TAKING THE FIFTH IN A CIVIL CASE

August 8, 2011 § Leave a comment

It is possible for parties and witnesses to invoke their Fifth Amendment privilege against self-incrimination in a civil suit.

You may have experienced some scenarios, or you can imagine them: A party is asked questions about a possibly fraudulent tax return; there are questions that some of the property accumulated in the course of a business subject to equitable distribution may have been criminally acquired; questions about adulterous misconduct could, conceivably, subject the interrogatee to criminal prosecution.

In the case of Morgan v. U.S.F.& G., 222 So.2d 820 (Miss. 1969), the MSSC set out the ground rules at page 828:

  1. The witness must take the witness stand;
  2. The witness must invoke the privilege on a question-by-question basis;
  3. The claim of privilege is determined by the court, and not by the witness;
  4. An inference may be drawn against the witness.

“The yardstick to be used by the courts in ruling upon privilege in a civil case is whether there is a real and substantial hazard of incrimination resulting from a witness’s answer to a [pleading] or from his testimony in open court … [citations omitted] … The central standard for the privilege’s application has been whether the claimant is confronted by substantial and “real,” and not merely trifling or imaginary, hazards of incrimination … ” (at 830).

The privilege is waivable (at 829). See also, Moore v. Moore, 558 So.2d 834 (Miss. 1990); and Wallace v. Jones, 572 So.2d 371 (Miss. 1990).

Although the attorney may assist and advise the witness, it is the duty of the witness himself to make an affirmative indication to the court that he himself is invoking the privilege. Harrell v. Duncan, 593 So.2d 1, 6 (Miss. 1991).

It is up to the witness to provide the court with enough information for the court to make a determination whether the answer would, in fact, incriminate the witness.  Hinds County Board of Supervisors v. Common Cause, 551 So.2d 107, 112 (Miss. 1989). If the court decides that the answer could not be incriminatory, then the witness must answer the question.  In re Knapp, 536 So.2d 1330, 1334-5 (Miss. 1988).

There is an anomalous case in Gibson v. Wright, 870 So.2d 1250 (Miss. App. 2004), in which the COA essentially held that a non-party witness could invoke a blanket Fifth Amendment privilege against testifying in a civil trial. You will have to read the decision yourself and draw your own conclusions as to what effect that decision has on the status of Fifth Amendment protections in civil proceedings.

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