Can the Fifth Amendment protection against self-incrimination be invoked in a civil deposition?
Assuming it can be, what potential consequences may the invocation have, if any?
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If the question asks, "did you do X" where X is or includes a crime that you could be criminally prosecuted for, you can invoke the 5th amendment in refusing to answer that. I have seen that done and seen that objection to the question sustained in court. However, if admitting to X would provide only civil liability, then the 5th would not apply.
At trial, you may also have to take care not to give direct testimony on things that are so closely related that you "open the door" to being required to answer that question. For example, you can't say "I don't owe because I did X" and then expect to not have to answer "So just to be clear, did you do X?"
Also, depending on context, invoking the 5th might cause a jury to view your testimony more skeptically (cpast points out that "For civil cases, adverse inferences based on pleading the fifth are totally okay"), and if that's going to come up you should ask your attorney about whether or not it'd be a good idea strategically.
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For civil cases, adverse inferences based on pleading the fifth are totally okay, so the jury isn't even not supposed to consider your silence. – cpast Apr 4 '16 at 5:15
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"...where X is or includes a crime that you could be criminally prosecuted for..." - now this is getting interesting, especially with crimes that do not require "criminal intent" and have historically been "borderline civil" (some economical crimes, maybe waste dumping, etc.), where it could be not immediately apparent whether you can or cannot be criminally prosecuted for the same thing. – Eugene Ryabtsev Apr 4 '16 at 5:20
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Couldn't answering any relevant question in a civil case potentially open you up to perjury charges, which are criminal? And that's so even if your answer is truthful, if the prosecution could potentially prove beyond a reasonable doubt that it's not truthful, which is certainly not impossible. – David Schwartz Apr 4 '16 at 8:37
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3@DavidSchwartz - I think you are confusing the right not to self-incriminate for past crimes with a right not to commit future crimes. – Jirka Hanika Apr 4 '16 at 11:28
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@JirkaHanika Maybe I'm just looking at cases that haven't considered this specific question, but every one I can find just says you have to have a reasonable belief that the testimony could be used in a future criminal prosecution, that is, it just has to be potentially incriminating. Do you have a cite to a court holding that it is limited in the way you suggest? – David Schwartz Apr 4 '16 at 17:11
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No, the relevant provision is:
nor shall be compelled in any criminal case to be a witness against himself
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3Although this is the text of the Fifth Amendment, courts have interpreted its protections to apply more broadly, and have not strictly limited it to criminal cases and literal appearances as a witness. So I don't think the text itself is sufficient basis for a "No" answer. – Nate Eldredge Apr 4 '16 at 15:04
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Yes, it can but only for potential criminal liability that may relate to the case. You can't use it for civil liability.
You could be precluded from invoking defenses related to the testimony you withhold.
