A defendant or witnesses in a civil case may plead the Fifth Amendment right against self-incrimination. The person pleading the fifth must show that there is a real possibility that the information sought can be use against them in a pending or future criminal case.
By Brad Nakase, Attorney
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Yes, the Fifth Amendment can be invoked in a civil action. Being primarily associated with criminal cases, the benefits of the Fifth Amendment to the United States Constitution, which stipulates that any person involved in a criminal case shall not be forced to witness against themselves, extends towards civil litigation as well.
Pleading the fifth in a civil case can protect a person from self-incrimination, but it also risks creating an inference of guilt among jurors or judges. The invocation of the Fifth Amendment in a civil case is a denial of responses to issues that may be used against a person in a subsequent criminal trial. This is because in a related criminal prosecution, the information disclosed during the civil proceeding could prove to be damaging to the prosecution’s case.
There are implications for pleading the Fifth Amendment in civil litigation. While pleading the fifth in a civil case ensures one’s constitutional rights are respected, it can sometimes hinder the fact-finding process of the court. In contrast to criminal cases, where the use of the Fifth Amendment cannot be made as proof of guilt, in civil cases, the jury or judge may take negative implications from the refusal of the party to testify. This implies that the nonresponse to the questions is admissible as a potential ground on which the liable party may have the final decision on the civil case.
A good instance is when one party in a civil case gives no response regarding their behavior on any ground; e.g., their answer would have been disadvantageous to their case if the fact were stressed by a judge or a referee. This may affect the outcome of the determination of the final civil suit. Therefore, it is necessary for a civil litigation attorney to take into account the possible outcomes of the use of the Fifth Amendment in a civil situation and to consult a lawyer if they plan to practice this.
The benefit of pleading the fifth in a civil case is safeguarding against potential criminal charges, though it may lead to adverse judgments in the civil matter. Pleading the fifth in a civil case can be a strategic move, but it often leads to speculation about what the party might be trying to hide. In a civil case, if you plead the Fifth Amendment it does not mean that you have confessed your guilt. The constitution of the United States has a safeguard codified under the Fifth Amendment which prevents any person from giving a statements which incriminates him in a court of law, either civil or criminal. Fundamentally, this right is about safeguarding people from taking action against themselves in criminal matters, for example, offering a statement or proof that could possibly establish their blame.
However, it’s important to understand the different implications of invoking the Fifth Amendment in civil versus criminal cases:
Thus, when pleading the Fifth in a civil case, it is not a reflection of admitting guilt but rather the use of a right given by the constitution. Nevertheless, this conclusion can trigger unfavorable implications that will influence a civil case; therefore, such a choice should be deliberated over and consulted on with an attorney.
Indeed, you may plead the Fifth Amendment right during a civil deposition. Not only in criminal cases but in civil cases as well, including depositions, the privilege against self-incrimination under the Fifth Amendment applies. Inasmuch as the Fifth Amendment allows ‘every person’ from the obligation of testifying against themselves, it only does so by requiring such person to ‘incriminate himself. When a witness considers pleading the fifth in a civil case, they avoid potential self-incrimination, but they also forgo the opportunity to clarify their position.
Here are a few key points about invoking the Fifth Amendment in a civil deposition:
Therefore, although the Fifth Amendment privilege can be invoked during a civil deposition, it is advisable to be used mindfully, and usually it is highly recommended to consult an attorney before doing so, as the pleading of the privilege may have consequences for the civil case.
According to the Fifth Amendment, “No person. . . be essentially be used as a witness against himself.” The Supreme Court has repeatedly confirmed that the protection provided encompasses not only answers which would in themselves support a conviction under federal criminal law, but also those which might lead to that link in the evidence needed to prosecute the claimant for a criminal offense. The United States Supreme Court has ruled that the same language in the Fifth Amendment to the Federal Constitution is made applicable to state action through the 14th Amendment. Any party or witness in a discovery proceeding may claim the privilege against disclosure on grounds that the information demanded of him might establish a link in the chain needing to prosecute him under either federal or state law. The act of pleading the fifth in a civil case can be a critical defense strategy, but it often leaves critical questions unanswered, impacting the litigation process.
The privilege of pleading the fifth in a civil case does not preclude adversaries during civil litigation to search for evidence from another source. The approach that should logically be adopted, in view of the foregoing, is to assert the privilege as broadly as the situation warrants in order to close a possible avenue through which the incriminating information may be discovered from another source. The appeal to right of course is quite logical, as in case with it, the consequences which were caused by prosecution under the applicable criminal law are significantly more to be called as unbearable. Defense counsel is wise to recall: When many people talk, it is the beginning of danger. The method of such evasion is silence. The chatterbox of a parrot is locked in a cage. Other birds, not having language, can fly wherever they want.
The party or witness who wishes to plead the 5th Amendment must assert the privilege as to particular questions asked or other evidence sought. A total failure to appear or testify is not enough. (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045.) Failure to assert the privilege diligently and without delay, or silence as to the privilege when the party knows, or should know, of such relationship, may operate as a waiver thereof. This is a response in respect of interrogatories, Requests for admissions, document porch, and depositions. (See, e.g., Brown v. Sup.Ct. This is what the court also said in this case (Boorstin). However, for the case (1986) 180 Cal.App.3d 701, 712, in which Plaintiff served interrogatories asking Defendant over matters that he was facing criminal charges for. The defendant did not reply within the specified time frame. His subsequent efforts to evade detection by pleading guilty were ineffectual. The court held “Defendants had ample chance to timely oppose based on the Fifth Amendment, and did not oppose, therefore overruling their right.”
Pleading the fifth in a civil case can strategically prevent damaging admissions, but it may also paint the defendant in a negative light, affecting the case’s outcome. When the opposing party claims that your client’s right to self-incrimination is being violated, you have an obligation to make a record by ensuring that the opposing party finds holes as deep as possible. Make specific inquiry that would encourage the answer in the protection of defendants in large. This is because you have enough materials to offer to court for scrutiny of how the asserted privilege applies and in every issue of record creation that will have an opportunity of seeking an adverse inference. The higher the number of times the privilege gets waived, the higher the ability that you will have as a right to use it against the defendant. By pleading the fifth in a civil case, a party can maintain their silence, but this action may allow the opposing side to build a stronger case against them.
When filing your motion to compel answers, the burden is on the objector to demonstrate that the testimony or any other evidence might be used to incriminate the testifying party. This particularized inquiry, the Court, must also determine whether a claimant has met the burden of establishing the preliminary facts as to each claim of privilege. It has to determine with a record result whether the asserted privilege is applicable with respect to every question or other item. (Ibid.)
Pleading the fifth in a civil case can be a double-edged sword, offering protection from self-incrimination but potentially weakening one’s legal stance in the civil proceedings. In civil cases, however, “the Fifth Amendment does not bar adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”
The Californian courts have reached the same conclusion regarding a balance between civil and criminal consequences. A party that asserts a privilege to withhold evidence that the other party regards to be essential to a claim or defense of the case will be stopped by the court from asserting that particular claim or defense during the trial. (Steiny & Co., Inc. v. California Elec. Fremont Indem. Co. v. Sup.Ct. (Sharif) 82 137 Cal.App.3d 554, 560 courts could order dismissal of the suit against the fire insurance company where the plaintiff pleaded the 5th Amendment privilege to forbid demanding the facts of the arson and setting the fire.
The Role of Protective Orders and Immunity
In cases where a trial court is presented with a case involving a civil defendant who stands possible criminal prosecution implicating the same facts as the civil action, accommodation of the various interests is also sometimes made to the civil defendant although it is done from the standpoint of fairness, instead of any constitutional right. Courts realize the no-win situation confronted by a defendant in that defense of the civil suit by answering questions that might incriminate him, depending on the one hand and losing the suit by claiming the constitutional right and staying silent on the other hand. Meanwhile courts must also have an eye on the interests of the plaintiff in civil litigations where defendants are subjected to simultaneous criminal prosecution and those of the courts in disposing of civil cases justly and promptly. (Blackburn v. Superior Court (1993) 21 Cal.4th 662; Fuller v. Superior Court (2001) 87Cal.App.4th 299), 414.
The parties to a civil suit argue that they are entitled to an efficient, as well as a regarding resolution of their civil and the court has a responsibility to guard against gamesmanship and to avoid undue delay. (Gov. Code, § 68607) It would be grossly unjust to plaintiffs if a defendant could invoke the privilege against self-incrimination and later claim the right to give his side of the story to the jury in the same proceedings. Such hot and cold approach cannot be allowed on his part. However, indictment of a man cannot facilitate him to block either whole or partial civil litigation of same or related underlying subject matter Justice is measured in both criminal and civil litigation.
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