The Fifth Amendment has Limited Application to Personal Injury Litigation

The fifth amendment to the US Constitution protects a person from the government forcing them to testify against themselves. That is to say, it is a right to be free from self-incrimination.

The application of the Fifth Amendment to personal injury litigation is limited for several reasons:

• • It cannot be used in general to refuse to answer interrogatories or attend a deposition. North American Mortgage Investors v. Pomponio, 219 Va. 914, 918 (1979)
  • Any objection must be specific to the question that is asked.
  • The party claiming the privilege must show that a prosecutor might use the answer to link the party to some crime and that this possible linkage is not incredible.
  • The privilege does not extend to remote concerns or speculative possibilities. Brubach v. Hystad, 68 Va. Cir. 181 (2005)
  • A party cannot claim the privilege regarding evidence that is not in his possession. Crouch v. U.S., 409 U.S. 322, 328 (1973)
  • Neither a party nor his business can assert a privilege in documents held by the business. That is, the right is a purely personal right. Bellis v. U.S., 417 U.S. 85, 90 (1974)
  • The privilege can only be used as a shield. It cannot be used offensively as a sword. Va. Code § 8.01-223.1 says that in a civil proceeding, the exercise of any constitutional protection shall not be used against a party.

Other Considerations in Application of the Fifth Amendment

So, where there is a potential or actual criminal proceeding against a defendant, there are other factors to consider:

• If the statute of limitations is not an issue, you may want to wait for filing suit. That way you can utilize any investigative material gathered by the police once that criminal case is over.
• If you wait to file suit until after the criminal case is over and the defendant has been sentenced, then your punitive claim may be diminished. That is to say, a judge or jury may not be inclined to further punish the defendant if the criminal sentence was significant.

Pleading the Fifth May be a Gift

If you contemplate that the other party in a civil case is going to plead the fifth, that may be a gift. You may be able to use it effectively at trial. If it’s your expectation that they’re going to raise the fifth during that party’s deposition, then plan on taking the deposition audio-visual. Prepare each question on a separate page in large print for use as an exhibit. Use the exhibit alongside the person answering the question so that if you play the video at trial. The jury can see both the question and the answer.

Start with general questions if you expect that the objection is going to be raised as to general questions. Then get to the more specific.

Of course the scenario may change by the time you get to trial but assuming that you can still use this deposition at trial, it may be a very effective tool.

Call or contact us for a free consult. Also for more info on the fifth amendment see the Wikipedia pages. Also see the post on this site dealing with source of duty issues.