When I Take the Fifth, I Feel Guilty


Now that we have all had a good chuckle over Michael Cohen and The Donald, we may ask: What are the actual rules on taking the Fifth?

Good explanation here. I’ll summarize the summary, and add some points.

First, although the words of the Fifth Amendment indicate only that it applies in criminal cases, binding case law extends the rule to testimony in civil cases as well.

Thus, where a witness in a civil case has a good faith belief that truthful testimony in a civil case would tend to prove criminal liability, she may refuse to testify.

Second, in a civil case, unlike a criminal case, the jury is permitted to draw an adverse inference where a party relies on the Fifth Amendment in refusing to respond to evidence offered against him or her.

I have some experience in these matters, and know that attorneys advising parties and witnesses in civil cases commonly urge expansive assertions of Fifth Amendment rights. The point is that if it’s a close call whether to assert the immunity or not, and if the witness goes ahead and testifies anyway, it may later be argued that the witness has waived her Fifth Amendment rights.

That means, of course, that when you assert your Fifth Amendment rights in a civil case, common sense implies guilt, and the jury is permitted to apply that common sense and thus to infer liability. So, as far as the civil suit is concerned, if you take the Fifth, you are likely to be screwed, blued, and tattooed. But being screwed civilly, lawyers often reason, is better than having your client go to the hoosegow.

Finally, judges in civil cases have broad powers over the scheduling of cases. I think that what Cohen is saying here is that the California lawsuit over the hush money agreement should be postponed until Cohen straightens out whatever minor embarrassment results from the FBI raid on his home, his office, and his hotel room.

Or until hell freezes over, whichever comes first.

Doesn’t sound too persuasive to me. For one thing, Stormy has her own rights, to her day in court. But we will see what we will see.