Pleading the Fifth – the Right Against Self-Incrimination for Criminal and Civil Practitioners

Read this informative article written for lawyers written by Nick Michaud published in the bar journal Communiqué (Mar. 2024)

Special Feature: CLE Article #16*

By Nick Michaud, Esq.

“You have the right to remain silent. Anything you say can and will be used against you in court…”

The famous first words of the Miranda advisement now have long been part of the American psyche. For some, it is difficult to believe that this warning has only been law since Miranda v. Arizona was decided in 1966. Even so, these two sentences—together intoning the Fifth Amendment right against self-incrimination—echo throughout our society and resonate within legal and popular cultures.

The right against self-incrimination deserves this prominent place in our minds. The Fifth Amendment guarantee that “[n]o person […] shall be compelled in any criminal case to be a witness against himself” is one of the most widely applicable elements of the Bill of Rights for all attorneys, whether they believe that they practice criminal law or not.

I practice tax litigation. This means that I interact with agencies like the Internal Revenue Service on behalf of my clients. Previously, though, I spent nearly ten years as a felony prosecutor. I was honored to serve the public in that role, but this background was also beneficial in that it trained me to see the Fifth Amendment everywhere. The IRS, for instance, has the authority to turn a civil examination or audit into a criminal tax investigation at its discretion. Any attorney who interacts with a government agency with such powers must carefully consider the Fifth Amendment implications of their work. Indeed, all attorneys must be careful to address their clients’ risks of self-incrimination no matter who the opposing party may be.

This mindset is important even if (perhaps especially if) your client has not acted unlawfully. We must never forget that one of the primary functions of the Fifth Amendment is to “protect the innocent who otherwise might be ensnared by ambiguous circumstances.” Slochower v. Board of Higher Education, 350 U.S. 551, 557-558 (1957).

Attorneys must determine when to invoke Fifth Amendment protections and how to avoid waiver of those rights. These issues are fact-specific and turn upon the unique circumstances of any legal matter. This article aims to examine some of the Fifth Amendment considerations encountered by both criminal and civil practitioners, to help readers think critically about invocation, and to remind civil practitioners to always consider potential criminal exposure.

Invocation and waiver in criminal practice

The Fifth Amendment to the United States Constitution was ratified with the Bill of Rights in 1791. Acknowledging our grim history of coerced confessions, the guarantee that “[n]o person […] shall be compelled in any criminal case to be a witness against himself” is a foundational principle of U.S. law. Its applicability in Nevada is a result of its incorporation under the Fourteenth Amendment Due Process Clause and by Article 1, § 8 of the Nevada Constitution.

Custodial interrogation

The Fifth Amendment’s protections are never more essential than in the context of a police interrogation. The Miranda Court and countless others have recognized that in-custody interrogations are inherently coercive and that procedural safeguards are needed. Miranda v. Ariz., 384 U.S. 436, 444 (1966). These safeguards take the form of Miranda advisements: prior to interrogation, in-custody individuals must be informed of their Fifth Amendment rights to silence and of their Sixth Amendment rights to counsel. Statements obtained in violation of Miranda rights cannot be used in trial. Id.

In this context, early (or immediate) invocation is advisable in most situations barring exigent circumstances. A clear assertion of the privilege is necessary to preserve those rights and avoid waiver. Invocation also has the benefit of immediately ending the interrogation. Michigan v. Mosley, 423 U.S. 96, 103 (1975), Berghuis v. Thompkins, 560 U.S. 370, 381 (2010).

Invocation of the right against self-incrimination must be unequivocally made. Berghuis, 560 U.S. at 381. The right cannot be claimed by remaining silent in the face of questioning: to end an interrogation an accused must unambiguously state a desire to invoke. Id. When an individual’s statements are equivocal, law enforcement are not required to stop questioning. They will likely be required to ask clarifying questions, but they are not required to terminate the interrogation until an invocation is unmistakable. Id.

Attorneys should also beware the risk of waiver of the right to silence in this context. A valid waiver is made “voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444. An individual in custody may waive their invocation by affirmative statement, but they might also waive their Fifth Amendment rights through voluntary conduct—including dialogue with law enforcement—after a Miranda advisement has been made and the accused understood the rights he was waiving. See, e.g., North Carolina v. Butler, 441 U.S. 369, 373 (1979).

Invocation of Fifth Amendment rights in a custodial interrogation carries an additional protection: it generally may not be used against the accused in a criminal trial. A prosecutor is forbidden from commenting on silence in this context. Gaxiola v. State, 121 Nev. 638, 655 (2005). No negative inferences may be drawn from a criminal defendant’s decision to invoke his Fifth Amendment rights during a custodial interrogation.

In criminal court

The Fifth Amendment protections against self-incrimination also protect defendants and witnesses called to testify in criminal courts. “The core protection afforded by the Self-Incrimination Clause is a prohibition on compelling a criminal defendant to testify against himself at trial.” United States v. Patane, 542 U.S. 630, 637 (2004). Importantly, prosecutors and courts also may not comment on or draw inferences from a defendant’s decision not to testify. Id.

For witnesses, the privilege “extends not only ‘to answers that would in themselves support a conviction . . . [but] embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.’” Ohio v. Reiner, 532 U.S. 17, 20, citing Hoffman v. United States, 341 U.S. 479, 486-487 (1951). It covers witnesses who have reasonable cause “to apprehend danger from a direct answer,” as determined by the court. Id. Unlike a criminal defendant, a witness in a criminal case who wishes to invoke her Fifth Amendment rights must take the stand to do so in response to the specific questions that implicate the privilege.

Invocation in civil practice

How does the invocation of the Fifth Amendment right against self-incrimination differ in the context of a civil proceeding? Some of the differences are profound. Attorneys that discover a potential Fifth Amendment self-incrimination issue in the course of their civil practice must balance competing considerations to advise their clients without losing sight of litigation objectives.

Who may assert Fifth Amendment privileges in civil proceedings?

Any party that can demonstrate a non-speculative fear of prosecution should consider invoking their rights against self-incrimination. “The right to assert one’s privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution.” In re Master Key Litig., 507 F.2d 292, 293 (9th Cir. 1974) (citing Hoffman, 341 U.S. at 486-87). A party wishing to invoke need not be subject to ongoing investigation, nor must they demonstrate that law enforcement intends to bring charges. Id. Similarly, this privilege does not merely protect parties from coercion of directly inculpatory statements; it also extends to answers that “would furnish a link in the chain of evidence needed to prosecute the claimant” for a crime. Hoffman, 341 U.S. at 486.

What should civil practitioners keep in mind?

First: Understand your client’s potential criminal exposures. This is simple, and perhaps obvious, but it is imperative. An attorney cannot identify self-incrimination risks if he cannot identify potential criminal liabilities. Discuss this with your client and maintain familiarity with the relevant statutes.

Next: Consider the impact of negative inferences in litigation. Unlike criminal cases, Fifth Amendment privileges do not protect against negative inferences in civil proceedings. “The Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.” Baxter v. Palmigiano, 425 U.S. 308, 318. Your client’s silence can be used against him, a risk that must be considered carefully before asserting the privilege.

Also: Beware that abuse of the privilege will often backfire. A civil practitioner should avoid blanket assertions of the privilege and must avoid using the Fifth Amendment as both “sword and shield.” Doing so can draw the ire of the court and have disastrous effect.

An illustrative example of this risk comes to us from our own backyard: in Francis v. Wynn Las Vegas, LLC, 127 Nev. 657, the Supreme Court of Nevada affirmed the lower court’s decision to grant summary judgment for Wynn. This was done in large part because the appellant’s use of the privilege against self-incrimination was so overbroad that he could not produce a genuine issue of material fact. By pleading the Fifth to almost every deposition question, appellant’s conduct was so unreasonable that the court would not allow him to withdraw his invocation to reopen discovery. Take heed of this cautionary tale and assert the privilege only where absolutely necessary to protect your client from self-incrimination.

About the author

Nick Michaud, Esq. is an associate at Kaczmarek & Jojola PLLC, a Tax Litigation Firm with offices in Las Vegas and Scottsdale, Arizona. He practices tax litigation, helping clients navigate complex Federal tax issues. Prior to joining the firm, Nick spent nearly ten years as a prosecutor in Maricopa County, Arizona.

About the article

© 2024 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

This article was originally published in the Communiqué (Mar. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-mar-2024/.

*About the CCBA’s Article #16: “Pleading the Fifth – the Right Against Self-Incrimination for Criminal and Civil Practitioners” offers 1.0 general Continuing Legal Education (CLE) credit to Nevada lawyers who complete the test and order form per the offer described in the March 2024 issue of Communiqué. See pp. 22–27 of the print edition or PDF version (https://clarkcountybar.org/wp-content/uploads/2024/02/2024-3-Communique-Final-Web.pdf). The CCBA is an Accredited Provider with the NV CLE Board.

The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.

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