Pleading the Fifth in the Civil Context

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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.