Fifth Amendment Right Against Self-incrimination in a Civil Case

• Publication year: 1998
• Pages: 83
• Citation: Vol. 27 No. 7 Pg. 83

27 Colo.Law. 83 Colorado Lawyer 1998.

1998, July, Pg. 83. Fifth Amendment Right Against Self-Incrimination In a Civil Case

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83

Vol. 27, No. 7, Pg. 83

The Colorado Lawyer
July 1998
Vol. 27, No. 7 [Page 83]

Specialty Law Columns
Civil Evidence
Fifth Amendment Right Against Self-Incrimination In a Civil Case
by Kelly M. Condon

Q: Can a party refuse to answer questions during discovery and at trial in a civil case by invoking the protections of the Fifth Amendment

A: Yes. The Fifth Amendment privilege against self-incrimination allows any party in a civil, criminal or administrative hearing to refuse to answer a question that may be incriminating in future criminal proceedings. In a civil case, however, the finder of fact will be permitted to draw an adverse inference against the witness or party invoking the privilege

Assumed Facts

Mob Guy ran Still Alive's automobile off the highway and into a ditch. Still Alive provided the police with Mob Guy's license plate, but could not positively identify Mob Guy as the driver. Consequently, the district attorney decided not to prosecute at that time. Still Alive then brought a civil action for damages against Mob Guy. Prior to trial, Defendant Mob Guy informed Plaintiff Still Alive that he would invoke his Fifth Amendment privilege against self-incrimination in response to any questions regarding his liability involving the "car accident."

During trial, Still Alive cross-examined Mob Guy regarding the car accident. Can Mob Guy invoke his Fifth Amendment privilege against self-incrimination in the context of a civil trial? If Mob Guy invokes the privilege against self-incrimination, can Still Alive insist that he do so in the presence of the jury? Can Still Alive tender a jury instruction informing the jury that it may draw inferences (including negative inferences) from Mob Guy's refusal to answer questions on the basis of Fifth Amendment privilege

Discussion

The Fifth Amendment to the U.S. Constitution provides, in part, "No person . . . shall be compelled in any criminal proceeding to be a witness against himself." Article II, § 18 of the Colorado Constitution similarly provides, "No person shall be compelled to testify against himself in a criminal case."

The privilege against self-incrimination "not only protects the individual against being involuntarily called as a witness against...