Q: Can I plead the 5th at my deposition?
I was being sued in a civil case where the Judge ruled in their favor but now I'm counter sueing them. So I am becoming the Plaintiff in this situation. They are trying to get my counterclaim dismissed next month but they have scheduled a deposition with me. I'm guessing to try to get information to get it dismissed. Can I plead the 5th in the depositon to all their questions at the beginning in an opening statement and then following each question or could this affect my Countersuit?
A:
No, you cannot prophylactically assert the Fifth Amendment in the manner described. You must assert the Fifth Amendment to the specific question asked and must have a good faith basis for doing so. Generally speaking, a good faith basis means that you have a reasonable fear that your answers can be used against you in a criminal proceeding and might tend to subject you to criminal responsibility.
In a civil case, the assertion of the Fifth Amendment in a deposition allows the trier of fact to draw inferences against you which can be sufficient to support the opposing party's claims or defenses. It also allows the judge to preclude you from offering any evidence on the subjects of those questions to which you have asserted your Fifth Amendment privilege. Many cases hold that a civil litigant cannot "use his Fifth Amendment as a shield" and while he "obviously had the right to claim the privilege, he cannot eat his cake and have it too."
The adverse impact of asserting the Fifth Amendment privilege against self-incrimination can be profound in many cases. You should consult with an experienced litigation attorney in confidence concerning the particular substance and subject matters involved in both your civil and criminal cases to ascertain how to address them best in your deposition.
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