{"id":400,"date":"2026-02-02T00:07:53","date_gmt":"2026-02-02T00:07:53","guid":{"rendered":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/?p=400"},"modified":"2026-02-02T00:07:53","modified_gmt":"2026-02-02T00:07:53","slug":"the-impact-of-adverse-inferences-drawn-from-a-partys-failure-to-testify-in-civil-proceedings","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/2026\/02\/the-impact-of-adverse-inferences-drawn-from-a-partys-failure-to-testify-in-civil-proceedings\/","title":{"rendered":"The Impact of Adverse Inferences Drawn from a Party’s Failure to Testify in Civil Proceedings"},"content":{"rendered":"\n

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<\/a>, which states that \u201c[n]o person\u2026 shall be compelled in any criminal case to be a witness against himself.\u201d In criminal cases, this means that not only can a defendant refuse to testify, but the jury may not consider the defendant\u2019s failure to testify as evidence of guilt, ensuring no criminal defendant is \u201cworse off<\/a>\u201d by asserting their Fifth Amendment right.  <\/p>\n\n\n\n

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\u2019s answer would merely<\/a> \u201cfurnish a link in the chain of evidence needed to prosecute the witness for a criminal offense.\u201d This means that the Fifth Amendment can only be invoked<\/a> 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.  <\/p>\n\n\n\n

What is perhaps even more surprising is that \u201cthe Fifth Amendment does not forbid<\/a> adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.\u201d Thus, pleading the Fifth in a civil case allows the judge or jury to infer the defendant\u2019s refusal to testify as an admission of wrongdoing<\/a>.  <\/p>\n\n\n\n

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<\/a> if they have an ongoing case in criminal court or where a criminal investigation is pending. Family court respondents then find themselves in the \u201cCatch 22\u201d 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<\/a>: their ability to see their child and their desire to avoid self-incrimination.  <\/p>\n\n\n\n

We can better grasp this \u201cCatch 22\u201d 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 <\/em>legal relationship with their child. In New York City, the state can move to terminate a parent\u2019s legal rights to their child if the child has spent 15 of the past 22 months<\/a> 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\u2019s 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. <\/p>\n\n\n\n

In such a case, the decision of whether to testify can have extremely important consequences. The failure to testify can support a court\u2019s 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\u2019s criminal trial, leading to jail time or penalties that could in turn, continue to impact the parent\u2019s ability to reconnect with their child. It is a very difficult and tenuous line to walk between avoiding adverse testimony for a parent\u2019s criminal proceeding and avoiding adverse inferences by remaining silent in the family court proceeding.  <\/p>\n\n\n\n

What\u00a0this means is that lawyers must be very intentional with how they approach clients\u00a0with concurrent civil and criminal cases, especially where one such case involves an interest as important as a parent\u2019s ability to\u00a0maintain\u00a0legal rights to their child.\u00a0In particular, lawyers\u00a0must let clients lead, ensuring that the client\u2019s priorities are considered when weighing two incredibly important interests.\u00a0If a client has a different family and criminal attorney,\u00a0it is\u00a0essential that lawyers communicate with each other to avoid accidentally hindering a client\u2019s interests in another court proceeding.\u00a0This means that lawyers should discuss all potential legal consequences of both\u00a0testifying,\u00a0and\u00a0failing to testify, and let the\u00a0client\u00a0<\/em>make the ultimate decision where two such liberty interests are at stake.\u00a0<\/p>\n\n\n\n

<\/p>\n\n\n\n

Chloe Grill<\/strong><\/p>\n\n\n\n

Class of 2027, Staff Member\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u201c[n]o person\u2026 shall be compelled in any criminal case to be a witness against …<\/a><\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[9],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/posts\/400"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/comments?post=400"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/posts\/400\/revisions"}],"predecessor-version":[{"id":401,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/posts\/400\/revisions\/401"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/media?parent=400"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/categories?post=400"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/tags?post=400"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}