In an earlier blog I told my readers I would occasionally discuss certain rules of evidence which I found to be interesting.  That one was about the “T”word: traffic tickets.   Today’s post is about the consequences of someone in a CIVIL case asserting his/her right against self incrimination in the CIVIL case.  The person can be a party, either the Plaintiff or a Defendant or merely a witness.  If the Plaintiff asserts the FIFTH, then his case can be dismissed.Kerben v Intercontinental Bank.   Since I only represent Plaintiff’s I will not take their case if they will need to assert the Fifth.  They can come back later after the Criminal case is over (in their favor) if the statute of limitations has not run out.

This  often comes up in different ways.  It can be almost any crime because there is always a victim and the victim (my client, the Plaintiff) can sue while the criminal case is still going on.

In the context of an auto case it usually comes up when the defendant is suspected of drunk driving or is suspected of being high on marijuana or some other illegal drugs,  and charges are either pending or may be charged. If a trucker or public employee is involved in an accident a drug screen is usually done within 24 hours.

But when the defendant asserts the FIFTH, his defense is not stricken and he is not making a claim so nothing gets dismissed.  Is he home free? Depends.

When the CIVIL case gets underway the Plaintiff’s attorney will schedule the person with charges pending against them (the allegedly drunk driver)  for deposition and ask whether he was either drunk or using illegal drugs when the crash happened. The defendant then usually asserts his/her Fifth Amendment right against self incrimination.  He will assert his fifth amendment privilege and refuse to answer.   Once the  CIVIL case goes to trial, the Plaintiff’s attorney (me)  is allowed to tell the jury about the fact that the defendant asserted his fifth amendment privilege..  Juries do not like that. It is very incriminating and looks terrible. (The State Attorney is not allowed to comment on assertion of the Fifth Amendment privilege in a criminal case.)

Why would the Plaintiff’s attorney want to bring out in a CIVIL case that the Defendant asserted his Fifth Amendment privilege?  Because, in a CIVIL case a jury can draw an inference  from the silence of the Defendant that he was negligent and his silence can be used against him.  Also, it makes the defendant look lousy. That is what happened in Fraser v Security and Inv.Corp.

Now, many defense attorneys know how bad it makes their clients look when a CIVIL jury hears their Client took the 5th.  It is basically fatal to the defense.  So what do they do?  They will ask for a Court Order abating (staying) all of the CIVIL proceedings for some definite time until after the CRIMINAL case is finished.  This shields their lilly-white clients from being embarrassed by asserting the Fifth and it being brought up by me in front of the jury in the CIVIL trial later on . The criminal case may take years and of course, that’s perfectly okay with them.  That is exactly what happened in Kerben, supra.

So, a DEFENDANT can avoid looking bad if his attorney gets a court order protecting him from having to give his deposition until his Criminal case is over.

But what about a witness?  Can a witness also get a court order and make a plaintiff or defendant  wait?  No.  The court in the Kerben case says no.

The point of all this is that it is one thing to have an attorney on your side.  It is quite another to have one who knows the rules of law and knows how to use them to your advantage.   After years of trying cases and researching the law, I love to make the law work for my clients

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