Does asserting the Fifth Amendment mean you’re guilty? Ask the lawyer – Daily News


Q: President Trump recently had a deposition in a civil case in New York about financial matters and asserted the Fifth Amendment. If you “take the Fifth” in a civil case in California, does that mean you’re guilty?

T.M., Rancho Palos Verdes

Ron Sokol

A: The Fifth Amendment of the United States Constitution guarantees that an individual cannot be compelled by the government to provide incriminating information. The Fifth Amendment right “to remain silent” can be pleaded in a criminal or a civil case.

In a civil case in California, neither the court nor counsel may comment on the fact that a witness has asserted the Fifth Amendment privilege. Further, the trier of fact may not draw any inference as to the credibility of the witness, or as to any matter at issue in the proceeding. This is at odds, however, with the federal court standard, as well as with a number of other states permitting adverse inferences to be drawn against parties in civil cases who refuse to testify.

Taking the Fifth in California in a civil case may also limit or preclude the party from seeking to introduce certain testimony or evidence since they refused to provide testimony (and can a trier of fact really “look the other way”?). Thus, it is not a routine decision to choose to assert the Fifth Amendment in a civil case in California, even though no adverse inference is supposed to be drawn.

Q: My wife was badly injured by a drunken driver who is being criminally prosecuted. We are now suing him for damages in civil court. A concern is that he will argue we are just seeking money, which could impinge on the outcome of the criminal charges. Your thoughts?

D.E., Huntington Beach

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