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this post was submitted on 02 Oct 2023
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It is also possible to plead the fifth as a defendant in a civil trial, however, a jury (or the judge, in this case) can make "adverse inferences" from that in civil court.
In a criminal case, a defendant who takes the stand has waived their fifth amendment rights. That's why you don't hear defendants on the stand in court saying "Fifth, fifth, fifth." A defendant retains their fifth amendment rights in a criminal trial by refusing to take the stand - as is their right.
What I'm not sure of is whether that also applies in a civil case. Unlike in a criminal trial, in civil court, the plaintiff can call the defendant to the stand. I don't know if that obliges the defendant to take the stand or not. Also, in civil court, a defendant can only plead the fifth if answering the question could implicate them in criminal matters. The civil matter at hand, all by itself, cannot be "fifthed out of;" if a defendant is on the stand, they must answer questions in relation to the case, again, so long as the answers could not implicate them in crimes.
We know that Trump is on the plaintiff's witness list. If plaintiff calls Trump to the stand in his civil case, is he obliged to go on the stand? I think he is, because fifth amendment protections do not extend to civil litigation. Then he could plead the fifth if the answer to the specific question posed implicates him in a crime. If that happens, there would surely be a motion from plaintiff's attorneys for the court to rule on whether fifth amendment protections extend to that question.
But this is a bench trial, where the judge is going to decide the outcome of the case. It would be completely reasonable for the defense to want a different judge to make that fifth amendment call; having the current bench learn about the potential answers to the question of fifth amendment protection would obviously tend to influence the very same bench who is responsible for deciding the case.
I have no idea what's going to come of all this.