Can a Criminally Accused Person Invoke Their 5th Amendment Privilege Against Self-Incrimination?
Civil restraining orders are often filed concurrently with criminal charges or a criminal investigation. To protect against criminal liability the criminally accused may invoke their 5th amendment privilege against self-incrimination. It is well settled that the privilege against self-incrimination may be invoked in criminal or civil proceedings, but there is a difference in how the privilege is interpreted in civil and criminal hearings.
The 5th Amendment in Criminal Hearings Vs. Civil Hearings
In criminal hearings, the 5th amendment privilege allows for an absolute bar to being called as a witness, however, in the civil context the privilege does not protect against being called to testify. In civil cases, the criminally accused may be called as a witness and may only invoke the 5th amendment privilege to remain silent on incriminating topics. Consequently, in a civil restraining order hearing a witness will need to waive their 5th amendment privilege or accept the civil consequences.
California Code of Civil Procedure Section 527.6 states there is no mandatory right to a continuance, moreover, a continuance shall only be granted on a showing of good cause. There is a split in the California appellate courts as to whether an ongoing criminal case is a good cause to allow for a continuance. That said, most appellate decisions are in favor of not allowing continuances of civil restraining order hearings due to ongoing criminal proceedings.
As such, most appellate courts will uphold a trial court’s decision to deny a continuance based on the 5th amendment privilege against self-incrimination. This means that your lawyer will not likely be able to obtain a continuance of your restraining order matter because your criminal case is ongoing.
The right to refuse to testify is one that only you can make after consultation with your lawyer. There are many consequences to invoking this privilege in a criminal or civil court setting and you must speak to an attorney prior to invoking your 5th amendment right against self-incrimination.
Contact the experienced criminal defense attorneys at Wallin & Klarich Today
Our law firm has been helping answer people’s questions about the 5th amendment and self-incrimination for over 38 years. With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles, and San Diego, you can find an experienced Wallin & Klarich criminal defense attorney available near you no matter where you are located.
Contact our offices today at (877) 4-NO-JAIL or (714) 587-4279 for a free, no-obligation phone consultation. We will be there when you call.