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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What is a Scintilla?

“Scintilla” is a frequently-used legal term that is derived from a Latin word meaning “a spark.”  It is used to describe how much evidence exists in the record to prove a particular fact. 

When a court finds that there is not a scintilla of evidence to prove something that is in dispute, it is describing a quantity of evidence which is insignificantly small.  In Texas law, a scintilla of evidence is the legal equivalent of no evidence at all, so it is said that if the evidence at trial amounts to no more than a mere scintilla, a party has presented insufficient evidence as a matter of law and cannot prevail on its legal claim.

Dictionaries use different words to describe this concept of a scintilla – a “trace,” a “particle,” an “iota” or a “trifle.”  In case law, it is often described as a “mere surmise” or a “mere suspicion,” which is not enough to support a legal finding.

This author prefers to think of it in more whimsical terms – as a “scent-illa” – just a whiff of evidence in the air.

— Bonnie Sudderth, Judge of the 352ndDistrict Court of Tarrant County,Texas

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What is a “Writ”?

A “writ” is written court order which commands someone to do something or to refrain from doing something. This term originated in English common law where it was first used to describe a written command from the King. As such, a writ carried great weight and authority. American common law incorporated the term “writ” into its legal system as well.

In modern American law, a “writ” is distinguishable from a mere “order” in that writs are generally only used to grant extraordinary relief. For example, a Writ of Habeas Corpus is an order which releases a person from confinement. (Habeas corpus is a Latin term, meaning “you have the body.” Oftentimes, the word “Writ” is followed by a Latin word or phrase which describes the purpose of the writ.)

Some other examples of modern-day writs are: Writ of Sequestration (used to seize or sequester someone’s property), Writ of Injunction (used to prevent someone from taking a particular action), Writ of Mandamus (used by higher courts to mandate that a lower court act or refrain from acting), Writ of Garnishment (permits someone to seize someone else’s money), Writ of Attachment (directs law enforcement to find someone and bring them to court) and Writ of Quo Warranto (requires an official to show authority to act).

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

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When Can I Get a Trial De Novo?

In Texas, trials de novo are available in both civil and criminal cases, but only cases of certain types.  Generally speaking, trial de novo is available to appeal cases which were originally heard in courts which are not courts “of record,” meaning that no official record or transcript of the trial was taken.  Texas justice of the peace courts are not courts of record, as well as most Texas municipal courts.  (In the larger urban communities, it is more common for municipal courts to be courts of record. Check the enabling statute for the court or the city’s charter to be certain.)  So, generally speaking, appeals from these courts, which hear small claims actions and fine-only criminal cases, are de novo.

Usually a trial de novo from these justice and municipal courts would be heard by the county court which has jurisdiction to hear these appeals. In counties with a distinction between county courts at law and county criminal courts, small claims (civil) appeals would be tried de novo in the county court at law, which has civil jurisdiction, while a fine-only misdemeanor criminal case would be tried de novo in the county criminal court.  In such appeals, an entirely new trial will be held as if the case had never been heard or decided in the lower court.

A trial de novo may also be available from certain administrative agency rulings, such as decisions from the Texas Workforce Commission.  It is also sometimes available from rulings from certain magistrates and associate judges (judges who aren’t the presiding judges of the court in which the case was filed).  These types of de novo appeals are generally heard in at the district court level.

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

Caveat: Trials de novo are not automatic and they are not guaranteed. A party desiring to appeal de novo must follow the applicable rules and deadlines to initiate the process, including filing a notice of appeal and, in many cases, the filing an appeal bond.  There is usually a very narrow window of opportunity to pursue an appeal de novo – normally, just a few days. As always, it is advisable to consult an attorney if you want to seek a trial de novo.

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What Is a Trial De Novo?

“Trial de novo” means “new trial,” a second bite at the apple, so to speak.

While it is possible under certain circumstances to get a new trial in the same court as the first trial, the term “trial de novo” really refers to a new trial in a different or higher court.  A trial de novo, therefore, is a type of appeal. 

A trial de novo is a very different type of appeal, though.  In normal appeals, new evidence is not permitted – a decision is either affirmed or overruled based on the record and a determination of whether the judge committed reversible error during the trial. 

With a trial de novo, not only may new evidence be presented, the evidence presented in the second trial may differ dramatically – both in quality and in quantity – from the evidence which was offered or admitted in the original trial.  The advantage of a de novo trial, therefore, is one of hindsight, in that the appealing party will have additional time and opportunity to gather and organize the evidence to be presented at the second trial and, ideally, learn from the mistakes made during the first go-around.

When is a party entitled to a trial de novo?  I’ll answer that one in my next blog.

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

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Why are some cases decided by only 6 jurors instead of 12?

There’s nothing magical about the number 12, except that 12-person juries enjoy a long and rich history in the law. 

Although informal use of juries pre-dates the 12th century, King Henry II (1154-1189) is credited with instituting the first official jury system, when in 1166 he ordered that “12 lawful men” in each village would make decisions about who had committed crimes in their community.* Since that time, legal systems with roots in English common law (United States, Austrialia, Canada, etc., including 49 of the 50 states in the U.S.) use a jury system to some degree, although the precise number comprising the jury used will vary from jurisdiction to jurisdiction.

In 1970, the U.S. Supreme Court approved the use of a 6-person jury in a Florida criminal case, ruling that neither the language nor the history of the U.S Constitution mandates a 12-person jury. Instead, the Supreme Court, referring to the 12-person jury as a “historical accident,” held that the purpose of a jury is to provide a cross-section of the community, and juries of less than 12 persons in serious felony cases do not violate that purpose or the constitution. Nevertheless, only two states in the U.S. (Florida and Connecticut) allow for 6-person juries for serious felony accusations.

In Texas, both statutory and state constitutional law provides that juries will be composed of either 12 or 6 persons, depending upon the type of court which is empanelling the jury.  Basically, district-level trial court cases are decided by 12-person juries, while cases from county-level trial courts, justice courts and municipal court are decided by juries of 6. (In district courts, however, the parties may agree to reduce the number of jurors to hear a particular case.) What this means for criminal cases is that a felony case will be decided by a 12-person jury, while a misdemeanor case will be determined by a jury of 6. 

(*King Henry II’s jury system was a positive departure from the common practice of deciding guilt or innocence during that era.  Prior to this time, criminal cases were often adjudicated through “trial by ordeal.” In a “trial by ordeal,” those accused of crimes were required to undertake some type of ordeal, such as picking up a red-hot bar of iron or sticking their hands into a boiling cauldron. If their injuries from the ordeal quickly healed, that would be considered a sign from God that they were innocent. If not, a criminal penalty would be assessed – a textbook example of adding insult to injury!)

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

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Explain the Terms “Bench” and “Bar”

Courtrooms come in all shapes, sizes and colors.  From classical to modern, from opulent to austere, each courtroom is as unique as the architecture of the community it serves.  But whether the courtroom is located in Alaska or Florida, all courtrooms in America will share two common features – the bench and the bar.

The bench is the place where the judge sits.  In modern courts, it looks less like a traditional bench for sitting and more like an elevated desk where the judge can sit, work and view all proceedings in the courtroom.  The bench is ordinarily designed to provide a physical barrier between the judge and all other courtroom participants, including attorneys.

Somewhere else in every courtroom another barrier exists – it is called the bar.  The bar is a physical wall that separates the area just in front of the bench and the area where the courtroom spectators sit.  Ordinarily the bar is constructed low (waist-high or lower) to the ground, either of solid wood or railing.  A gate or some other type of entryway allows attorneys to pass beyond the bar and into the area in front of the bench. Spectators are generally not permitted beyond the bar (although clients and litigants may be allowed under certain circumstances).

Because the judge sits at the bench, the term “bench” is also used to describe judges in general.  A community’s “bench” refers to the collection of judges who work in that community.  A “bench trial” means that the judge decides the outcome of a case (as opposed to a jury), and a “bench” brief is a brief that is prepared for the judge to read.

Because attorneys take their places in the courtroom beyond the “bar,” the term “bar” is also used to describe attorneys in general.  A community’s “bar” refers to a collection of attorneys who work in that community.  A “bar” association is an organization of attorneys, and a “bar” exam is the exam that law students take to become licensed lawyers.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas (Member of both the Bench and the Bar)

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