“Taking the Fifth“ has its risks

We normally associate “taking the Fifth” with a criminal case. Refusing to testify or answer questions where you are a criminal defendant cannot be used against you by the jury. This is your constitutional right against self-incrimination. 

In civil cases, the impact of refusing to testify is more complicated. Consider what happened today in New York. 

Donald Trump appeared this morning for questioning under oath in New York’s continuing investigation into his business practices. He refused to answer questions, citing his Fifth Amendment rights. 

Although he certainly had the right to refuse to answer, that refusal may come back to bite him. In a CIVIL case, a jury may consider the refusal to testify or answer questions as evidence of wrongdoing.  This is especially true where there is independent evidence of the facts at issue. 

Trump’s argument against testifying today is at least partially based on the fact that he is currently also under criminal investigation. His fear is that his statements under oath in the civil case could be used against him in a criminal case. When he previously raised that argument in order to delay the civil investigation, the New York courts rejected it. 

Trump’s failure to succeed in what are his typical delaying tactics have now placed him in a quandary. If he does not testify in the civil matter, the jury could later use that silence to find him liable for significant money damages. If he does testify in the civil case, that testimony might damage his defense in a criminal matter. 

In spite of what has the potential of being a massive financial judgment against him, Trump really cannot afford to testify in the civil case. 

In my summation before the jury, I would note Trump’s own statement at an Iowa rally in 2017: "You see the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?" 

His attorney would respond with his statement posted today on his social media site: “I once asked, 'If you're innocent, why are you taking the Fifth Amendment?' Now I know the answer to that question. I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution." 

My rebuttal then would be short and sweet. “It is clear that the defendant feels comfortable taking completely opposite positions when it suits him. As such, he has no credibility.”