The Impact of Adverse Inferences Drawn from a Party’s Failure to Testify in Civil Proceedings

Anyone who watches legal dramas like CSI or Law & Order has heard of a party asserting their Fifth Amendment right against self-incrimination to avoid making certain statements on the witness stand. This assertion comes from a specific clause of the Fifth Amendment, which states that “[n]o person… shall be compelled in any criminal case to be a witness against himself.” In criminal cases, this means that not only can a defendant refuse to testify, but the jury may not consider the defendant’s failure to testify as evidence of guilt, ensuring no criminal defendant is “worse off” by asserting their Fifth Amendment right.  

However, what is not captured in flashy TV dramas is that the Fifth Amendment works entirely differently in civil cases. In a civil case, a party may still assert their Fifth Amendment privilege, but only in the limited circumstances where the witness’s answer would merely “furnish a link in the chain of evidence needed to prosecute the witness for a criminal offense.” This means that the Fifth Amendment can only be invoked in a civil matter where criminal liability may also manifest from that testimony. Where no such threat of criminal liability exists, a civil defendant or party to a civil proceeding can be compelled to testify by the court.  

What is perhaps even more surprising is that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Thus, pleading the Fifth in a civil case allows the judge or jury to infer the defendant’s refusal to testify as an admission of wrongdoing.  

Such an adverse inference from the court can have especially high stakes in the family court context. Because testimony given in family court may be used in a criminal proceeding, respondents in family court proceedings have an incentive not to testify if they have an ongoing case in criminal court or where a criminal investigation is pending. Family court respondents then find themselves in the “Catch 22” of deciding whether to take the adverse inference that may be drawn upon them in their family court case or to waive the privilege and potentially expose themselves to self-incriminatory testimony. A respondent in a family court proceeding may have to choose between two equally important liberty issues: their ability to see their child and their desire to avoid self-incrimination.  

We can better grasp this “Catch 22” by looking at how this may play out in a termination of parental rights hearing. In a termination of parental right hearing, a parent is fighting for their right to maintain any legal relationship with their child. In New York City, the state can move to terminate a parent’s legal rights to their child if the child has spent 15 of the past 22 months in foster care. Imagine the reason that the court has deemed a parent unfit to adequately care for their child, and thus placed the child in foster care, is because of allegations of prologued substance use. In such a case, a parent would want to do any and everything to maintain the possibility or reuniting with their child and thus would want to avoid the risk of an adverse inference for failing to testify. Yet, discussing their drug use and answering the court’s questions related to drug use might open the parent up to criminal liability, especially if there are any ongoing criminal charges related to their drug use. 

In such a case, the decision of whether to testify can have extremely important consequences. The failure to testify can support a court’s inference that the respondent is unfit as a parent. Meanwhile, choosing to testify might lead to criminal prosecution or statements that could be used to further the parent’s criminal trial, leading to jail time or penalties that could in turn, continue to impact the parent’s ability to reconnect with their child. It is a very difficult and tenuous line to walk between avoiding adverse testimony for a parent’s criminal proceeding and avoiding adverse inferences by remaining silent in the family court proceeding.  

What this means is that lawyers must be very intentional with how they approach clients with concurrent civil and criminal cases, especially where one such case involves an interest as important as a parent’s ability to maintain legal rights to their child. In particular, lawyers must let clients lead, ensuring that the client’s priorities are considered when weighing two incredibly important interests. If a client has a different family and criminal attorney, it is essential that lawyers communicate with each other to avoid accidentally hindering a client’s interests in another court proceeding. This means that lawyers should discuss all potential legal consequences of both testifying, and failing to testify, and let the client make the ultimate decision where two such liberty interests are at stake. 

Chloe Grill

Class of 2027, Staff Member