The Fifth Amendment to the U.S. Constitution provides significant protection for criminal defendants. In essence, it states that criminal defendants cannot be forced to provide testimony against themselves. They can’t be forced to talk during an interview, and they can’t be forced to testify during a trial. Further, if they choose to remain silent, that fact cannot be held against them in the criminal case.
If this right to silence extended to an accompanying civil case, it could create problems for crime victims. Criminal defendants could essentially stonewall victims by asserting their Fifth Amendment right. In refusing to testify, criminal defendants would deny crime victims important information about the civil claim. This would be information that a regular civil plaintiff would normally be entitled to receive.
Fortunately, the Fifth Amendment is treated differently in the civil context. Although criminal defendants can still assert their right not to testify, this action is not without negative consequences. For instance, if a criminal defendant refuses to answer questions during the discovery phase of a civil case, the judge can prohibit that defendant from later testifying at the civil trial. (You can imagine what a disadvantage this would be for the defendant.)
Additionally, the law allows negative inferences to be drawn from the fact that a defendant refuses to testify. Judges and juries can infer from a defendant’s silence that, had they provided testimony, it would have been unfavorable to them. Essentially, in a civil case, a defendant’s silence can be held against them.
Criminal defendants walk a fine line when it comes to testifying in civil cases. If they choose to testify, anything they say can be used against them in the criminal matter. They can remain silent, but the silence can significantly hurt their chances of success in the civil case.
