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Avoiding self incrimination in Massachusetts civil cases

Posted by attorney Robert McCarthy

Article XII, of the Declaration of Rights to the Massachusetts Constitution states:

No subject shall be... compelled to accuse, or furnish evidence against himself.

Massachusetts has long held that a party in a civil case seeking shelter under the privilege against self-incrimination of the Fifth Amendment to the United States Constitution and Art. 12 of the Declaration of Rights of the Constitution of Massachusetts may be the subject of a negative inference by a fact finder. TOWN OF Falmouth V. Civil Service Commission, 447 Mass. 814, 826 (2006); citing: Lentz v. Metropolitan Prop. & Cas. Ins. Co., 437 Mass. 23, 26 (2002), citing Kaye v. Newhall, 356 Mass. 300, 305-306 (1969), and Phillips v. Chase, 201 Mass. 444, 450 (1909).

Therefore in order to avoid self incrimination in a civil case a witness may answer potentially incriminating questions as follows:

"Pursuant to the right afforded to me under the Fifth Amendment to the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights, I respectfully refuse to answer."

Disclaimer: None of the information or materials posted above is intended to constitute legal advice. Viewing this outline does not constitute an attorney client relationship. Local counsel should always be consulted before contemplating any legal action. The above information is general in nature and should not be undertaken without the express advice of an attorney of your choosing.

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Rob McCarthy is an attorney licensed to practice law in the Commonwealth of Massachusetts, before the military courts of the United States, before the United States Court of Military Appeals and before the federal district court of Massachusetts. He is a former officer in the U.S. Marine Corps and was a candidate for the U.S. Congress from Massachusetts in 2010. He may be reached at 781-816-9001.

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