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There seems to be the idea that the right not to self-incriminate does not apply to civil cases. Is that true?

2 Answers 2

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Yes, One Can

In the United States, one may assert the Fifth Amendment privilege not to testify or otherwise give information that might tend to implicate the speaker in a crime. This is true in any court proceeding, civil or criminal, whether the person asserting the privilege is an accused, a witness, or a party to a civil case. It may be asserted in a Grand Jury or trial proceeding. One may also assert the privilege under police interrogation, or in an administrative proceeding. One may also assert it when testifying before Congress, a state legislature, or any local legislative body. One may also assert it when testifying before a government agency, such as the Interstate Commerce Commission. Asserting the privilege is often informally called "pleading the Fifth", although strictly speaking "pleading" is something that only an accused does (as in "I plead not guilty"). The availability of the privilege in civil cases has been true at least since the Saline Bank case of 1828 (see below).

The privilege is not available when no criminal prosecution is legally possible, such as when the statute of limitations has expired, or when the law invoked has been held unconstitutional or otherwise invalid, and no other valid law applies. Thus, if an authorized government official (usually a prosecutor) offers a grant of immunity, the privilege is no longer available on matters covered by the grant, and the person asserting it must then testify on such matters.

The privilege may be asserted when the person doing so is actually guilty, or when the person is not guilty, but has a reasonable belief that the statements asked for might be used against the speaker in some current or future criminal proceeding. A person who has been tried for a crime nut had the case end in a mistrial, or a dismissal without prejudice, could still be re-tried for that accusation, and so may assert the privilege.

Any assertion must be clear, but need not use a specific form of worfs. The standard form advised by many lawyers is

I decline to answer on the grounds that the answer might tend to incriminate me.

but less formal wording such as 'I take the Fifth" will also serve to assert the privilege.

When the privilege is asserted in a court case, the Judge may question the person asserting it in private, off the record, to determine whether the fear of incrimination is reasonable.

Case Law

Saline Bank (1828)

In the case of United States v. Saline Bank of Virginia, 26 U.S. 100 (1828) Chief Justice Marshall wrote:

It is apparent that, in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. [This case was cited in Murphy, below]

Saline Bank was a civil suit by the US treasury in Federal curt against an apparently unincorporated bank, but a Virginia state law of the time made it a crime to operate or participate in a bank without a proper charter. Thus the Marshall Court held that a witness in a civil suit could assert the privilege against the future possibility of a state criminal proceeding.

Kastigar (1972)

In Kastigar v. United States, 406 U.S. 441 (1972) the US Supreme Court wrote (footnotes omitted):

It [the privilege against self-incrimination] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege [Citing the Miranda case in a footnote].

(Kastigar was a case in which people subpoenaed before a Grand Jury asserted the privilege, were granted immunity, and still refused to testify, alleging that the grant of immunity was not enough to revoke the privialge. They were held in contempt, appealed, and the Court held that the immunity was sufficient to allow the witnesses to be compelled to testify. In the court of its opinion, the Kastigar Court reviewed the history of the privilege and of immunity statutes in some detail.)

Murphy (1964)

In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) the US Supreme Court wrote:

We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1. ...

Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminated them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. [Footnote 2] Notwithstanding this grant of immunity, they still refused to respond to the questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend.

[This case was cited in Kastigar above.]

McCarthy v. Arndstein (1924)

In McCarthy v. Arndstein, 266 U.S. 34 (1924) (footnotes omitted, boldface added) The US Supreme Court wrote:

The case is now before us on rehearing, granted in order to permit argument of the proposition, not presented by counsel before, that the privilege against self-incrimination does not extend to an examination of the bankrupt made for the purpose of obtaining possession of property belonging to his estate.

...

The contention now is that the privilege against self-incrimination ought to have been disallowed because, under the Constitution, it does not extend to the examination of a bankrupt in a bankruptcy proceeding.

The government insists broadly that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects likewise the owner of goods which may be forfeited in a penal proceeding. See Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 563-564.

The government urges more strongly a narrower contention. It claims that the constitutional privilege does not relieve a bankrupt from the duty to give information which is sought for the purpose of discovering his estate. It asserts that, in England, such an exception to the common law privilege prevails, and that the exception had been established there prior to the Declaration of Independence. Whatever may be the rule in England, it is clear that, in America, the constitutional prohibition of compulsory self-incrimination has not been so limited.

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    "When the privilege is asserted in a court case, the Judge may question the person asserting it in private, off the record, to determine whether the fear of incrimination is reasonable" - Is there case law that the judge cannot disclose what is said during this off-records talk? Is it similar to lawyer-client privilege? Can't they subpoena the witness (thus granting immunity from prosecution) then force them to testify (as 5th amdmt concerns are no longer valid)? May 30, 2022 at 21:24
  • @MindwinRememberMonica a subpoena does not confer immunity from prosecution. It only requires the witness to appear in court. The grant of immunity, if any, would be separate.
    – phoog
    Apr 3, 2023 at 16:08
  • @phoog context. The subject has already plead the 5th, and was called backstage by the judge. Perhaps the term "subpoena" is wrong but the thing is that granting the witness immunity to what they claim would be incriminating eliminates the amendment claim and forces them to give testimony. It's done with mob grunts all the time, as far as Hollywood is concerned. Apr 4, 2023 at 13:26
  • None of the quoted material from the cited cases supports the proposition "when the privilege is asserted in a court case, the judge may question the person asserting it in private, off the record, to determine whether the fear of incrimination is reasonable." There's no indication that such an interrogation occurred in any of the cases.
    – phoog
    Apr 5, 2023 at 4:59
  • @MindwinRememberMonica the subpoena is simply the instrument that requires the witness to appear in court, so yes, it's the wrong term, but that isn't particularly important. However, if a witness has been granted immunity then there's no need to consider the question of why the witness thinks the answers could be incriminating. Still, the cases I've seen indicate that this happens without the judge questioning the witness, neither off the record nor otherwise.
    – phoog
    Apr 5, 2023 at 5:04
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You cannot plead the 5th in a civil case

The relevant part of the fifth amendment is:

… nor shall be compelled in any criminal case to be a witness against himself, …

So, it’s right there in the text that it only applies to criminal cases.

In a civil case you are required through the process of disclosure to reveal all relevant evidence to the other party irrespective of whether it helps or harms your case.

Nor can you refuse to testify.

Except …

If the evidence or the testimony would reveal your participation in crimes that you could be prosecuted for in the future. So you can’t claim it for crimes for which you have already been tried (convicted or acquitted), or pardoned, or for which a prosecution could not happen for other reasons (e.g. a statute of limitations).

However, you can only “take the fifth” about those specific matters and the court can assume that the reason you are refusing to testify is that you committed the crime and take that as a proven fact in deciding the civil matter.

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    The court can assume that any question you refuse to answer, or any information you refuse to hand over, would be hurting your case. And then change their ruling accordingly. It doesn't mean it's proven, because it isn't, but the judge can rule as if it was proven. Obviously the court has no idea what is the actual reason for you not talking, so it doesn't prove you committed any crime at all.
    – gnasher729
    Nov 29, 2021 at 13:41
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    The bold header "You cannot plead the 5th in a civil case" seems misleading, since as you yourself go on to say, you can plead it - though with certain limitations. The quote from the Fifth Amendment doesn't resolve the issue; the text itself may only mention criminal cases, but courts have held that the privilege extends to civil testimony. McCarthy v. Arndstein, 266 U.S. 34 (1924). Nov 29, 2021 at 14:24
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    From the decision in McCarthy: "The government insists broadly that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it." Nov 29, 2021 at 14:25
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    Hi, you say that I can refuse to testify if "the testimony would reveal my participation in crimes that I could be prosecuted for in the future." I'm no lawyer, but if I refuse to testify on these grounds, then how could anyone show that I SHOULD have testified. If I was held in contempt, couldn't I just say "There's a crime I committed that no one is aware of. If I testify, you might learn about the exact nature of this crime"? Thanks!
    – James
    Nov 29, 2021 at 18:04
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    @James: I believe the judge can question you in private about what crime you committed and why you believe that answering the question would incriminate you, with the understanding that your answers in private cannot be used against you. If you don't convince the judge that answering actually would incriminate you, the judge can order you to answer the question you were asked in court, and hold you in contempt (possibly jail) if you still refuse. Nov 30, 2021 at 14:56

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