USA Law and Practice Contributed by: Steven Molo, Robert Kry, Megan Cunniff Church and Walter Hawes, MoloLamken
that could implicate them in a crime. Invoking that right is often referred to as “taking the Fifth” . Invoking the Fifth Amendment An individual may invoke the Fifth Amendment if the following three conditions are met: • the communication is testimonial – the act of producing documents may be considered testimonial if the act of production is incrimi - nating in itself, because it establishes the existence of the documents, the producer’s possession of the documents or the authen - ticity of the documents; • the testimony is compelled – for example, information or documents sought by a sub - poena or court order would be considered compelled testimony, and compelled testi - mony also encompasses responding to ques - tions during an investigation, at a deposition or at trial; and • the testimony is self-incriminating – in other words, the testimony would supply evidence, or lead to the discovery of evidence, that could be used to prosecute the individual for a crime. The self-incrimination requirement means that individuals who have received immunity or a par - don for a crime, or who have already been con - victed and sentenced, may not invoke the Fifth Amendment to avoid giving testimony. Such testimony could not be used to prosecute the individual, and thus is not incriminating. Consequences of Invoking the Fifth Amendment The consequences of invoking the Fifth Amend - ment differ in criminal and civil cases. In a criminal case, a defendant’s silence or refus - al to testify on Fifth Amendment grounds can -
not be used as evidence. A prosecutor cannot make the argument that the defendant’s silence implies guilt. In a civil case, however, the judge or jury can draw an adverse inference from a party’s invo - cation of the Fifth Amendment. The individual’s silence can be interpreted to support liability. As discussed in 2.5 Criminal Redress , that dif- ferent treatment is a complicating factor in the case of parallel civil and criminal proceedings. It may lead to a stay in the civil case until the criminal case is resolved. Complications in the Corporate Context The Fifth Amendment’s self-incrimination clause does not apply to corporations. As a result, a corporation may not refuse to comply with a discovery obligation or to answer questions on Fifth Amendment grounds, and can be com - pelled to provide testimony against itself. When a subpoena requests corporate records, those records must be produced, even if the corporate representative who is facilitating the response would be personally incriminated by that infor - mation. A corporate representative can invoke the Fifth Amendment personally, and their silence cannot be used against them in a criminal matter. An employee may invoke the Fifth Amendment in response to a subpoena for oral testimony, even in their capacity as an employee of the corpora - tion. In both cases, however, the silence can lead to an adverse inference to support the liability of the corporation.
441 CHAMBERS.COM
Powered by FlippingBook