Recently I had to make a judgement call as to whether to allow my client to testify in a civil deposition or take the Fifth Amendment. The decision came down to “do I know all the facts?” Since the answer was no, I had the client invoke her Fifth Amendment right against self-incrimination each and every time a question was asked. Some of the questions included whether in fact she was responsible for the crime. By answering the way that she did, the (civil) jury will undeniably be left with the belief that she is responsible because the Fifth Amendment implies that the answer to the question would incriminate her. To the public, the client is in essence saying “I did it but I’m not going to admit it.” We can talk about the Constitution all day long but the jury has enough when the deposition question is asked, “are you guilty” and they respond by saying “I take the Fifth.”

That is a hard pill to swallow listening to the invocation of the Fifth Amendment knowing that it will be played in front of a civil jury. But the risk in allowing extensive questioning of a person suspected of committing a serious crime is just too great to allow them to be pinned down on specific facts which later can be used to convict them in a criminal trial.

The decision basically comes down to protecting the client’s wallet or freedom. It has long been my position that you can always make more money but you can never regain freedom once it is lost. We are fortunate in this country to have Fifth Amendment protections. Even when they come at a financial price.

About the author : deVlaming & Rivellini P.A.