Tuesday, July 1, 2014
Fifth Amendment Protection
The Fifth Amendment generally protects a party from incriminating themselves in a criminal case. However, what application does it have in a civil case? The law is pretty clear that a witness can invoke the privilege in a civil case. In the case of Morgan v. U.S.F.& G., 222 So.2d 820 (Miss. 1969), the Mississippi Supreme Court set out the ground rules on page 828 that (1) The witness must take the witness stand; (2) The witness must invoke the privilege on a question-by-question basis; (3) The claim of privilege is determined by the court, and not by the witness; and (4) An inference may be drawn against the witness. The fact that an inference can be taken often has many consequences. I was involved in a case this week where a party could not legitimately answer a number of extremely relevant questions on a custody case without severely incriminating herself. Result, settlement reached with custody to the Father.