You Absolutely Can Plead the Fifth
Video Transcribed: Do you have the right to remain silent in civil court? My name is Brian L. Jackson. I am an attorney in Tulsa, Oklahoma. And we’re going to talk about your right to remain silent, which is your fifth amendment privilege, in the context of civil court.
I tend to see this come up a lot in the context of protective orders in Oklahoma and custody litigation because I get these cases from time to time where I have a client who’s facing the trifecta of crap, and they’re looking at a protective order, some kind of a criminal charge for domestic violence, and they’re getting sued for custody.
And the problem they can run into is you’re looking at a situation wherein order to defend yourself in civil court, you’re going to have to discuss facts that are connected with your case in criminal court.
So the question that comes up is, well, can you plead the fifth in civil court? And the answer to that question is yes but, and the yes part is yes, you absolutely can plead the fifth and the court cannot compel you to answer a question that might tend to incriminate you. However,… and here comes the but… and that but’s a real ass.
The catch with that is if you plead the fifth in civil court, you do not have the benefits that you get in criminal court from pleading the fifth. In criminal court, the court cannot draw a negative inference from your failure to answer a question. That was a decision made under Griffin v California.
And at this point, it’s old case law, but the essential ruling was that in criminal court, the state is not allowed to use, or I should say the prosecution may not use your silence against you for the purposes of establishing guilt.
Now that’s in criminal court. Civil court, you don’t get the benefit of that ruling. Civil court, the court can absolutely draw negative inferences from your failure to answer the question.
Now there is some case law in Oklahoma that carved out some exceptions to that. It’s mostly in the context of if you’re sitting in deprive court because deprive court can end with you losing your rights to your children.
And because it involves a significant constitutional right in the form of your right to the care, custody, and control of your child under Troxel v Granville, there is some case law that stands for the premise that the court can’t force you to choose between your right against self-incrimination and your right to your children.
However, that’s in deprive court where the court has the power to terminate your rights to your children. In family court, you can certainly make that argument. I have. Typically what that will get you is a pass, but if you’re actually up on the stand and you plead the fifth, then you’re typically looking at the possibility of a negative inference based on your refusal to answer.
So you can plead the fifth in civil court. In family court, it may end up with a negative inference against you. However, depending on the nature of the crime you’re accused of, if your hand is forced, it’s usually better to shut up and take your lumps in civil court, rather than talk and get hammered potentially in civil court and criminal court.
Now if you have questions about that, or if you’re facing a situation where you may have to plead the fifth in civil court, then you should go to makelaweasy.com and talk to us because we’d like to help you out. Thanks, guys.
