Pleading the 5th Amendment in Florida Civil Cases

Much has been reported lately about Florida Republican gubenatorial candidate Rick Scott invoking 75 times his Fifth Amendment right against self-incrimination in a civil case brought by a Nevada company.

The Fifth Amendment to the United States Constitution was ratified in 1791. It provides as follows:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. Kastigar v. U.S., 406 U.S. 441 (1972). Accordingly, assuming that Mr. Scott reasonably believed his statements could be used against him in a criminal prosecution, he had the constitutional right those 75 times to refuse to answer questions put to him under oath.

Time and again the U.S. Supreme Court has ruled that invoking the Fifth Amendment cannot be used in a criminal court to suggest guilt. As the court wrote in 1956, “The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury.” Slochower v. Board of Higher Education of New York City, 350 U.S. 551 (1956).

The law has developed differently in the context of civil (vs. criminal) cases. Case law limits the effectiveness of the 5th Amendment to be a shield against accountability in civil matters. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551 (1976) and Fraser v. Security and Investment Corp., 615 So. 2d 841, 842 (Fla. 4th D.C.A. 1993). When the 5th is pleaded in a civil matter, adverse inferences can be drawn from the party’s silence. As articulated by the Fraser court, “Such a rule is both logical and utilitarian. A party may not trample upon the rights of others and then escape the consequences by invoking a constitutional privilege – at least not in a civll setting.”

Adverse inferences that arise in situations where a party that can provide information on a subject fails to do so, frequently have significant consequences in civil cases. As noted by U.S. Supreme Court Louis D. Brandeis, “Silence is often evidence of the most persuasive character.”

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.