(L-R)Jonathan Hugg and Monica Matias of Schnader Harrison Segal & Lewis.. Courtesy photos Pleading the Fifth and Civil Litigation: Is It a Good Idea?
Although the concept of pleading the Fifth is more commonly raised in the criminal context, civil lawyers should be knowledgeable about the principles surrounding the Fifth Amendment right against self-incrimination and the significant implications that may arise from asserting the right.
September 15, 2022 at 12:15 PM
6 minute read
Litigation
When lawyers from the New York Attorney General's office recently questioned former President Donald Trump about his businesses, he "took the Fifth" more than 440 times, repeatedly asserting "same answer." The Fifth Amendment to the U.S. Constitution states that no person "shall be compelled in any criminal case to be a witness against himself." Most people know that when you invoke your Fifth Amendment right to silence and refuse to answer questions, no one can use it against you in a criminal case. However, the implications in a civil case, such as those now faced by Trump, are much less well known. Lawyers, especially those involved in fraud litigation, or where the government is conducting a parallel investigation or prosecution, should carefully consider the implications and strategize about all available options before advising a client simply to "plead the Fifth" to avoid answering questions in a civil matter.
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