Thursday, June 12, 2014

Self Incrimination in a Civil Case

At times we are involved with cases that are intertwined with both the criminal and civil worlds, such as when a car accident causes an injury or death and the driver is charged with a crime (e.g. reckless homicide). During the civil portion of the case, the driver will typically be deposed and questions will be asked that could impact that individual's criminal case, and potentially his or her freedom. While we are all aware of the 5th Amendment's right to refrain from self-incrimination, how does this apply to a civil case? If a person were to invoke his or her 5th Amendment rights in a civil matter (e.g. by refusing to respond to discovery or be deposed), a civil jury can later draw an adverse inference from the witness' refusal to testify. On the flip side, if the person were to respond and waive the 5th Amendment in the civil matter, this information could be used against the person in the criminal case. This obviously puts the individual in a very difficult position. So what is the solution? Although not constitutionally required, a civil trial court may stay a portion of the civil litigation, such as discovery, during the pendency of the criminal matter. However, any such stay must be balanced against a civil plaintiff's right to the administration of justice without delay.