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Can Defendants in civil actions choose not to testify?

Los Angeles, CA |
Filed under: Lawsuits and disputes

I know in criminal actions, that Defendants can plead the 5th and choose not to testify, is their a similar theory in civil matters? I would think that might be an option for Defendants in civil matters, since Plaintiffs carry the burden of proof? Can Plaintiffs in civil matters choose not to testify?

Attorney Answers 3

Posted

Although the actual wording of the Fifth Amendment to the U.S. Constitution says a person shall not be “… compelled in any criminal case to be a witness against himself,” the right has been found applicable to civil actions as well. This often occurs where a party to a civil action is actually being prosecuted criminally, where there is a criminal investigation pending, or where the witnesses' testimony would tend to incriminate him or her.

I have had witnesses "take the Fifth" in a civil deposition and before a jury at trial. It did not work out so well for them in the end. Good question. Good Luck!

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Christine C McCall

Christine C McCall

Posted

In fact, there is substantial federal and California case law that holds that a civil plaintiff may be denied the benefit of "both" positions, and that the civil claim may be dismissed if the plaintiff is unwilling to testify because of 5th Amendment rights. Of course, the 5th Am invocation will likely be respected, but the civil claim is viewed as having been voluntarily initiated and need not be given such deference in this circumstance.

Posted

Not likely. Because the parties in a lawsuit are the primary witnesses in any lawsuit, it is not very likely that a defendant or a plaintiff can refuse to testify in a civil case and still win.

Certainly, if the plaintiff fails to prove a case in chief, the defendant can make a motion for nonsuit (in a jury trial) or motion for judgment (in a bench trial), so that the defendant might not have to testify. However, it would be extremely rare for a plaintiff not to have to tesify at all. A defendant in a lawsuit can subpoena (by serving a Notice to Appear At Trail) the plaintiff to testify.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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Plaintiffs can choose not to testify in their own behalf -- as witnesses in the plaintiff's case. That would be strange, but it is not illegal. At trial, the plaintiff must go first and the plaintiff would need to prove up the case -- all elements of it -- by other admissible evidence if the plaintiff declines to testify. That will ordinarily be a very difficult challenge. But there is little point to making that odd choice because the defendant can call the plaintiff as a defense witness in the defense case, and the plaintiff has no right to refuse to be called as a defense witness. So, one way or another, the plaintiff can be compelled to testify. Given that fact, it will almost always be true that the plaintiff should voluntarily testify as a plaintiff witness during the plaintiff's case in chief.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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