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Fifth amendment or interrogation ?

Borrego Springs, CA |

A person files a civil suit, as pro-per, The defendant's lawyer wanted to interrogate him, should he take the fifth and declare all related subject will be only for the trial, at the trial? (if he reveal information via interrogative this would be bad for sure, as a pro-per right?)

Attorney Answers 4

Posted

The Fifth Amendment applies when you're making a statement that could incriminate you in a criminal offense. Does it apply to a civil case? It can - if there is potential criminal liability and there are admissions to that crime.

Yes, a person has the right to proceed pro per, but if the issues are beyond your knowledge, skill and are potentially harmful to your position (either criminally or civilly), it's time for a lawyer.

The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case.

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Posted

The assertion of the right to be free from compelled self-incrimination may be made in the context of civil litigation.

But the assertion can be costly.

Courts have held that refusing to answer in the civil context can be disciplined under rules of civil procedure as a failure to cooperate in discovery. Disciplines under the rules can include an award of costs/fees, and can include instructions to a jury that they may presume that the answer to the question refused would be unfavorable to the party asserting the right.

This answer is not a substitute for consulting with and retaining the services of an attorney for your legal needs. By providing this answer, I am not entering into an attorney client relationship with you.

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5 comments

Asker

Posted

In that case it is wise to give dumb answers! LOL

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

Nope. That'll put you in the same boat as refusing to answer.

J Charles Ferrari

J Charles Ferrari

Posted

It is wise to get an experienced litigator to handle the case.

James M Henderson Sr.

James M Henderson Sr.

Posted

Giving a knowingly false answer or otherwise failing to cooperate in discovery are dangerous courses that risk more than just a lost case. A false answer in a civil case, deliberately given to deceive the opponent and the court, can result in criminal prosecution for perjury.

Asker

Posted

"Dumb" is not fault, extort or lie! they are different notion for answering! Thanks

Posted

The Fifth Amendment protects your right to refuse to answer any question, including an interrogatory, which may implicate your guilt in a criminal matter. The right to avoid self-incrimination is a fundamental right that must be respected regardless of whether or not the question arises in a civil trial. However, as some of the attorneys here have mentioned, the practical result of pleading the fifth is different in a civil trial than it would be in a criminal proceeding. In some cases, a civil jury can take the fact that you plead the fifth into account in determining liability. Moreover, frivolous uses of the Fifth Amendment in response to interrogatories can result in claims that you are abusing the discovery process.

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1 comment

Asker

Posted

Very good input, thanks

Posted

The Fifth Amendment does not apply to civil actions, especially if the person "taking the Fifth" is the Plaintiff. By filing a lawsuit, the Plaintiff is exposing himself to the discovery process, including deposition.

ALSO, the Fifth Amendment is meant to protect citizens from self-incrimination as against "state action". If there is no "state action" there is nothing to be protected from.

Requesting, receiving, or accessing general information on Avvo or other web sites does not create an attorney-client relationship. If you wish to have Paul Stanko review specific questions on which you need legal advice, you may contact him by telephone (888-778-2656), email (indianadui@yahoo.com), or you may go to his web site: http://www.paulstanko.com/. Unless Paul Stanko reviews your specific situation and takes you on as a client, no attorney-client relationship is created. Paul Stanko is licensed to practice in Indiana only.

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4 comments

James M Henderson Sr.

James M Henderson Sr.

Posted

I disagree with the assertion that the Fifth Amendment does not apply to civil actions. The right to be free from compelled self-incrimination applies whenever one is at risk of being required to speak words that risk providing evidence of one's criminal culpability, where the requirement (compulsion). Can this occur in a civil context? Imagine a civil case, for example, brought under Section 1985(3). There, the plaintiff claims that defendants have conspired to violate their right to interstate travel. In a deposition, the plaintiff's attorney inquires about meetings had among the defendants and others planning a campaign of interference with the operation of a business in order to frustrate the plaintiff's plan to travel from another state to engage in business at the targeted business. To answer the question, a defendant might be required to risk criminal prosecution for criminal conspiracy, criminal violation of civil rights, etc. Not far fetched at all. In a divorce action, an aggrieved spouse bringing an action based on adultery, learned of the adulterous relationship by surreptitiously recording all telephone conversations. After learning of the affair, the aggrieved spouse hires a detective to prove up the infidelity. During a deposition, the aggrieved spouse is asked whether he had used electronic recording devices to record his wife's telephone calls without her consent. To answer honestly would be to provide evidence of a criminal violation. How these cases turn out depend on a variety of factors, of course. It seems likely that, at a minimum, a court might instruct a jury that the refusal to answer a question entitles the jury to presume that the answer to the question would be unfavorable to the witness. But the vagaries do not equate with unavailability of the privilege against self-incrimination in civil actions.

Paul Stanko

Paul Stanko

Posted

Reasonable minds may differ, but if an opposing party in a civil action were to interpose a fifth amendment privilege to avoid testifying, I would seek an order to compel their testimony and sanctions.

James M Henderson Sr.

James M Henderson Sr.

Posted

We don't disagree, I suspect. You would move for sanctions. The privilege claimant would then offer argument supporting the claim of a privilege. If the claim was well founded, the court would be in a position to require that the privilege be waived, that claims or defenses based on the claim be waived or dismissed, and/or that sanctions be awarded.

Paul Stanko

Paul Stanko

Posted

Agreed.

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