Proud Neighbors In Cincinnati

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Can you “take the Fifth” in a civil case?

On Behalf of | Oct 17, 2022 | Civil Litigation |

Most people know that under the Fifth Amendment of the U.S. Constitution, people cannot be required to say anything to authorities or in court that would implicate them in a crime. That means if they’re on trial, they don’t have to be called to testify.

What they may not realize is that “taking the Fifth” or “pleading the Fifth” isn’t limited to criminal cases. In a U.S. Supreme Court ruling nearly a century ago, justices determined that a person could invoke their Fifth Amendment rights in a civil case if testifying could potentially put them in criminal jeopardy.

In the ruling, Justice Louis Brandeis stated, “The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.” 

What is “adverse inference?”

It’s important to note, however, that unlike in criminal cases, a jury is allowed to use a defendant’s decision to plead the Fifth in determining their verdict. In a Supreme Court ruling over 50 years later, Justice Byron White wrote, “The Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.”

An “adverse inference” basically means the jury can’t use a person’s decision to take the Fifth in a criminal case as evidence of their guilt. In a civil case, however, they are typically allowed to consider that choice when making their decision.

Of course, each case is highly unique. That’s why it’s always wise to rely on sound legal guidance throughout any type of civil litigation in which you find yourself. 


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