What is the Fifth Amendment Privilege? The right comes from the Fifth Amendment of the United States Constitution. The Fifth Amendment applies to all of the states through the Fourteen Amendment. In Missouri, the right against self-incrimination also is found in Article I, Section 19, of the Missouri State Constitution. The Fifth Amendment to the United States Constitution states in relevant portion that, “no person shall be…compelled in any criminal case to be a witness against himself. Similarly, in Article I, Section 19 of the Missouri State Constitution, it provides that, “no person shall be compelled to testify against himself in a criminal cause.”
Clients will often ask if they can utilize their right against self-incrimination (also known as their Fifth Amendment Right) to “remain silent” or to not provide negative evidence or testimony against themselves. The Constitutional privilege against self-incrimination under the Fifth Amendment to the United States Constitution if routinely discussed in criminal cases, however, on occasion, it comes up as a position to be asserted in a civil case, such as a divorce or child custody case. It may come up for example, if a client has been accused of child abuse or is concerned that he or she will face a criminal investigation by the Internal Revenue Service related to filing incorrect tax returns or failing to pay taxes that are due and owing. A client will then request to respond to questions, in a deposition or trial date, by asserting their Fifth Amendment privilege. However, when a spouse or parent in a family law case raises their privilege against self-incrimination, it blocks the other party’s access to relevant, and often very important information, and therefore, it is important that the court balances the rights of both parties to ensure that the court is able to reach a fair outcome in the case.
While Courts in Kansas and Missouri will typically recognize and permit a party to maintain his or her right against self-incrimination, the court obviously, has to provide relief or a remedy for the party who was trying to obtain information, but was unable to get the necessary information due to the other party’s failure to respond and decision to invoke a right against self-incrimination. Equally as important as a party’s civil rights under the fifth amendment is the other party’s rights to have access to and discover relevant information to ensure that full information can be presented to the court in a timely fashion.
Throughout the United States when a Fifth Amendment privilege against self-incrimination is invoked, there is commonly two remedies that the courts try to provide litigants. One remedy is that the fact finder (typically a judge in a family law case) is permitted to draw an adverse inference against the party invoking the Fifth Amendment privilege against self-incrimination. This remedy follows the rule recognized by the United States Supreme Court in the case of Baxter v. Palmigiano that the Fifth Amendment privilege does not forbid an adverse inference against the party in a civil action. The other common remedy that family courts will provide is to determine that the party or spouse who has invoked the privilege is not permitted to seek “affirmative relief.” In summary, this means that you cannot expect to come into the court and refuse to share information while also asking the court to give things (or relief) that the party is asking for. If, for example, a party was asking for maintenance, what used to be known as alimony, but invoked his or her privilege against self-incrimination, logic dictates that the party should not be permitted to seek relief for alimony while refusing to answer questions about whether he or she was honest on tax returns in disclosing his or her income. This is because the damage done to the opposing party in preventing his or her access to records or information is substantial in trying to litigate or address issues in a family law case, especially where the other party is not forthcoming in providing the information needed to adequately prepare for the trial or hearing. Most courts consider this a basic determination of fairness. The party who desires to claim their privilege can do so, but they will not be permitted to gain an unfair imbalance of power while pursuing their rights. Thus, preventing either the evidence or the ability to seek affirmative relief, it balances more fairly the scales of justice in considering the interests of both parties.
If you are faced with a situation where the other party invokes a privilege against self-incrimination in a family law case, it is probably in your best interests to ask your legal counsel to request that the court both, limit the other party’s ability to present evidence on the relevant topics, as well as asking that the court limit the other party’s ability to seek affirmative relief. The Court can also consider being willing to draw adverse inferences against the party invoking his or her Fifth amendment privilege (i.e. assuming that the party is only invoking his or her rights against self-incrimination because if answered, the information shared would be negative for the party refusing to answer).
On the other hand, if you are concerned about the possibility of being required to invoke your privilege against self-incrimination, it is very important- if not crucial to a successful outcome of your case that you share your potential concerns with your legal counsel early on in your case. It is also important that you work with experienced and knowledgeable family law counsel who has dealt with and addressed this type of complicated issue as he or she will have potential solutions and will be able to plan your case in a way that avoids deposition or trial testimony if needed.
When Can You Plead the Fifth?
Electing to exercise your rights against self-incrimination can be done at any stage of your family law litigation. For example, it can be done in response to interrogatories or request for production of documents. It can be done in a deposition or at trial. Even a person who is not a party to the litigation but is subpoenaed to testify or produce documents can invoke the privilege against self-incrimination. However, while it is available at any time in the case process, it is often not a wise step, depending on the circumstances.
There are a variety of potential remedies that the court can provide parties who seek to invoke their Fifth Amendment privilege against self-incrimination. At its core, a party should not be permitted to use their privilege against self-incrimination as both a sword and a shield, i.e. to shield themselves from liability by invoking the privilege, but also as a sword to offensively prevent the other party from obtaining necessary information. In some situations, the court will refuse to allow a party to seek affirmative relief or even strike their pleadings. In other situations, the court will limit the protection to refusing to allow a party to testify or provide evidence about the specific subject or topic matter that the privilege against self-incrimination was invoked.
How Should you Proceed?
In some situations, a party chooses to waive his or her right to the privilege against self-incrimination. If a person admits to an incriminating situation or activity, the person cannot later invoke the privilege as to the same situation. However, if the information given was vague or not specific as to a certain occurrence, the person arguably has not waived his or her privilege. The Court has to find that person knowingly and voluntarily waived his or her privilege against self-incrimination before the court determines it was in fact waived.
It is important that you make a careful, well thought out decision to plead the fifth amendment. It is also important that you have an opportunity to discuss the ramifications of the decision to waive your privilege against self-incrimination (or to invoke it) after the careful and intentional legal advice from experienced and knowledgeable legal counsel. The important analysis is to determine and balance the disadvantages of not being able to assert a claim or argument or to present evidence, with the protection afforded by the Fifth Amendment (obviously, success at a divorce trial is not going to be very beneficial if your testimony lands you in jail for many years due to admissions that were made).
If you believe the Fifth Amendment is going to be an issue in your family law case, it is important that you have the benefit of careful, detailed and experienced legal advice. Call Pingel Family Law at (816) 208-8130 today to schedule your consultation and get the advice you need about addressing the Fifth Amendment privilege against self-incrimination in your case.