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Caught Red Handed: Pleading the 5th Amendment

The Fifth Amendment of the U.S. Constitution may be invoked by a witness in a criminal or civil court who chooses not to answer a question because it may tend to incriminate him or her. If the person pleads the Fifth Amendment in response to a question, that person is shielded from the state using the recorded testimony to press criminal charges against the witness (or convict the witness in any pending criminal case). On the other hand, a civil court has the right to assume the witness did what the other party has alleged. The legal term for is called an adverse inference, meaning the court may infer the witness did what was alleged, which is adverse to his or her case.

This arises when someone has been charged with a crime and the court date for the criminal case is after the date of the custody case in civil court.  A parent might be facing a custody trial and a criminal trial for something like assault, drunk driving or possession of a controlled substance. When the witness in a custody case is asked what happened on the night he or she was arrested for drug charges or a DWI while the children were there, the witness must decide whether to plead the fifth. If so, the civil court judge has the authority to infer the witness did what was alleged but the witness is protected from incriminating himself or herself in the pending criminal trial.

A party who testifies in a civil case can’t have his or her cake and eat it too.  The fifth can only be used as a shield but not as a sword, meaning the witness may have to choose which case is jeopardized if both criminal and civil cases are pending. Otherwise, the witness could use the fifth as a sword used offensively to file a custody case, for example, then avoid answering the questions in both cases with no consequences. In other words, you are protected from admitting things related to criminal charges but not protected from consequences of your actions in a child custody case.


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