President Trump recently took the Fifth Amendment 440 times in a legal proceeding. That is for context only. I mean for this to be a question for FQ.
My question is, is there a downside to taking the fifth or should every person involved in a legal proceeding assert their fifth amendment rights to any and all questions? Can a court second guess the person and force them to answer a question (assuming that person has not been granted immunity)?
If you take the fifth in a civil case in which you are being sued, the other side is entitled to request an “adverse inference” based on your refusal to answer that, had you answered, you’d have answered in an incriminating way (there usually has to be a factual predicate that is established before this is granted)
Therefore, taking the fifth as a defendant in a civil case creates a substantial risk of forfeiting the civil case, but is done to avoid the greater risk of being criminally prosecuted.
In trying to answer this question, I came across a United States Supreme Court decision, Ohio v Reiner
(In this case, a woman pled the 5th, then was given immunity to testify to the grand jury about injuries to a baby she had babysat, and when granted immunity said that she had nothing to do with it and had no idea how it happened. The Ohio court said that this was an improper invocation of the 5th. The Supremes disagreed)
So, the court can review whether the question will in fact incriminate you, and force you to answer non incriminating questions, but they can’t overrule the sincerity of your decision to plead the fifth to incriminating questions.