Saturday, August 21, 2010

What happen at a civil case if I used the fifth amendment?

I'm involved in avery bitter civil case with my ex- husband, I was told I could use the fifth amendment at the superior courtWhat happen at a civil case if I used the fifth amendment?
The Fifth Amendment privilege against self-incrimination may be invoked in criminal or civil matters when an individual's testimony creates a possibility of criminal prosecution. Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The privilege is applicable in response to specific inquiries that call for the admission of a crime or objectively create ';some tendency'; to subject the individual to criminal liability. In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 663-64 (7th Cir. 2002). The privilege may be waived when a party voluntary testifies to incriminating facts. Rogers v. United States, 340 U.S. 367, 373, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951); Harris v. City of Chicago, 266 F.3d 750, 754 (7th Cir. 2001). See also Mitchell v. Zenon Construction Company, 149 F.R.D. 513, 514 (D. V.I. 1992). [*8]





The privilege is acknowledged widely as a personal, individual right. Braswell v. United States, 487 U.S. 99, 117, 108 S.Ct. 2284, 2295, 101 L.Ed.2d 98 (1988). Corporate entities have no privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Nowaczyk v. Matingas, 146 F.R.D. 169, 177 n.4 (N.D. Ill. 1993) (citing U.S. v. Kordel, 397 U.S. 1, 7-8, 90 S.Ct. 763, 767, 25 L.Ed.2d 1 (1970)). Additionally, corporations cannot assert the individual privilege against self-incrimination held by their employees. Nowaczyk, 146 F.R.D. at 177 n.4. See also Braswell, 487 U.S. at 117, 108 S.Ct. at 2295 (';[A] corporate custodian is not entitled to resist a subpoena on the ground that his act of production will be personally incriminating.';).





If there is no criminal charge that might result from the testimony and a party invokes the Fifth Amendment, then the above answer becomes correct - it is not unconstituttional for the judge to instruct that a negative inference be drawn from a refusal to testify..What happen at a civil case if I used the fifth amendment?
The 2nd and 3rd answers are both good, with a lot of case citations that may help your attorney. There is a 3rd option which may or may not be helpful. Ask your lawyer if you can get immunity in exchange for testifying. That usually happens in criminal cases, but can be used in civil cases. I can't tell from your question if it would apply to your situation, but it's worth asking.
You can invoke your fifth amendment right against self-incrimination in a civil proceeding. Under certain circumstances, however, the judge/trier of fact is permitted to draw an adverse inference from your invocation of the fifth. For example, if you take the fifth in response to the question, ';Have you ever taken illegal drugs in the presence of your children?'; it may be permissible for the judge to infer that you have, in fact, done so.
hard to say without more information

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