Today was an interesting day. In my 11 years of practicing criminal defense, I've never had a judge request my presence in the courtroom for a civil trial. Today that changed. I was asked by the presiding judge to represent a witness in a civil matter. The judge explained that based on a line of questioning by the plaintiff's attorney, she was concerned that the witness would make self-incriminating statements, which could result in criminal charges. Since I was specifically requested by the judge on this case, I agreed to represent this person while she was on the stand.
Before retaking the stand, I went over the witness's Fifth Amendment rights with her. I explained that based on her testimony, she could be prosecuted for criminal offense. I went over and went over our strategy with her and advised her that I would assert her Fifth Amendment privilege on her behalf. The witness retook the stand and the plaintiffs attorney began to question her. Most of the questions posed to this witness concerned questionable conduct that could be construed as criminal in nature. I objected to the majority of the questions and asserted her Fifth Amendment privilege. The witness, who is not represented by an attorney, was extremely grateful and appreciative of the assistance I provided today pro bono.
So what is the take away from this blog post? The take away is that even in civil proceedings while you have to testify truthfully you need to be very careful that you don't open yourself up to additional civil liability, and more importantly, criminal liability. Because a civil trial is just that; a trial. All witness testimony is recorded as well as the statements and remarks by the attorneys and judge. And the witnesses crossed the line into the criminal realm, that person could be facing future criminal charges.
So what does the Fifth Amendment privilege mean? The fifth amendment of the U.S. Constitution provides that no witness can be forced to give testimony against themselves; and a witness has the right to refuse to answer questions that may in fact incriminate themselves, resulting in further prosecution. The right to remain silent and the right against self-incrimination is one of the same. These rights can be asserted even in a civil proceeding. Often times, I come across these complex issues when defending clients who've been charged with a domestic violence assault and a subsequent protection from abuse complaint has been brought against. Because your adversary has a right to call you as a witness in a civil proceeding, you have to be careful that you don't destroy your defenses in a companion criminal case or open yourself up to criminal liability based on your testimony.
Our Fifth Amendment rights are fundamental protections against improper criminal prosecutions. In most cases, where a defendant is going to be questioned following arrest, the investigating officer will read to that person there "Miranda rights". Your Fifth Amendment privilege is covered under Miranda. Additional fundamental constitutional protections include our fourth amendment rights: the right to be free from unreasonable searches and seizures. The meaning of these rights and the application of these rights have been the subject of decades of litigation. They have been hotly contested in court because they are in fact so important and fundamental to our civil rights and liberties.
If you find yourself the subject of litigation, keep in mind that anything you say while on the stand can be used against you in criminal court. If you think there is even the slightest chance that criminal charges could result based on your testimony, it's imperative that you retain a criminal lawyer to represent you at the civil trial. If not, someone like me may not be there to help you out in a pinch.