Written by attorney Robert J McCarthy Jr

Avoiding self incrimination

The 5th Amendment to the U.S. Constitution guarantees that no person is forced to testify against himself in criminal proceedings. This prohibition does not apply to civil cases unless the testimony in the civil case relates to a matter in which that person could be prosecuted criminally. For example if a person is called to testify in a personal injury case car accident case and that person could be charged in a criminal case regarding the car accident, then that person cannot be forced to testify about anything that could incriminate him about criminal charges related to the car accident. If a person exercises their rights under the 5th Amendment in a civil case, often a negative inference may be drawn from that act. Unlike a civil case, if a person exercises their rights under the 5th Amendment in a criminal case, a negative inference may not be drawn. Many people are familiar with the 5th Amendment as the concept of "pleading the Fifth" or "taking the Fifth" is n used in TV shows and because of "Miranda Warnings." Regarding Miranda Warnings, the police who read those warnings are serious. Anything that a criminal suspect says to the police will be used against them in court. Therefore, if you are a suspect in a criminal matter always remain silent as is your right. Most states have a clause in their state constitutions that is similar to the 5th Amendment. Massachusetts has one in Article XII, of the Declaration of Rights. 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 vs. 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). In order to avoid self incrimination in a criminal or civil case in Massachusetts 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." See more at: *The above information is very general in nature and should not be considered or relied upon as legal advice. If a reader has a legal problem immediately consult an attorney for specific legal advice. See the disclaimer at the bottom of the page for more information.

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