Most people are aware of what it means to “plead the Fifth” — i.e., refuse to answer questions on the grounds that those answers may incriminate you. The “Fifth” refers to the Fifth Amendment of the U.S. Constitution, which provides that no one “shall be compelled in any criminal case to be a witness against himself.”

However, asserting your right not to incriminate yourself is also used in civil cases as well as criminal cases, including those instances when there are parallel civil and criminal proceedings. For example, if a witness is called to testify during a civil proceeding and there is a criminal case pending, he may elect to plead the Fifth since the potential consequences of a criminal action are more severe than a civil case.

Pleading the Fifth is not available for every disclosure. It is only available when a witness reasonably believes that testimony could be used against him or her in a criminal prosecution. If the information will be of no use to prosecutors in a criminal action, or the statute of limitations has run out, a witness cannot invoke the Fifth Amendment. However, if a prosecutor could use the testimony — or any evidence it may point to — the witness is entitled to protection from self-incrimination.

There are some instances where pleading the Fifth may do more harm than good. In some civil cases, the opposing party may be entitled to an instruction that tells jurors they can draw an adverse inference from a witness' refusal to answer on the basis of the Fifth Amendment. In a majority of civil cases, a witness that invokes the Fifth prior to a trial may be barred from providing testimony or evidence in that trial. In addition, there is a public perception that a person who invokes the Fifth Amendment is guilty.

Any decision to invoke your Fifth Amendment right against self-incrimination should only be undertaken after seeking the advice of an experienced criminal defense attorney. Only an attorney can provide you with the proper counsel for your particular case, depending on the facts of the case and the relevant law in your jurisdiction.

The Cogdell Law Firm is a boutique law firm focusing on large, complex business and criminal financial-related litigation, including white collar criminal defense, securities fraud, health care fraud investigation, criminal appeals and state criminal defense. When results matter most, contact Dan Cogdell at (713) 426-2244 or [email protected]