Pleading the Fifth: How It Can Harm Your Civil Case

The Fifth Amendment of the United States Constitution and Evidence Code §940 both provide a privilege against self-incrimination. Often, personal injury matters involve a civil matter as well as an on-going criminal matter. The courts recognize this close relationship and how testimony in one may be used in the other. How then does counsel protect a defendant’s testimony in a civil matter pending a criminal matter? There are pitfalls to pleading the fifth in a civil matter. It should therefore be asserted with caution and calculation.

Once a Fifth Amendment privilege is asserted at a deposition, it cannot be waived at trial. In A&M Records, Inc. v. Heilman (1977) 75 Cal. App.3d 554, 566, a litigant asserted his Fifth Amendment right against self-incrimination at deposition and then attempted to testify as to those matters at the time of trial. On the one hand, the court cannot force a litigant to incriminate himself, but on the other, the Discovery Act was enacted to take the gamesmanship out of trial preparation. The court ruled the litigant was appropriately precluded from testifying on the matters he asserted the privilege to avoid unfair surprise at trial. “A litigant cannot be permitted to blow hot and cold in this matter.” (Id. at 566.)

Consequently, the privilege may become a sword rather than a shield protecting testimony. It is critical to determine if the testimony you seek to maintain privileged is not testimony you need at trial. Avoid making an aggressive and blanket assertion that could harm you and your client at trial. Additionally, be specific to the parameters of any deposition where the privilege will be asserted.

ABOUT THE AUTHOR: Jessica Heppenstall graduated from California Western School of Law in 2008. Ms. Heppenstall’s focus is on general liability and personal injury. Contact her at 858.263.4120 or

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