I understand that “taking the fifth” is about not incriminating yourself in a criminal trial and it doesn’t apply in a civil trial. But if, as there is in the case of Zimmerman, there is a threat, pretty explicit, however unwarranted, of further criminal prosecution by the feds, then it is pretty clear that by testifying in the civil trial he could possibly incriminate himself for that federal criminal prosecution.
If so, is he allowed to “take the fifth” and not testify in the civil trial as well? And if he is allowed that, wouldn’t that route be available to any defendant in a civil trial - after all, DoJ doesn’t just give you a certificate that says “we will not criminally prosecute you for this, ever”, however unlikely such prosecution may be.
That’s not correct. A witness may refuse to testify pursuant to the 5th Amendment in a civil trial, but the finder of fact is permitted to draw an adverse inference from the refusal.
Remember in a civil case, there is no “reasonable doubt” requirement. Whoever presents the better case wins (preponderance of evidence). If you think it’s safer to take the fifth than speak, well you are probably deciding you’d rather lose your house than your freedom.
I guess the comeback here is, that whatever you said under oath in a civil trial - can that be used against you in a criminal trial if you refuse to testify? I’m sure it can.
(IIRC the exception is a statement by one of a pair of criminals charged jointly - they can’t use one guy’s words against the other because he cannot compel the other defendant to testify for cross-examination?)
I always appreciated the English law’s approach to a defendant choosing not to testify, especially: “…A defendant’s silence at his trial may count against him. This is because you may draw the conclusion that he is not giving evidence because he has no answer to the prosecution’s case or none that would bear examination…” An American judge saying that would be reversed so fast her head would spin.