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Most non-lawyers today could probably tell you that you have protections under the United States and Massachusetts Constitutions against self-incrimination.  This is most often portrayed on television and in movies as a criminal defendant invoking his Fifth Amendment privilege by stating, “I plead the fifth!” just as it appears the prosecutor has the defendant backed into a metaphorical corner.  What is not often portrayed is the use of this Fifth Amendment privilege in a civil case, such as a contract dispute or a divorce.

Can the Fifth Amendment privilege be invoked in a civil context, such as a Massachusetts Divorce?  The short answer is, yes.   The witness who claims the privilege must show that he or she may face some authentic danger of self-incrimination by testifying.  The privilege is only available to natural individuals, which means that a corporation cannot utilize the privilege.  A witness who fails to assert the privilege prior to testifying about certain incriminating facts may also waive his or her right to invoke Fifth Amendment privilege protections, intentionally or unintentionally.

In a civil case, such as a divorce proceeding, the trier of fact may make a reasonable adverse inference from a party asserting his or her Fifth Amendment Privilege.  This differs from asserting the same privilege in a Criminal case, where no such inference may be made.  For example, it is still a crime in Massachusetts to commit adultery (although rarely prosecuted).  In a divorce case, one party may assert his or her Fifth Amendment Privilege to not testify about an affair with a third party.  It is possible the trier of fact (in this case, the judge) may make a reasonable adverse inference that the party who asserted his or her Fifth Amendment Privilege did in fact have an affair.