February 2019 • Louisiana Advocates
9
Who can invoke
the Fifth Amendment?
Any individual, regard-
less of whether a party to
the proceedings at bar, may
invoke the privilege against
self-incrimination. Kastigar
v. United States, 406 U.S. 441,
444 (1972).
When can the Fifth
Amendment be invoked?
The Fifth Amendment
can be invoked whenever
an individual has a reason-
able fear that providing truthful testimony
might incriminate him in a future criminal
proceeding. Kastigar v. United States, 406
U.S. 441, 444 (1972). The fear may be “re-
mote,” but it must be more than a “fanciful”
fear. In re Corrugated Container Antitrust
Litig., 620 F.2d 1086, 1091 (5th Cir. 1980)
(quoting In re Folding Carton Antitrust
Litig., 609 F.2d 867, 871 (7th Cir. 1979)).
How will the court evaluate
whether the invocation of
the Fifth Amendment is justified?
When an individual invokes the Fifth
Amendment, it is up to the court to deter-
mine whether the privilege is justified given
the situation. The court will look at each
question that was posed and determine:
(1) is the answer sought incriminating on its
face or in context (e.g., inconsistent with pre-
vious sworn testimony); and (2) is the wit-
ness’s asserted fear of criminal prosecution
reasonable under the circumstances? United
States v. Redhead, 194 Fed.Appx. 234, 236 (5th
Cir. 2006) (citing Hoffman v. United States,
341 U.S. 479, 486-87 (1951)).
When is the invocation of
the Fifth Amendment admissible?
When a party to the action invokes the
Fifth Amendment, whether at a deposition
or trial, the invocation is
admissible if it is relevant
and not otherwise prohib-
ited by other rules. F.D.I.C.
v. Fidelity & Deposit Co. of
Maryland, 45 F.3d 969 (5th
Cir. 1995).
Is an adverse inference
permitted when
a party invokes
the Fifth Amendment?
When a party invokes the
Fifth Amendment privilege
against self-incrimination
in a civil case, the court is permitted to in-
struct the jury that it may draw an adverse
inference that the answer would have been
against the party’s interest. Mitchell v.
United States, 526 U.S. 314, 119 S. Ct. 1307, 143
L. Ed.2d 424 (1999); Baxter v. Palmigiano, 425
U.S. 308, 318, 96 S. Ct. 1551, 47 L.Ed.2d 810
(1976); Farace v. Independent Fire Insurance
Co., 699 F.2d 204, 210 (5th Cir. 1983).
Is an adverse inference against an
employer permitted when its employee
invokes the Fifth Amendment?
Federal courts, including the Fifth
Circuit, have frequently allowed an adverse
inference instruction against an employer
when its non-party employee invokes the
Fifth Amendment. Aspen Tech., Inc. v. M3
Tech., Inc., 569 Fed.Appx. 259, 266 (5th Cir.
2014); LiButti v. United States, 107 F.3d 110
(2d Cir. 1997); RAD Servs. v. Aetna Casualty
& Surety Co., 808 F.2d 271 (3d Cir. 1986);
Cerro Gordo Charity v. Fireman’s Fund Am.
Life Ins. Co., 819 F.2d 1471 (8th Cir. 1987).
Is an adverse inference permitted
when a non-party invokes
the Fifth Amendment?
When a non-party invokes the Fifth
Amendment privilege, it is within the
discretion of the court to allow an adverse
Refresher: effect of invoking the
Fifth Amendment in civil cases
By Kristi S. Schubert; Lamothe Law Firm, LLC; New Orleans, Louisiana
Kristi Schubert
10 Louisiana Advocates • February 2019
inference instruction, depending on the
facts and circumstances of the case.
An adverse inference will sometimes be
warranted even when the non-party has no
special relationship to the party. However,
in these circumstances, the jury may not
base its verdict solely on the adverse infer-
ence. F.D.I.C. v. Fidelity & Deposit Co. of
Maryland, 45 F.3d 969 (5th Cir. 1995).
Can a witness make a blanket assertion
of the Fifth Amendment privilege?
The privilege applies on a question-
by-question basis, and a blanket invocation
of the privilege is not appropriate.
United States v. Goodwin, 625 F.2d 693, 701
(5th Cir. 1980).
Can the Fifth Amendment be invoked
in private forums?
The Fifth Amendment privilege typically
only applies to testimony made in a
governmental forum. It has been held not
to be applicable to internal company
investigations or union disciplinary pro-
ceedings. U.S. v. International Broth. of
Teamsters, 945 F. Supp. 96 (S.D.N.Y. 1996);
Nuzzo v. Northwest Airlines, Inc., 887 F.
Supp. 28 (D. Mass. 1995).
Does the Fifth Amendment privilege
apply to document production?
Yes, when the production is “testimo-
nial” in nature. Courts have upheld the
Fifth Amendment privilege when invoked
by a defendant to prevent the production of
materials and documents in response to a
subpoena. United States v. Hubbell, 530 U.S.
27, 120 S. Ct. 2037, 147 L. Ed. 2d 24 (2000).
However, it cannot be invoked to prevent
production of physical or real evidence like
photographs, voice exemplars, DNA sam-
ples, measurements, and writing exem-
plars. Pennsylvania v. Muniz, 496 U.S. 582,
110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990).
If a witness invokes the Fifth
Amendment at a deposition,
can that same witness testify
to new information at trial?
The judge will determine on a case-by-
case basis whether the witness is allowed to
testify at trial, but courts have frequently
precluded witnesses from testifying to new
information at trial when they invoked the
Fifth Amendment in their deposition.
Nationwide Life Ins. Co. v. Richards, 541
F.3d 903 (9th Cir. 2008); Bourgal v. Robco
Contracting Enterprises, Ltd., 969 F. Supp.
854 (E.D.N.Y. 1997); F.T.C. v. Sharp, 782
F. Supp. 1445 (D. Nev. 1991).
Can a corporation invoke
the Fifth Amendment?
A corporation cannot invoke the Fifth
Amendment. Bellis v. United States, 417 U.S.
85, 94 S. Ct. 2179, 40 L. Ed. 2d 678 (1974). Fur-
ther, since a corporate document custodian
holds corporate records in a representative
capacity, the custodian of records cannot
invoke the Fifth Amendment to avoid pro-
ducing corporate documents even when the
documents would incriminate the custodian
personally. Braswell v. United States, 487 U.S.
99, 108 S. Ct. 2284, 101 L. Ed. 2d 98 (1988).
MEDIATION AND
ARBITRATION OF
COMPLEX DISPUTES
p: 866.367.8620 e: info@ pattersonresolution.com w: pattersonresolution.com
BATON ROUGE | NEW ORLEANS | LAFAYETTE | SHREVEPORT | MONROE
