The Right to Remain Silent?

Nicholas Walsh, PA

Any schoolchild who watches television knows that a criminal defendant has the right to remain silent. The Fifth Amendment to the U.S. Constitution says no person “shall be compelled in any criminal case to be a witness against himself”, and for two hundred years that clause has been held to mean that no judge or jury is permitted to infer, from the silence of the accused at any point in the criminal process, that the accused is guilty. This is true even though we all know, as the United States Supreme Court once observed, that “Silence is often evidence of the most persuasive character.”

But the Fifth Amendment addresses only criminal defendants. What about persons accused of very serious civil violations, say molesting lobster gear, with its mandatory three-year license suspension? Do Fifth Amendment protections apply then?

A little background. If you are a defendant in a civil lawsuit, whether it was brought by your ex-wife or by the State of Maine, if you decide not to take the witness stand that silence can be used against you. If your ex-wife, for example, puts up evidence tending to prove that you looted the joint bank account, and you don’t take the stand to deny it, the jury and the judge are permitted (but not required) to infer from your silence that you’ve got something to hide. Your ex’s lawyer can comment on your silence in closing argument, and the judge is likely to instruct the jury that it can use the inference if it wants to. That’s devastating stuff, but it’s the law, it’s not likely to change, and probably it shouldn’t change.

Understand that whether the proceeding is criminal or civil, the Fifth Amendment privilege not to testify exists. It’s just that in a criminal proceeding the judge will instruct the jury that your decision not to testify cannot be used against you. (Whether the jury obeys the judge’s instruction is another matter entirely.)

It doesn’t matter, by the way, that while your ex-wife is suing you for the money back, the Attorney General’s Office is sitting in the courtroom taking notes for your criminal indictment for the same activity. The fact that testifying about your activity could lead to a criminal prosecution does not change the fact that in the civil action your decision not to testify can be held against you. And to make matters worse, if you do decide to take the stand in the civil case, your testimony can be held to be your waiver of the right to remain silent (as to the exact matter you already testified to) in a later criminal proceeding, and you can be compelled to testify in that criminal action. It’s a stacked deck!

But suppose the civil case is administrative brought by an agency, and while strictly speaking the case is civil and not criminal, the consequences of a finding of liability (civil “guilt”) are terribly serious, such as losing a lobster license for three years. Should the Fifth Amendment apply to those cases?

Arguably so, but in 1924 the Supreme Court said it doesn’t, and that’s the law and likely to remain the law. If you are before a DMR hearing officer on a trap molestation charge, and decide not to testify, the hearing officer is permitted, but not required, to infer from your decision that your truthful testimony could only harm your case. There are other examples in other professions, for example a disciplinary board hearing for a doctor or lawyer charged with having a sexual relationship with a patient or client. A finding of liability could result in loss of a valuable livelihood, yet Fifth Amendment protections do not apply, even though depending on the facts the matter could result in a criminal indictment, and even though the accused’s attempt to explain the sexual behavior may assist the fact finders.

All a person, or a lawyer representing that person, can do is argue to the hearing officer that the sanction for a finding of liability is so great in a given instance that the hearing officer should heed the spirit if not the law of the Fifth Amendment, and not make any inference from the accused’s decision not to testify. Remember, the fact finder is permitted but not required to make the inference. Particularly if the evidence against the person is slim, and the punishment serious, I believe the hearing officer should elect not to use the accused’s silence to tip the scales toward a finding of guilty.

Nicholas Walsh is an attorney practicing in Portland. He may be reached at (207) 772-2191, or at nwalsh@gwi.net.