Pleading the Fifth in a Civil or Commercial Litigation Case

You may remember the fifth amendment whether from school or from media and TV; the idea of someone “pleading the fifth” is etched in our American consciousness.

The fifth amendment of course, protects us from self incrimination. We cannot be compelled to do or say anything that could be used against us, or which could tend to lead to us getting ourselves in criminal trouble.

Not only that, but the fact that we invoke the fifth amendment, compels the government and specifically law enforcement to cease questioning us, and the fact that we invoke the fifth, cannot be used against us in trial.

Why Use the Fifth in Civil Cases?

You may wonder why, in a civil business context, you would need to even worry about using the fifth amendment. But many things that are civil in nature, or much information that may be revealed in the process of a civil business case, could potentially lead to criminal charges.

Allegations of business fraud, or information in an employment case that could lead to it being revealed that a business may have criminally ignored important federal laws, or information of what seems like civil theft, which could give rise to criminal theft charges, are all examples of how a simple civil case can lead the state or government to become more interested in bringing criminal charges against someone.

Using the Fifth in Civil Cases

So if you are asked in any kind of civil case, a question that you fear could lead to criminal charges, can you assert the fifth amendment and refuse to prove the information requested? After all, the fifth amendment is there to avoid criminal charges, and in your civil case, there are no criminal charges pending, and the state or government isn’t even a party to the case.

The answer is yes, you can assert the fifth amendment. It doesn’t matter that the case is not a criminal case involving any criminal charges. And it doesn’t even matter that the party asking you the question may not be the police or the government, it’s just the other side in your commercial litigation case.

Convincing the Judge

In a criminal case, a court will usually allow a criminal defendant to refuse to answer a question, no matter what. But in a civil case, the judge may want an explanation as to why a question cannot be answered; that is, you may have to explain, in private (in camera) to a judge, why the answer to a question could possibly self incriminate you.

If the Plaintiff Uses the Fifth

There is one restriction on the use of the fifth amendment in a civil case: If you are the Plaintiff bringing the case,  and you assert the fifth, your case could be dismissed. In other words, because you are the one who brought the case to court, you cannot then conceal information that the other side may be entitled to in the defense of the case you bring against it.

Call our West Palm Beach commercial litigation attorneys at Pike & Lustig for help with your business law matter.

Source:

floridabar.org/the-florida-bar-journal/a-civil-litigators-guide-to-the-privilege-against-self-incrimination-in-floridas-state-and-federal-courts/#:~:text=The%20Fifth%20Amendment%20to%20the,witness%20against%20himself%20or%20herself.