In CNN's ‘Very bad strategy’: Legal expert reacts to Trump’s latest attack on judge after 03:11 there's the following exchange with former federal prosecutor Renato Mariotti:

CNN: And of course, when you take the Fifthin a civil trial, how is that different than a criminal trial?

MARIOTTI: Well, it's a really good question, John. In a criminal trial, the jury is told that you cannot have that used against you. They should not consider it at all.

In a civil trial, the jury, or in this case the judge, can use that against you. In fact, essentially, they are to assume or presume that the testimony would have been negative.

I generally hear that assumption or presumption of negativity is optional, at the judge or jury's discretion. Here Mariotti seems to go further and with "they are to assume or presume" suggests that there may be some guidance, instruction, or perhaps even rulings instructing to do so.

So I'd like to ask:

Question: Is a judge or jury "to assume or presume" testimony not given after invoking the fifth amendment would have been negative in a civil trial?

Related and potentially helpful, but without a clear answer to my question specifically:

  • 1
    I removed tags related to the civil law legal system of continental Europe and countries whose legal systems are derived from it that are a false friend, and added tags for "evidence", "liability" and "New York" (as the case referenced in a NY state case).
    – ohwilleke
    Commented Nov 2, 2023 at 12:58
  • @ohwilleke much appreciated; wouldn't want those!
    – uhoh
    Commented Nov 2, 2023 at 15:46

1 Answer 1


Is a judge or jury "to assume or presume" testimony not given after invoking the fifth amendment would have been negative in a civil trial?

The Fifth Amendment to the U.S. Constitution states in the pertinent part:

No person ... shall be compelled in any criminal case to be a witness against himself.

The 5th Amendment can be claimed in any context (where there is an actual risk of self-incrimination) as a matter of U.S. Constitutional law. But the evidentiary weight given to a decision to invoke the 5th Amendment in a civil case pending in state court is not controlled by the U.S. Constitution. As a result, this is instead a question of state law, although almost every U.S. state adopts the same rule or a very similar one to the one that New York State (the state where the case referenced in the link in the question is pending).

In New York State, an adverse inference is permitted when the 5th Amendment is invoked in a civil trial. See, e.g., Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31, at 42-43 (1980).

A court may draw an adverse inference against a party who asserts his Fifth Amendment privilege in a civil matter, because the invocation of the privilege results in a disadvantage to opposing parties by keeping them from obtaining information they could otherwise get[.]

SEC v. Susman, 2010 WL 532060, at *5 (S.D.N.Y. Feb. 11, 2010) (internal citation omitted); see also Commodity Futures Trading Comm’n v. Int’s Fin. Servs., 323 F.Supp.2d 482, 505 (S.D.N.Y.2004)(“because Robinson [defendant] asserted his Fifth Amendment privilege … at his deposition, in evaluating the Commission’s [plaintiff] evidence, the court may draw adverse inferences from his silence.”). An adverse inference may “be given significant weight because silence when one would be expected to speak is a powerful persuader.” LiButti v. United States, 178 F.3d 114, 120 (2nd Cir. 1999).

But the decision to draw an adverse inference is in the discretion of the trial judge.

A judge might not make an adverse inference, for example, if the matter upon which the 5th Amendment was invoked is only weakly related to the merits of the case before the judge (e.g. a question about an extra-marital affair in a state where adultery is a crime asked for purposes of showing the lack of credibility of a witness only), or where other evidence strongly suggests that the adverse inference sought from invoking the 5th Amendment with respect to a particular question is not factually accurate (e.g. when another witness has testified without invoking the 5th Amendment to the same factual matter).

The vast majority of the time, however, the trial judge does direct the trier of fact (i.e. the judge in a bench trial or on a motion for summary judgment, and the jury in a jury trial) to make an adverse inference.

  • Requiring a person to give testimony that could be used against them in a criminal case would violate the clear intention of the Fifth Amendment and gut its protections, regardless of the context in which such testimony was demanded. Even if the testimony was given during a civil trial, if it could be used in a future criminal case the person would be effectively testifying against himself in that future case.
    – supercat
    Commented Nov 2, 2023 at 15:10
  • @supercat This is why you are allowed to claim the 5th Amendment in a civil case at all. But, in a civil case, you have to make a choice - maximize your favorable outcome in the civil case by testifying, or take the adverse inference in order to maximize your 5th Amendment protection in some future criminal case.
    – ohwilleke
    Commented Nov 2, 2023 at 15:13
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    @supercat The courts have held that requiring people to testify in a civil proceeding on pain of an adverse inference if the 5th Amendment is invoked does not violate the U.S. Constitution. Your plausible supposition is simply not what the law actually says.
    – ohwilleke
    Commented Nov 2, 2023 at 15:37
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    @supercat If they plead the 5th, the only allowable penalty is an adverse inference. They can't be compelled to testify on threat of contempt as a matter of U.S. Constitutional law.
    – ohwilleke
    Commented Nov 2, 2023 at 15:53
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    @supercat "I would think that the prohibition against forcing testimony that could be used in a criminal proceeding would be applicable to all branches of government": it is. A state isn't a different branch of government; it is a separate government.
    – phoog
    Commented Nov 2, 2023 at 22:07

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