim. The Fifth Amendment says only that no one may "be compelled in any criminal case to be a witness against himself". To sign a tax return is not equivalent to being a witness in a court case at all, much less a criminal case. That is why the general requirement that people sign their returns does not violate the Fifth Amendment.

Note, too, that parties and witnesses generally *can* be forced to testify against themselves in civil cases, including family cases. They may refuse to answer specific questions if there is legitimate reason to believe that their answers could be used against them in a criminal prosecution, but otherwise they must testify when required to do so.

You haven't told us anything about your case, so I don't know if you have grounds to challenge the order you describe. Mr. Stone may very well be right that your remedy lies in the Court of Appeal. I am a certified specialist in appellate practice (per the State Bar of California's Board of Legal Specialization), and I would be happy to discuss your situation with you in more detail. Please feel free to contact me directly.