Civil Lawsuits and the Fifth Amendment Protection Against Self-Incrimination

During the past week, the media has been awash in reports about disgraced former entertainer being released from prison after his conviction for sexual assault was tossed out by the Pennsylvania Supreme Court. At the heart of the decision was Cosby’s Fifth Amendment right against self-incrimination and the interplay between that constitutional guarantee, criminal cases, and civil lawsuits. This has raised concerns and confusion among people considering civil lawsuits in cases in which the perpetrator of an injury-causing act may also face criminal charges.

If you've spent any time watching television dramas or crime stories on film, you've heard more than a few characters "plead the Fifth." Therefore, you may have a general understanding that the Fifth Amendment exists. You may understand to some degree that a person can avoid questioning in criminal court by invoking the Fifth Amendment. On the other hand, if you are like most people, you probably don't know the proverbial ins and outs of the Fifth Amendment to the Constitution of the United States and the rights it affords to citizens.

What is Included in the Fifth Amendment to the Constitution?

The Fifth Amendment right against self-incrimination is the best known element of this element of the U.S. Bill of Rights and of the first 10 Amendments to the Constitution of the United States. There are other provisions in the Fifth Amendment that warrant mention, even though the focus of this discussion is on the protection against self-incrimination. The other protections afforded by the Fifth Amendment are:

  • Right to remain silent when in police custody
  • Availability of writs of habeas corpus in certain situations (right to be brought before a judge to consider the constitutionality of being detained or incarcerated)
  • Protection against double jeopardy (protection against being tried for the same crime more than one time)

Constitutional Provision Against Self-Incrimination

The Fifth Amendment proscription against self-incrimination in direct. The constitutional provision provides:

A person "shall not be compelled in any criminal case to be a witness against himself."

Despite the inherent simplicity of the language of the Fifth Amendment prohibition against self-incrimination, this doctrine has been the subject of heated scholarly and courtroom debate for generations. With that said, there are some basic considerations associated with the right against self-incrimination that have been solidified through the years.

The Fifth Amendment applies only to a criminal defendant or to a person who is in jeopardy of possibly being charged with a crime. This is why you will sometimes see a person plead the Fifth Amendment when testifying before a Congressional committee. That individual is not a criminal defendant. However, if an individual is under oath and asked a question that necessitates an answer that could subject that person to criminal jeopardy, pleading the Fifth is acceptable.

History of Right Against Self-Incrimination

The history of the right against self-incrimination extends back beyond the early days of the American colonies. The origins of the right against self-incrimination in the U.S. justice system can be traced to the 1600s in England.

Puritans refused to cooperate with interrogators intent on coercing these people to reveal their religious affiliation. They would remain silent in the face of coercion and torture. Ultimately, in the middle of the 17th century, the English Parliament granted citizens the right against self-incrimination.

Testimony and the Fifth Amendment
A criminal defendant has the absolute right not to testify pursuant to the Fifth Amendment right against self-incrimination. The prosecution, defense counsel, even the judge presiding at a trial cannot force a criminal defendant to testify against his or her self. Jurors in a criminal trial are not permitted to consider a defendant's refusal as evidence of guilt. Oftentimes, a judge provides jurors with a specific instruction about not to infer anything from a criminal defendant's decision not to testify during a trial.

What Is Not Covered by the Fifth Amendment

There are certain elements of a criminal investigation that the Fifth Amendment does not cover. The Fifth Amendment does not protect a criminal defendant from be subjected to being fingerprinted or to have that individual's blood drawn. The privilege against self-incrimination extends only to communication evidence.

Ensuring that the Fifth Amendment is properly asserted can prove complicated in some situations. As a result, when an individual has been charged with a crime or faces the prospect of an indictment, that person is well served engaging the services of an experienced criminal defense attorney. An experienced criminal defense lawyer is in the best position to assist a person successfully assert his or her right against self-incrimination. Typically, a criminal defense lawyer will schedule an initial consultation to discuss a case with no cost to and no commitment from a prospective client.

If you have concerns or questions about your rights in a personal injury case, including the possible impact of the Fifth Amendment, the experienced legal team at The Doan Law Firm is here for you. You can connect with a Doan Law Firm personal injury lawyer any time of the day or night by calling us at (800) 349-0000. There is never a charge for an initial consultation and case evaluation with a personal injury lawyer from our firm.


The Doan Law Firm makes an attorney fee promise to you. We never charge an attorney fee unless we win your case for you.

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