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Steven Henesy

The Fifth Amendment “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

Though a witness in a civil action may invoke the Fifth Amendment, its invocation by a defendant in a civil action is not always without consequence. Courts in New York have routinely permitted negative inferences following a party-defendant’s Fifth Amendment invocation. A question remains, however, as to whether a non-party’s invocation of the Fifth Amendment can result in a negative inference against a party in a civil case in New York.

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