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A shield but not a sword

I reviewed two files yesterday in which one party to a custody dispute was refusing to answer questions by invoking her 5th Amendment privilege against self-incrimination while seeking affirmative relief from the family court.  In both instances, the opposing attorneys were accepting this 5th Amendment invocation without protest.  They could do more.

Both South Carolina and United States Supreme Court case law indicating that one cannot invoke the 5th Amendment privilege against self-incrimination in a civil case as a method of defeating or shifting the burden of proof.  The commonly used phrase is that the 5th Amendment is not both a sword and a shield.  For example, in U.S. v. Rylander, 460 U.S. 752 (1983), the United States Supreme Court held that a taxpayer’s invocation of his right against self-incrimination could not be used to shift the burden of producing tax records to the government, noting:

But while the assertion of the Fifth Amendment privilege against compulsory self-incrimination may be a valid ground upon which a witness such as Rylander declines to answer questions, it has never been thought to be in itself a substitute for evidence that would assist in meeting a burden of production. We think the view of the Court of Appeals would convert the privilege from the shield against compulsory self-incrimination which it was intended to be into a sword whereby a claimant asserting the privilege would be freed from adducing proof in support of a burden which would otherwise have been his. None of our cases support this view.

Id., at 758

See also, State v. Terry, 339 S.C. 352, 529 S.E.2d 274, 277 (2000) (one cannot “use his fifth amendment privilege against self-incrimination as both a sword and a shield.”).

Other states have struck a party’s divorce pleadings for refusing to answer questions based upon an invocation of the 5th Amendment.  See e.g., Stockham v. Stockham, 168 So.2d 320 (Fla. 1964); Sparks v. Sparks, 768 S.W.2d 563 (Mo.App. E.D. 1989).  In South Carolina “it is permissible for the fact finder to draw an adverse inference in a civil case against a party invoking the Fifth Amendment privilege against self-incrimination.” Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526, 532 (Ct.App. 1998) (family court properly found wife committed adultery and denied her alimony when she invoked her 5th Amendment right in refusing to answer questions on the topic).

In South Carolina family law cases the right against self-incrimination is most often invoked in the context of adultery.  Ironically, South Carolina’s oft-violated, rarely (never?)-prosecuted criminal prohibition on adultery (S.C. Code § 16-15-60) is mostly applied to shield adulterers from having to answer questions about their adulterous conduct.  It also allows family court litigants to avoid answering questions about illegal drug use or tax law violations.  However unless my client runs a real risk of criminal prosecution, I counsel against invoking the 5th Amendment privilege.  Not only is an adverse inference almost certain to be drawn from that invocation but if the invocation prevents inquiry into important factual disputes, my client risks his or her pleading being struck.

One should not passively accept an opposing party’s invocation of the 5th Amendment right against self-incrimination.  Rather one should seek an adverse inference finding for such invocation and move to strike the other party’s pleading unless they renounce the privilege and answer the questions.

It is inequitable for a party to pursue affirmative relief but then be allowed to refuse to provide information that might undermine or defeat that request for relief.  Do not allow opposing parties to use their 5th Amendment silence as both a sword and a shield.

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