The 5th Amendment and you

Anyone who watches a cop show on TV and certainly anyone who is reading this blog, knows that you DO NOT TALK TO THE POLICE.  You simply don’t.  Especially not without a lawyer there  to protect you in any criminal case.  But what about in a civil case?

First, be aware that you do not have an obvious 5th amendment right not to incriminate yourself if you are being sued for money by another person or company.  You might, however, have a right not to testify if your testimony might open you up to criminal charges.  So it’s a little tricky and you should talk to a lawyer before testifying to be sure you aren’t opening yourself up to more trouble than you think.

Second, what happens if you DO invoke your 5th Amendment right not to testify.  You don’t have to tell them why you don’t want to testify.  So what happens?  Generally, in a civil lawsuit the other side can read the question and your refusal to answer on 5th Amendment grounds to the jury.  Then they ask to jury to keep this refusal in mind as they consider the evidence.  The result is, Yes, You Got It, the jury will think the worst of you.  Still, that may be better than admitting to a crime.

True life story:

I had a case many years ago where my client had been arrested for Murder One.  The Big Show.  But he also had been in a car accident case. So they wanted to take his deposition.  Have you guessed what the first question was yet?  “Tell me [John] where are we?” Me:  Object on 5th Amendment grounds.  Her: “John, why are you in jail?”  Me: “Ditto!”  Her: “John are you going to answer my questions?” John: “I’m going to listen to my lawyer.”  Her: “John this is a civil case, you don’t have a 5th Amendment right not to answer my questions.”  Me: “WHAT? [paraphrased] That’s absolutely and completely wrong!  This deposition is over!”  Her: “We’ll see what the Judge says.”  Me: “Darn right we will.”  Guess what?  I won.  Guess what else?  She tried to use this exchange in court.   Fortunately, since I had terminated the deposition, John had never answered any relevant questions and that helped a lot.

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