Anyone who has ever watched any television program that references criminal trials has heard of the Fifth Amendment Privilege against self-incrimination. However, the extent and protection of the Fifth Amendment is not quite as simple as television may lead you to believe.
At Ciyou & Dixon, P.C., we often encounter domestic cases (divorce or paternity) where there is also some sort of underlying criminal component. Either a party has been recently arrested for drugs or alcohol, or there is an allegation of abuse and/or neglect against one or both parents. Any pending criminal issues will further complicate the domestic issues.
Particularly on point here are CHINS (Children in Need of Services) cases. In a pending CHINS matter, a claim of abuse or neglect is often at issue. Making a statement or admission in a CHINS proceeding could implicate one in a criminal matter, and that information would be admissible in a subsequent criminal case.
Under the United States Constitution1, under the Fifth Amendment2 “Rights of Persons”, one included right is the right not to be compelled in any criminal case to be a witness against himself (emphasis added).
Similarly, in Indiana, under the Indiana Constitution, Article 1, Section 14 provides similar language.3 The language of the Indiana Constitution refers to “criminal prosecution” as opposed to “criminal case” noted in the United States Constitution.
So, now that the background of the right against self-incrimination is established, how does that apply in a domestic case? As noted above, both the United States and Indiana Constitutional language protect against self-incrimination in a criminal case. Generally, domestic cases are categorized as civil cases (there can be criminal components such as protective orders and the like, but generally, domestic cases are not criminal).
Civil cases do not share the protection against self-incrimination. Therefore, there is no civil Fifth Amendment right against self-incrimination. However, this does not mean one cannot assert same. For example, if it is believed by one party that the other is using drugs, the parent may be asked about drug use, and he or she can assert the Fifth Amendment.
When that Fifth Amendment is asserted though, it is unlike the criminal case. In criminal law, if the Fifth Amendment is asserted, the court cannot consider the assertion against the defendant. However, in civil law, if the Fifth Amendment Privilege is asserted and a question is not answered, the court may consider this and use that in evaluating the testimony and position of the party.
In an Indiana Court of Appeals case from 19854, the Court established that one’s refusal to testify in a civil case cannot be used in a subsequent criminal proceeding, but “does not prohibit the trier of fact from drawing adverse inferences from the refusal to testify”.
Therefore, the criminal privilege remains protected while the civil privilege is allowed but can be construed against the party. One is able to assert the Fifth Amendment Privilege in civil cases, but the Court is also free to draw negative inferences due to the privilege asserted.
There are many critical and difficult issues that accompany the Fifth Amendment, and a balance between civil and criminal cases is one. If there is a pending criminal issue in your domestic case, make your counsel aware so that you can discuss the nuances of the Fifth Amendment and how it can best be utilized (or not) in your case.
We hope you find this information useful in your education of the Fifth Amendment Privilege. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana. This blog post was written by Bryan L. Ciyou, Esq., and Jessica Keyes.
