According to a 2006 survey, while almost 25% of Americans cannot name a single right guaranteed by the First Amendment, 38% erroneously believe that the right against self-incrimination is one of them. Thanks in part to television crime shows, a third of all Americans at least understand that they have the right to remain silent, even if they don’t know exactly where that right can be found in the Constitution.
Of course, a witness’s right not to self-incriminate is found in the Fifth Amendment. (Article I, Section 10 of the Texas Constitution contains a similar provision as well.) This Constitutional right includes a defendant’s right to: (1) remain silent, (2) not be called as a witness for the prosecution, and (3) not have the fact that he exercised his right against self-incrimination used against him. This principle is well-established in the criminal context where juries are instructed that the defendant cannot be compelled to testify, and that if he exercises his right not to testify, the jury cannot use this as any evidence of guilt whatsoever.
In civil cases, however, the juries receive no such instruction. First of all, any party or witness in a civil case may be called to testify, whether they are facing criminal charges or not. Second, witnesses in civil actions do not enjoy an unfettered right to refuse to answer questions on Fifth Amendment grounds. Finally, in a civil case it is perfectly permissible for a judge or jury to infer that a witness is guilty of wrongdoing if they invoke the Fifth Amendment privilege against self-incrimination in response to a question. (Of course, civil juries can’t send witnesses to jail for invoking the Fifth Amendment; they can only find them civilly liable.)
The Right to Refuse to Answer:
Just because a witness can been called to testify in a civil case doesn’t mean that the witness must answer every question posed. Witnesses still enjoy their federal and state Constitutional rights against self-incrimination, even though they are not testifying in a criminal proceeding. If a question calls for an answer that might cause the witness to self-incriminate, then the witness may invoke the Fifth Amendment privilege against answering that question. Even in the civil context, this right against self-incrimination is an important one, because if a witness fails to invoke the Fifth Amendment and thereafter provides an incriminating answer, that answer can be used against the witness in a subsequent criminal case.
Unlike criminal cases, however, when a witness in a civil case invokes the protections of the Fifth Amendment, the inquiry does not simply stop there. It is well-settled law in Texas that when a witness in a civil case invokes the Fifth Amendment, the assertion of this privilege is subject to scrutiny by the judge, who will determine whether the refusal to answer is made in good faith and is justifiable under the circumstances. Such an inquiry is a delicate undertaking, because the witness cannot be compelled to disclose the very information that the privilege protects, but in order to uphold the privilege, it must be shown that answering the question is “likely to be hazardous” to the witness.
As the Texas Supreme Court pointed out in Ex Parte Butler, the witness must be in potential jeopardy of prosecution under criminal law. 522 S.W.2d 196 (Texas 1975). For example, the threat of civil penalties and forfeitures – even if considerable in scope and amount – will not give rise to Fifth Amendment protections, since the conduct does not subject a witness to criminal prosecution. Likewise, for example, a witness may be compelled to testify as to the facts surrounding his committing insurance fraud (a crime), if it occurred more than five years earlier and hence beyond the criminal statute of limitations. (In that situation, further inquiry might be required to determine any applicable tolling provisions before the testimony is compelled.) If after careful inquiry and consideration of all the circumstances of the case, the judge is perfectly clear that the witness is mistaken and that the answer cannot possibly have a tendency to incriminate, then the judge can compel the witness to answer the question. Failure to answer at that point will subject the witness to possible contempt of court, which, ironically enough, may involve assessment of jail time.
It is also important to note that judicial scrutiny of the legitimacy of the Fifth Amendment invocation does not occur automatically. A court is not required to perform this inquiry sua sponte – opposing counsel must seek the trial court’s intervention through a motion to compel or other procedural tool. If counsel fails to raise this issue and provide the trial court with the opportunity to consider the issue, then any complaint as to improper use of the privilege is waived on appeal.
The Evidentiary Value of Invoking the Fifth:
Once it has been established that the witness has a right to refuse to answer a question, what happens next? Simply stated, the judge or jury can infer that a witness committed the very crime that he was protected from testifying about. But infer is all they can do. Invoking the Fifth Amendment does not give rise to a presumption of culpable conduct nor is it, standing alone, sufficient evidence to prove wrongdoing. Courts have routinely held that a Fifth Amendment claim of privilege will not substitute for other relevant evidence, pointing to the language of the U.S. Supreme Court case which first recognized the negative inference concept, that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”
The failure to offer probative evidence in addition to the assertion of the Fifth Amendment privilege leaves the fact-finder with only an inference, and because an inference is considered nothing more than a mere suspicion, the inference in and of itself does not constitute more than a scintilla of evidence. Therefore, without more evidence, the negative inference which is permitted in these circumstances will not support a finding of fact or raise a fact issue which precludes summary judgment.
Consequently, while the negative inference associated with a Fifth Amendment claim of privilege is an important tool in a civil attorney’s arsenal, it is important that other evidence be discovered and presented both in summary judgment proceedings and at trial. When faced with a no-evidence challenge, either by motion for summary judgment or directed verdict, it will be important that the record contain additional probative evidence of the culpable conduct. Reliance on the inference of guilt alone simply will not overcome the evidentiary hurdle.
One might ask if the very person, perhaps the only person, who can testify as to essential evidentiary facts refuses to testify, how then can a party obtain probative evidence sufficient to defeat a no-evidence challenge? In a recent appeal involving a hit-and-run fatality, an attorney raised this very point, arguing that public policy and the interests of justice are not served by allowing a wrongdoer to conceal all evidence, frustrate the discovery process, and evade civil liability through use of the Fifth Amendment. Unfortunately, because the attorney failed to raise these public policy arguments before the trial court, the issue was deemed waived and not considered on appeal. Webb v. Maldonado, 331 S.W.3d 879 (Tex. App. — Dallas 2011).
The bottom line is that in a civil case, the invoking of the Fifth Amendment is powerful evidence – juries instinctively understand that in order for a person to claim the right not to self-incriminate, there must have been incriminating conduct to begin with. When instructed by the court that they may consider this as evidence of guilt, most juries do not hesitate to do so. So, while the Fifth Amendment claim may be used as the nail in the coffin of your opponent’s case, there will be no burial without something more.
– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas
(For more information about the use of the Fifth Amendment privilege and Miranda warnings regarding its use in the criminal context, see http://blog.amjudges.org/?p=110.)
 The First Amendment recites five basic freedoms – freedom of speech, freedom of the press, freedom of religion, freedom to assemble and freedom to petition for redress from the government.
 This inference is recognized in both federal and state case law as well as Rule 513(c) of the Texas Rules of Evidence.