Can a Witness in a Civil Action Assert the Fifth Amendment

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who was hit by a drunk driver. She said at the DUI criminal trial, the defendant asserted his Fifth Amendment right not to testify. She wanted to know could the drunk do the same in the civil suit she wanted to hire us to file against the drunk driver?

A witness in a civil action may assert a privilege against self-incrimination.

The Fifth Amendment privilege against compulsory self-incrimination can be asserted in a civil or criminal, administrative, or judicial proceeding. It protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be used against the witness.

But if a witness or party refuses to speak based on the Fifth Amendment in a civil case, won’t that look like something they have something to hide?

The answer is, of course, yes. So courts usually allow a jury, in a civil case, to draw an adverse inference from the witness’s refusal to testify.

Keep in mind such an inference would not be permitted in a criminal case.

This means that if a prosecutor refuses to prosecute a crime, for example, a gun discharging and resulting in injury, claiming that the evidence is too circumstantial to justify a prosecution. The victim might still sue in civil court alleging negligent discharge of the gun. Then at trial, the victim’s attorney could call the defendant, let him assert his 5th amendment privilege in front of the jury, and refuse to answer questions. The jury would then hear the refusal to testify.

Of course, if the criminal charge is concluded through a plea bargain or dropped, a civil court might well require the defendant to testify in the civil case. It would, of course, depend upon potential exposure to other criminal charges.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”