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Pleading the 5th During a Civil Deposition...Can it be Used Against you?

Los Angeles, CA |

If you plead the 5th to a crime during a civil deposition, can it be used against you? I heard that during a criminal trial it can't but during a civil trial it can. If this is true, can you please elaborate WHY it can be used against you?

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Attorney answers 3

Posted

There is no 5th amendment privilege in civil cases.
Why, because there is no statutory or constitutional protection in civil cases.

The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

Asker

Posted

So what does that mean? If you invoke the fifth, what can happen?

Michael Charles Doland

Michael Charles Doland

Posted

A motion to compel you to answer could be filed with the court.

Asker

Posted

But say the judge already approved you pleading the 5th so that's not a problem. Can doing so be used against you?

Michael Charles Doland

Michael Charles Doland

Posted

I have never heard of a judge pre- or post- approving taking the 5th in a civil case so cannot imagine what you mean or how that happened. If true, and you "took the 5th" then there is nothing to hold against you in a criminal case.

Posted

Mr. Doland is correct. The Fifth Amendment is a protection from criminal responsibility. That's why it says you cannot in"crim"inate yourself. You can't be held criminally liable in a civil action. Discuss this with your lawyer. If you don't have one and are concerned about possible criminal activity, get one.

The information provided is for general informational purposes only and is not intended to be legal advice. I am only licensed in the Commonwealth of Pennsylvania and I am not providing you with specific legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information provided may not apply to any specific factual and/or legal set of circumstances and/or the jurisdiction where you reside. No attorney-client relationship is formed nor should any such relationship be implied. The information provided is of a general nature is not intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. Your question, although you may believe is simple, it is not simple. You require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.

Asker

Posted

So what does that mean? Can it be used against you?

Samuel Cohen

Samuel Cohen

Posted

Yes.

Posted

I would disagree with my colleague. DeCamp v Kingsington (1978) 83 Cal. App. 3d 268 dealt with a situation where a corporation and an individual both refused to file verified answers as it would be an admission of fraud. The Court held that the Corporation had no right against self incrimination but the individual defendant did.

Not to incriminate yourself is a privilege you must assert. If you answer part of a question that is covered by the privilege, you waive that privilege and once waived, its gone forever. Now, to answer your question, in a civil case you may not be punished for the assertion of a privilege but, there are evidence codes that state if a party has the power to produce evidence, or fails to explain evidence and does not do so, then the court may find the party less credible in not producing the evidence or taking the other sides facts as presented as you failed to explain them away (based upon the assertion of privilege)

A proper response would require a thorough investigation into the history and background of this relationship. The information provided above is just that, information, to be used as you see fit.

Christopher Muir Neumeyer

Christopher Muir Neumeyer

Posted

With all due respect to the above gentlemen, one MAY refuse to answer in civil or administrative proceedings based on one's Fifth Amendment rights. See Kastigar v. US, 406 US 441, 445 (1972), in which the Supreme Court stated the Fifth Amendment privilege "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory." In fact, it happens all the time. Casey Anthony refused to answer countless civil deposition questions on that basis. Same for Michael Jackson's doctor. Same for IRS employee Lois Lerner when being questioned by Congress earlier this year. And same for countless corporate executives being questioned in civil actions concerning fraud, price-fixing and other conduct in which parallel civil and criminal actions are pending or possible. In fact, I have represented several non-party witnesses who invoked the Fifth in civil depositions. And, as the questioner stated, invoking the Fifth in a civil action CAN be used against you, unlike in criminal actions. In civil actions, the judge or jury ARE permitted to draw adverse inferences from a refusal to testify. See Baxter v. Palmigiano, 425 US 308, 318 (1976). However, they are not mandated to draw adverse inferences, and they are not permitted to draw adverse inferences in all cases, but the court may allow for such inferences, if it feels the circumstances warrant it. See SEC v. Jasper, 678 F.3d 1116, 1126 (9th Cir. 2012). So, it's a balancing act. In the civil action, a defendant may wish to invoke the Fifth and refuse to testify in order to avoid potential criminal liability, but doing so may open him to adverse inferences in the civil action that could result in civil liability. That's just the tip of the iceberg, though. There are many complex and serious implications of asserting the Fifth in civil proceedings, or not doing so, so any witness or party who may be subject to both civil and criminal liability should consult with qualified Fifth Amendment counsel.