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Using the Fifth Amendment in Civil Cases


Most people, at least most people in the law, know what the Fifth Amendment says. It is the amendment to the constitution, included in the original Bill of Rights, which protects us against testifying against ourselves, otherwise known as the prohibition against self-incrimination.

Criminal vs. Civil Case Use of the Fifth Amendment

But there is a misconception that the Fifth Amendment is only used in criminal cases. As a civil lawyer, or a client or business with a civil case, you may not think that the Fifth Amendment has anything to do with you, or you may believe there is no application of the Fifth amendment, to civil or business law cases.

There is an absolute right to assert the fifth amendment in civil or business law cases. The Fifth Amendment is properly used where information requested by the other side, could lead to , or may tend to lead to, incrimination. However, there are certain rules and consequences of invoking the Fifth, that those who assert the privilege, must be made aware of.

Plaintiff or Defendant

If you are the Plaintiff—the party bringing the lawsuit—and you opt to invoke the fifth amendment, the lawsuit can be dismissed. The logic is that you, as the Plaintiff, chose to bring the lawsuit. You can invoke your Fifth Amendment right, but the court will not let you bring a claim, and then use the Fifth Amendment to conceal facts or information asked by the other side in the act of defending itself.

Separate Hearings

In civil cases, a Defendant can assert the fifth amendment in some instances. Where the need to assert the Fifth Amendment may not be clear, the court may have to have a separate hearing, to determine whether the use of the Fifth Amendment is necessary or proper in response to a question or request for information.

It is not enough that someone “thinks” an answer to a given question will incriminate him or her. Objectively, the Court must determine that the question or request would result in self-incrimination if answered, regardless of how the person being asked may feel.

This may require the court listening to the Defendant’s answer, or reviewing requested information in private to determine whether the information could incriminate the Defendant. The Defendant himself may have to appear at the hearing, to tell the judge in private why he or she thinks that the information may be incriminating.

This is different than in criminal court, where a Court has much less leeway to determine if invoking the Fifth Amendment is appropriate or not.

Simply invoking the fifth amendment to question after question can lead to problems for parties, if the right is not being asserted in good faith. Whereas, in criminal court, the court usually will not evaluate every single question to see if invoking the privilege is appropriate.

Call Pike & Lustig, LLP, at 561-291-8298. Our West Palm Beach business litigation lawyers try cases in court for businesses, employees, independent contractors, and anyone else who has a business related case.


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