Pleading the Fifth in the Civil Context

Dropping the nickel, a/k/a pleading the Fifth Amendment is most often referenced on TV dramas in a criminal setting.  Most civil practitioners do not encounter the Fifth and therefore may be unfamiliar with its role in civil litigation.  However, since the line between civil and criminal liability is not entirely clear in some scenarios impacting professionals, there may be situations when the Fifth is appropriate, albeit risky.

The Fifth Amendment to the U.S. Constitution provides that “no person shall be … compelled in any criminal case to be a witness against himself.”  While the Fifth Amendment can be invoked in civil proceedings, determining whether it should be invoked is challenging.

First, while the Fifth Amendment protects an individual against being compelled to testify against himself where the answers might incriminate him, the test as to whether an individual has been exposed to a significant risk of incrimination giving rise to a viable claim of privilege is not very precise. The applicable test is an objective one; the witness has to have a realistic basis for a fear of incrimination.

A second challenge in invoking the privilege in a civil case is that the invocation will not insulate the individual from civil liability.  In fact, to the contrary, a jury in a civil action can draw a negative inference from the individual’s silence.  Conversely, if the individual chooses to testify, his testimony can be used against him to prove guilt in a subsequent criminal proceeding.  Thus, when there are pending civil and criminal proceedings, an individual faces the difficult predicament of invoking the Fifth in the civil proceeding and hoping the jury does not draw negative inferences or testifying in the civil suit only to have that testimony be used against him the criminal proceeding.

Although assertions of the protections afforded by the Fifth Amendment are less common in the civil context, there may be a time and place where it is appropriate for the professional. But, this is not a simple decision. When it comes to considering whether to invoke the Fifth Amendment, professionals should be cautioned about the risk of a negative inference and should develop a careful plan taking into account future consequences.

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  1. Thanks, Seth and Lila, for commenting upon one of the most difficult situations a civil defendant and a defense attorney can encounter. It’s been my practice as a civil defense attorney to always enlist the services of a criminal attorney to help make the decision whether to invoke the 5th in a civil case, with the understanding that the criminal repercussions are most likely always more serious. After all, in a civil lawsuit, “it’s just money at stake”, whereas criminal prosecution concerns the individual’s liberty and has far more reaching consequences. I have also had the criminal defense attorney present at the deposition to advise and consult on the invocation. But even before getting to that point, I have attempted to delay the deposition of the defendant as much as possible with varying degrees of success. I have sought a protective order with the court, arguing that the defendant’s deposition isn’t necessary because civil liability has been admitted, or that the information sought by the plaintiff is obtainable through other means, and that the deposition is a ruse with the only purpose being to harass and abuse the defendant. Though not often, some judges have agreed with me. There is another risk factor to consider, and I saw it play out years ago concerning a co-defendant who was subject to criminal prosecution. The co-defendant lived out-of state, but came to AZ for his civil deposition. Twenty minutes into his deposition, law enforcement officials entered the conference room with an arrest warrant and hauled him away. The plaintiff’s counsel had set up the deposition and alerted local authorities. Shame on co-defense counsel for stupidly bringing his client back into the local jurisdiction, but opposing counsel also found himself facing sanctions for misuse of the civil discovery process ( his intent was not to actually depose the co-defendant, but have him arrested).

  2. grannybunny

    I had a child custody case in which my adult client’s Step-Father — with whom she lived — ill-advisedly took the 5th regarding decades-old child abuse allegations (for which he could no longer be prosecuted). He wasn’t my client, just a witness, called by the other side (since I knew he was planning to take the 5th, and it would probably prove fatal to his Step-Daughter’s case). Even though my client likely would have retained custody in a trial to the Court, the Jury concluded that the Step-Father “had something to hide” and awarded custody of the 3-year-old girl to the Father who had had very little contact with her during her young life — he lived in another state — and had wholly failed to support the Mother and Child. The Father’s attorney later confided to me that her client didn’t even want custody — and certainly didn’t think he would win it — but was using it as a ploy to try to get his Wife to come back to him.

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