Can a Witness Refuse to Answer a Question on Fifth Amendment Grounds in a Civil Case?

Absolutely.  The Fifth Amendment of the U.S. Constitution protects a witness’s right not to self-incriminate, not just in criminal proceedings, but in civil proceedings as well.  This is important because if a witness fails to invoke the Fifth Amendment in a civil proceeding and then provides an incriminating answer, that answer can later be used against the witness in a criminal prosecution.

So, even in a civil action, if a question calls for a self-incriminating response, then the witness may invoke the Fifth Amendment privilege against answering that question.  There are some critical differences, however, in how this privilege is applied in civil cases.

For example, in many states the judge in a civil case may compel witnesses to testify, even after they have asserted their Fifth Amendment rights, if the judge finds that the refusal to answer isn’t made in good faith or isn’t justified.  In that case the judge would examine the reason why the witness is refusing to testify and make sure that the Fifth Amendment privilege is being asserted properly in that particular circumstance.

Also, unlike in criminal cases where a Fifth Amendment refusal to testify can’t be used as any evidence of guilt, in civil cases when a witness refuses to testify on Fifth Amendment grounds, the judge or jury can infer that the witness is guilty of the offense (otherwise they wouldn’t have invoked the Fifth Amendment).  So, the act of “pleading the Fifth” can be used against a person to prove guilt in a civil case - it just can’t be used against a person to prove guilt in a criminal case.

In other words, at the end of the day, witnesses in civil cases – just like witnesses in criminal cases – enjoy the Fifth Amendment right not to testify against themselves.  However, while invoking the Fifth Amendment can’t be used as evidence to support a guilty verdict against a defendant in a criminal case, it can be used as evidence to support a monetary judgment against a defendant in a civil case.

For a more in-depth look at the use of the Fifth Amendment privilege in the context of Texas civil trials visit Judge Bonnie Sudderth’s blog on the Texas Rules of Evidence.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

Caveat: As always, it is advisable to consult an attorney if you find yourself in the position of needing to invoke the Fifth Amendment in response to questioning. 

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