At trial, a criminal defendant has a constitutional right not to have his silence used against him. For this reason, the criminal defendant would never take the stand in the first place. Defense counsel would simply tell the judge that the defendant is invoking his or her Fifth Amendment right prior to the jury being brought in. Furthermore, the defendant has a constitutional right to demand that the judge instruct the jury that the defendant’s silence cannot be used against him (see Griffin v. California, 380 U.S. 609 (1965)). So, it is clear that in criminal cases, a defendant’s right to remain silent cannot be used against him.
In civil cases however, it is not quite so simple. A civil defendant does not always have a right to remain silent, as there are generally no criminal ramifications to his statements that might implicate the Fifth Amendment. So, take for example a criminal defendant accused of vehicular manslaughter after he drove a car into an elderly woman while intoxicated, killing her. Plaintiff’s attorney seeks to depose the defendant.
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