When an individual invokes her Fifth Amendment right against self-incrimination—i.e. “Take the Fifth”—during a criminal proceeding, it is well-settled that her silence cannot be used against her. But, when that same individual is named as a defendant in a parallel civil proceeding, brought by a regulator or a private plaintiff, silence can be quite costly. It can often lead to an “adverse inference”—i.e., the court directing the find-finder in the civil case to infer that that any non-answer provided by the party would not be favorable to that party. See Baxter v. Palmigiano, 425 U.S. 308 (1976). But an individual facing parallel criminal and civil proceedings is not without options or hope when confronted with the need to invoke her Fifth Amendment rights. Below are ten considerations that are key to a winning trial strategy for a party taking the Fifth.
First, not all jurisdictions permit plaintiffs to obtain an adverse inference when an individual takes the Fifth. Indeed, by our count, 14 states prohibit parties to a litigation from obtaining an adverse inference based on a witness’ invocation of her Fifth Amendment rights. For example, in Delaware, the courts have observed that “the Delaware Rules of Evidence do not permit the court to draw an adverse inference from the invocation of a Fifth Amendment right” in a civil case. A. Schulman v. Citadel Plastic Holdings, 2017 Del. Ch. LEXIS 783, at *8 (Del. Ch. Nov. 2, 2017) (citing Del. R. Evid. 512). Many other jurisdictions have also adopted this rule: Arkansas (Ark. R. Evid. 512), California (Cal. Evid. Code §913), Hawaii (Haw. Rev. Stat. §626-1, R. 513), Idaho (Idaho R. Evid. 512), Kentucky (Ky. R. Evid. 511), North Dakota (N.D. R. Evid. 512), Nebraska (Neb. Rev. Stat. §27-513), Nevada (Nev. Rev. Stat §49.405), New Jersey (N.J. R. Evid. 532), New Mexico (N.M. R. Evid. 11-513), Oklahoma (Okla. Stat. Ann. tit. 12, §2513), Oregon (Or. Rev. Stat. §40.290, R. 513), and Vermont (Vt. R. Evid. 512).