Pleading the Fifth in a Civil Lawsuit
What is pleading the Fifth? We see it in movies and TV shows. We see it a lot in testimony before Congress. The witness refuses to answer a question pursuant to his or her Fifth Amendment right against self-incrimination. This right comes from the Fifth Amendment to the United States Constitution. The Fifth Amendment applies to all of the states through the Fourteenth Amendment. In Missouri, the right against self-incrimination also comes from Article I, Section 19 of the Missouri State Constitution.
The Fifth Amendment
The Fifth Amendment to the United States Constitution provides that “No person shall be…compelled in any criminal case to be a witness against himself”. Likewise, Article I, Section 19 of the Missouri State Constitution provides that “no person shall be compelled to testify against himself in a criminal cause”.
Pleading the Fifth
When can someone plead the Fifth in a civil lawsuit? At any time when the answer would likely incriminate the person in a pending or future criminal proceeding. The answer does not need to directly support a conviction. The person may invoke the privilege even if the answer might merely link to a chain of evidence that would support a conviction. The protection can be invoked in any proceeding. For example, the privilege can be invoked in a civil lawsuit, administrative hearing, arbitration, or any other formal or informal procedure. Furthermore, no criminal charges need to be pending for the privilege to apply. However, the privilege applies only to individuals, not to other legal entities, such as corporations. A person testifying on behalf of a corporation cannot invoke the privilege. This is true even if the answer might incriminate him or her individually.
When to Plead the Fifth
Pleading the Fifth can be done at any stage of the litigation. For example, a party can invoke the Fifth Amendment in response to interrogatories or to a request for documents. Pleading the fifth can also be done in a deposition or at trial. Even a person who is not a party to the lawsuit may invoke the privilege in response to a subpoena to testify or to produce documents. However, pleading the Fifth carries a heavy price.
For example, the court may strike the affirmative relief pled by the party pleading the Fifth. This includes dismissing any counterclaim, cross-claim, or separate action asserted by the individual pleading the Fifth. The court may also limit the scope of discovery that the individual can conduct. Furthermore, the court can prohibit the person from changing his position at trial. The court can also prevent the person from offering certain evidence at trial.
Presumption Answer Would Incriminate
When a person invokes the privilege, there is a presumption that the answer would incriminate the person. However, the party asking the question may offer evidence to demonstrate that the answer could not possibly tend to incriminate the person. Further, the person pleading the Fifth cannot be compelled to explain how the answer would incriminate him or her. The court has wide latitude in deciding whether the answer could tend to incriminate the person. The court can order the person to answer the question if it finds that the answer could not possibly tends to incriminate the person.
Waiver of the Fifth
Finally, a person can waive his or her right to the privilege. For example, if a person admits to an incriminating situation, the person cannot thereafter invoke the Fifth Amendment regarding the details of that situation. However, a waiver cannot occur if the situation admitted to was vague. The courts must generally find that the person clearly intended to waive the right.
Take-Away
Don’t make a snap decision on pleading the fifth. You must first understand the possible repercussions. First, ascertain what crime the answer might support. Next, determine the penalties related to such crime. Third, make sure the answer would in fact support a conviction on the individual. Last, balance the disadvantage of not being able to assert a claim against the person asking the question with the protection afforded by pleading the Fifth.
Michael Sewell, JD, MBA has litigated more than 100 lawsuits in federal, state and municipal courts since 2005. Sewell Law provides professional litigation services in the areas of breach of contract, commercial litigation, general business, real estate, and torts.
Please contact Michael Sewell for an initial consultation at no charge. (314) 942-3232 | michael@sewelllaw.net.
This article is for general informational purposes only. This information is not intended as legal advice. You should consult an attorney regarding how this information might apply to your specific circumstances.
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