Say, if you just don’t want to answer the question?
I thought I knew the answer to this, but I couldn’t find confirmation, and I can think of arguments both ways.
The judge can demand your response privately to determine if your invocation is legitimate. This just happened in the Uber/Waymo/Levandowski civil case.
I’m not American but my guess is that the right to refuse to speak in case of incriminating yourself, only applies for criminal cases.
In a civil case ie. you are being sued by someone, I can’t see why the right would apply.
Again this is purely a guess but I’d think the 5th Amendment wouldn’t apply in taxation cases either. When you owe tax you are up against the wall and have to make an affirmative defense.
Incidentally the right to silence for a witness in a court room doesn’t exist in many other countries. A person may lawfully remain silent when questioned by police and refuse to give evidence. However the moment they get in the witness box they must answer all questions.
Also: The court can give you immunity from prosecution. That means that whatever you say CANNOT be used against you by the court. At this point you can’t “plead the fifth”, because you don’t NEED “the fifth”. Nothing you say would incriminate you legally, so there are no more legal ways to avoid it. Either give the testimony or [actually, I’m not sure what happens if you refuse. My guess is getting slammed with “contempt of court” or something like that.]
(If it happens to be that your testimony would get you in trouble with some third parties, well, the court isn’t so concerned about that.)
Surely this does not give immunity from perjury?
IANAY (I am not a Yankee) but my understanding is that:
-the fifth is a defence against incriminating yourself, on the witness stand, under oath, where otherwise you are compelled to testify.
-note “incriminating”. You can’t refuse to testify because it may hurt your civil case and cost you money - it’s only if you could incriminate yourself, spill the beans on your felonious misdeeds.
-your refusal to answer, pleading the ffith, cannot be taken as an admission of guilt - or taken into consideration at all - after all, you may not want to admit that you littered or urinated in public, rather than that you murdered someone.
-when talking to the police, IRS officials, etc - you are never obliged to answer.
-in an IRS tax case - are they charging you with tax evasion - a crime - or simply trying to assess back taxes - a civil case. You may refuse to answer (IF it would INCRIMINATE yourself) in a civil case; but civil cases are judged by preponderance of evidence. The IRS or the guy you cheated does not have to prove themselves right beyond a reasonable doubt - the barrier is that “preponderance of evidence”, i.e. is their case better than yours? If you leave big holes in your case, well you lose, pay the taxes or the guy who sued you - but they didn’t force you to admit to a crime, so do not go to jail, pass GO instead. So don’t do anything that can get you sued if you would have to incriminate yourself to defend your case. “I couldn’t have damaged your car, I was at the other end of town murdering Ted at the time…”
You may plead the Fifth in a civil case if your truthful answer would subject you to criminal liability.
However, the opponent is free to argue to the finder of fact that your taking the Fifth means your answer would not have helped your civil case. That is, your opponent can say to the jury, “And he took the Fifth rather than answer what happened to the missing money that was in his petty cash account! That certainly suggests he converted those funds to his own use, and so you should find against him on the tort of conversion.”
In a criminal case, the prosecutor is forbidden from making an analogous argument to the jury.
Nope. Can’t claim the Fifth based on the idea that if you testify, you’re going to lie, and that’s perjury. See United States v. Seewald.
Note that the basis for your Fifth Amendment claim must be a colorable fear of criminal consequence, NOT necessarily guilt of a crime.
An example I gave ten years ago here:
Isn’t the judge supposed to instruct the jury not to make an adverse inference from taking the Fifth?
Prophylactic instruction on defense request, per Carter v Kentucky.
You can buy a Hercules mask?
Huh.
Should also point out that, as alluded to, the prosecutor can give you immunity and then you must testify to what you know… since, as you can guess, once you are immune from prosecution there’s no risk of self-incrimination - what you say cannot result in charges. Of course, with the USA’s twisted jurisdiction problems, you want to be sure you are immune from any prosecution in any place. Can the feds given state immunity?
To get back to the OP’s question, the invocation of the privilege is essentially an assertion that one has a reasonable fear of criminal prosecution. I don’t have a cite available, but invoking it just because one does not wish to answer is presumably contemptuous (and arguably perjury).
And to be clear, “civil” extends to any non-criminal proceeding, including specialized proceedings relating to tax, immigration, congressional hearings, etc. (with the adverse consequences specified by Bricker). Also, an individual can invoke the privilege not just on the witness stand but in response to civil discovery as well (although a corporation cannot).
Defense attorney: “Your Honor, I am requesting a prophylactic instruction to the jury, as per Carter v. Kentucky.”
Judge: "What, again? OK, fine.
Ladies and gentlemen of the jury, when mommy and daddy love each other, sometimes they don’t want you to have a little sister or brother. Now, pretend this banana is daddy…"
Regards,
Shodan
What happens if you plead The Fifth in a drunk driving case? … I would certainly be guilty if I had drank a fifth …