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Fifth Amendment – Can negative inferences be drawn from a party’s invocation of Fifth Amendment rights in a civil case?
Posted on Nov 5 2012 10:08AM by Attorney, Jason A. Lee
Brief Summary: The Tennessee Supreme Court recently held that negative inferences can be made from a party’s invocation of the Fifth Amendment in a civil case “only when there is independent evidence of the fact to which a party refuses to answer”.

Analysis: The recent Tennessee Supreme Court decision of Rondal Akers v. Prime Succession of Tennessee, Inc., No. E2009-02203-SC-R11-CV, 2012 WL 4320591 (Tenn. 2012) determined whether it is appropriate to provide a jury with instructions that negative inferences can be made when a party invokes the Fifth Amendment privilege in a civil case. The Fifth Amendment privilege is found in the Fifth Amendment to the United State Constitution. This amendment provides that no person shall “be compelled in any criminal case to be a witness against himself.” Akers at 8 (citing U.S. Const. amend. V). Federal Courts have held that the Fifth Amendment protection also applies to civil proceedings and civil trials but only “under those circumstances in which the person invoking the privilege reasonably believes that his disclosures could be used in a criminal prosecution, or could lead to other evidence that could be used in that manner or where the disclosures would not be directly incriminating, but could provide an indirect link to incriminating evidence.” Akers at 8 (citing Doe v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000)).

Therefore, the next question is, can a negative inference be drawn from that party’s, invocation of the Fifth Amendment right in a civil case? The United States Supreme Court has ruled that the trier of fact can draw negative inferences from the party’s invocation of the Fifth Amendment under certain circumstances. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). (See also Tennessee Court of Appeals decision in Levine v. March, 266 S.W.3d 426, 442 (Tenn. Ct. App. 2007) which stated “the majority of jurisdictions, including Tennessee, permit fact finders to draw adverse inferences against parties who invoke their Fifth Amendment rights in a civil case.”) However, since that decision other courts have found that the Baxter rule is not a blanket rule. The Ninth Circuit Court of Appeals Doe case discussed the circumstances under which negative inferences can be made as follows:

[L]ower courts interpreting Baxter have been uniform in suggesting that the key to the Baxter holding is that such adverse inference can only be drawn when independent evidence exists of the fact to which the party refuses to answer. Thus, an adverse inference can be drawn when silence is countered by independent evidence of the fact being questioned, but that same inference cannot be drawn when, for example, silence is the answer to an allegation contained in a complaint. In such instances, when there is no corroborating evidence to support the fact under inquiry, the proponent of the fact must come forward with evidence to support the allegation, otherwise no negative inference will be permitted.

Doe at 1264. The Tennessee Supreme Court in the Akers case agreed with the standard found by the Doe court. Akers at 9. As a result, the Tennessee Supreme Court held that “the trier of fact may draw a negative inference from a party's invocation of the Fifth Amendment privilege in a civil case only when there is independent evidence of the fact to which a party refuses to answer by invoking his or her Fifth Amendment privilege. In instances when there is no corroborating evidence to support the fact under inquiry, no negative inference is permitted.

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Attorney answers 4

Posted

Great issue for an article. It seems that since the principles of the 5th are rooted in the Constitution, the policy considerations should prevent an adverse inference in civil cases because otherwise there would be a chilling affect on a person exercising their 5th amendment right in criminal investigations. Granted, in civil cases we are just fighting over money and not life and liberty. Just my .02 cents. Look forward to input from other posters.

Robert H. Hanaford

Robert H. Hanaford

Posted

To the post: The short answer is that in criminal cases exercise of the 5th amendment right against self incrimination is inadmissible. But, in civil cases the fact that a person refuses to answer may be admitted with the inference: If you are innocent, then you will want to say so.

Asker

Posted

if i use the 5th in civil court with a judge sitting with out a jury . and there is no corroborating evidence to support the case but there word against mine but there try to prove an assault with no physical evidence that i put my hands on someone . would it be a good move to use the 5th.

Robert H. Hanaford

Robert H. Hanaford

Posted

Depends on who the judge believes. The plaintiff has the burden of proof in a civil case--using baseball; tie goes to the runner. you would be wise to consult an attorney.

Posted

This is a fine topic, but you have evaded giving us the basic facts. Creative attorneys can, of course, argue either way. Do some more research until you find the right argument you want to make, or it comes to you in the middle of the night.

R. Jason de Groot, Esq.,

Posted

I am not sure that this post fits within the rule of the forum. I also doubt that you could obtain any valuable insight due to a lack of facts relevant to the actual case about which you are concerned. The post seems more appropriate for a philosophical discussion on an attorney chat line for TN licensed attorneys

The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.

Posted

Well you have the answer in your question. In a civil case a negative inference may be drawn by the trier of fact (judge or jury) by a party's assertion of 5th amendment protection / privilege only when independent corroborative evidence is present.