The Fifth Amendment Is Different in Civil Cases Than in Criminal Cases

If there is one amendment with which fans of criminal justice shows are familiar, it is the Fifth Amendment. The Fifth Amendment grants defendants several kinds of rights, particularly the right to resist incriminating oneself. What many people do not know is that invoking their Fifth Amendment rights can work differently in civil and criminal cases.

This is what the Fifth Amendment actually says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

What rights does the Fifth Amendment grant defendants in criminal trials and proceedings?

For defendants facing criminal charges, the following rights are granted through the Fifth Amendment:

• Right Against Self-incrimination. Defendants have the right to not give testimony and refuse to answer questions if the defendant believes that doing so will incriminate them.
• Right Against Double jeopardy*. Double jeopardy prevents defendants from being prosecuted twice for the same crime following an acquittal or conviction.
• Due Process. This clause enforces the defendant’s rights to a speedy, fair, and orderly trial.

*A quick note about double jeopardy. You can be tried twice for similar crimes by different jurisdictions, or by “separate sovereigns.” This is why, for example, a person accused of drug trafficking may face charges in the states he or she ran the drugs to and from, as well as by the federal government.

How Does the Fifth Amendment Apply in Civil Litigation and Civil Trials?

Defendants may be able to invoke the Fifth Amendment in a civil proceeding and refuse to answer questions during civil discovery, depositions, or trial if they believe that their testimony will incriminate them. One of the common examples is a defendant who has been accused of causing an accident and injuring someone due to drunk driving.  Drunk driving is a violation of criminal law which may be prosecuted by the government in a criminal proceeding. The victim injured by the drunk driver may also make a civil claim against the drunk driver to recover compensation for the injuries and damages caused by the drunk driver’s actions.

What are the differences between asserting the Fifth Amendment privilege in criminal and civil proceedings?

The main difference between a defendant asserting their Fifth Amendment rights in a civil proceeding versus a criminal proceeding is how the judge or jury is allowed to interpret the claim of Fifth Amendment privilege. In a criminal proceeding, the judge or jury cannot make any inferences based on a defendant’s refusal to give testimony pursuant to their Fifth Amendment rights. This is not the case in a civil proceeding, and if a defendant refuses to give testimony in a civil proceeding based on their Fifth Amendment rights, the judge or jury is allowed to infer the defendant’s refusal is an admission of wrongdoing.

Another key difference between a defendant asserting their Fifth Amendment rights in a civil proceeding versus a criminal proceeding is timing. A defendant can only assert their Fifth Amendment rights in a civil proceeding if there is a legitimate threat of self-incriminating testimony leading to consequences in a criminal proceeding. Once the defendant in a civil proceeding no longer has a legitimate threat of their testimony leading to consequences in a criminal proceeding, they would no longer have the right to refuse to testify based on the Fifth Amendment. For example, if a defendant is accused of causing an accident and injuring someone due to drunk driving, they may be facing both an ongoing criminal proceeding in criminal court and an ongoing civil claim for money damages by the injury victim in civil court. As long as the criminal proceeding is ongoing, the defendant can assert their Fifth Amendment right and refuse to provide self-incriminating testimony in the civil case due to the possibility that this testimony can be used as evidence against them in the criminal proceeding. However, once the criminal proceeding is resolved, either by trial or plea bargain, the defendant would be protected from being prosecuted for the same crime again because of the Right Against Double Jeopardy. At that point, any self-incriminating testimony the defendant gives in the civil case could not lead to criminal consequences because the criminal charges of drunk driving have been resolved, so the defendant would no longer have the Fifth Amendment right to refuse to provide testimony in the civil proceeding.

The law is often complicated, especially when it involves multiple overlapping legal issues involving different areas of law. When you have suffered an injury in any type of accident, you deserve to have a lawyer who is passionate about protecting your rights and knowledgeable about the legal issues relating to your injury claim. The Houston personal injury lawyers at The Kishinevsky Law Firm want to help you come to the best possible outcome for your personal injury case. Call our office at 832-LAW-1111, or submit our contact form today for a free consultation.