March 17, 2021 | Oklahoma Law
The Fifth Amendment to the U.S. Constitution restricts the government’s power to compel you to testify against yourself. But the Constitution has an important limitation. It says that you cannot “be compelled in any criminal case to be a witness against” yourself.
The Oklahoma State Constitution also offers protection against self-incrimination. It states that no individual “shall be compelled to give evidence which will tend to incriminate him.”
Can you invoke your right against self-incrimination in a civil case? And do other parties in a litigation have an alternate means to obtain your testimony?
Here are some facts about invoking the Fifth Amendment in civil litigation.
The Fifth Amendment
Even when used humorously, your friends and family know what you mean when you “plead the Fifth.” It means that you refuse to answer their question because an honest answer would amount to an admission.
This gets to the heart of why the Constitution includes protection against self-incrimination. If courts could compel you to testify against yourself, you would need to choose between admitting your guilt or lying. But lying in court constitutes the crime of perjury. You would be caught in a trap — incriminate yourself for the charged crime or commit a new crime of perjury.
The Scope of the Fifth Amendment Right
The phrase “criminal case” in the Fifth Amendment refers to where your words are used, not to where they are uttered. This has a few implications:
The Constitution Prohibits Forced Testimony Against Yourself
Any time that you must give sworn testimony, you can invoke the Fifth Amendment, including:
- Testimony before Congress or a state legislature
- Giving a deposition in a civil or criminal case
- Testifying in court for a civil or criminal case
You can refuse to testify in any situation in which the government can compel your testimony. This makes sense because the Constitution prevents the government from using its power to force you to testify against yourself.
A judge can compel your testimony by issuing a subpoena or holding you in contempt of court. You can respond to that subpoena or contempt threat by invoking your Fifth Amendment right.
The Right Against Self-Incrimination Applies Outside of Criminal Trials
The Fifth Amendment says the phrase “criminal case.” But you can invoke your Fifth Amendment right in a civil case or elsewhere if the government could use that testimony in a criminal trial.
In criminal trials, a prosecutor can use your prior testimony against you. For example, suppose that you testify in a civil deposition that you were drunk when you caused a car accident. A prosecutor could use that testimony to prosecute you for drunk driving. By using your testimony in your civil case in a criminal prosecution, the prosecutor has compelled you to be a witness against yourself in a criminal case.
But judges will not remedy this by prohibiting the prosecutor from using your testimony from your car accident case. Instead, the remedy is to allow you to invoke your Fifth Amendment right during the initial civil case. If you waive that right by testifying, a prosecutor can use your words against you in a later criminal case.
The Constitutional Right Includes Additional Protections
The right against self-incrimination is so important that courts have expanded the right beyond its literal terms, including in the following scenarios:
Law enforcement officers must give people that are arrested a Miranda warning. This warning informs them that they are not required to answer investigators’ questions, but if they do, prosecutors can use those answers against them in court.
Courts value the right against self-incrimination so highly that they also require the police to inform suspects that a lawyer can help them assert their right. If a suspect asks for a lawyer, the police must end the interview until a lawyer arrives or the suspect voluntarily restarts the conversation.
Juries in criminal trials cannot draw adverse inferences from a defendant’s refusal to testify. If the jury could penalize the defendant for refusing to testify, the right would be weakened. Defendants would need to choose between admitting guilt, lying, or being penalized by juries for their silence.
In both civil and criminal cases, you can invoke the Fifth Amendment to refuse to produce documents that contain your testimony. For example, you could refuse to turn over text messages and emails that contain your words.
But courts limit this protection to you and your words. You cannot stop the other person in the conversation from turning over your messages. Moreover, you cannot stop third parties, like phone companies, from turning over call logs that show when you sent the messages.
Suppose that you were involved in an accident in which the other driver was drunk. In the civil case, the drunk driver’s lawyer might request your text messages and emails from around the time of the accident.
But suppose that those text messages and emails prove that you were texting during the accident, and thus, you share fault for the accident. These messages also prove that you violated Oklahoma’s texting-and-driving law. Because disclosure could expose you to criminal prosecution, you can invoke your Fifth Amendment right and refuse to turn over the messages.
Your refusal would not stop the drunk driver’s lawyers from getting the evidence they need. The lawyers could subpoena your cell carrier and ISP for your message logs. These logs would show the time of the messages and help the lawyers to prove you were texting while driving at the time of the accident.
The lawyers could also subpoena the other party to the conversation. If your messages included the words “OMG, I hit another car right after I hit send,” those words will make it into your civil case. Since the court did not compel you to produce those messages, no violation of the Fifth Amendment has occurred.
Invoking the Fifth Amendment
A judge can examine your decision to invoke the Fifth Amendment right.
You must meet three elements to invoke the right:
- The requested information must be testimonial in nature
- The testimony must be compelled
- The testimony must be incriminating
To properly invoke the Fifth Amendment, you may need to consult a lawyer. A lawyer can help you to avoid a challenge to your invocation. They can also help you to understand the alternate paths that the other party might use to gain the information that you refuse to disclose.