4 ms·

Note that while a negative inference may not be drawn from the invocation of one's fifth amendment rights in a criminal case, in a civil case a negative inferen

Note that while a negative inference may not be drawn from the invocation of one's fifth amendment rights in a criminal case, in a civil case a negative inference can be drawn. http://www.litigationandtrial.com/2013/04/articles/attorney/pleading-the-fifth-adverse-inferences/ http://www.litigationandtrial.com/2013/04/articles/attorney/...

joshuahaglund 10y ago
seems that depends on the state https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/30/what-happens-if-you-take-the-fifth-in-a-civil-case-an-important-california-law-correction/?tid=a_inl&utm_term=.ae1862b2dca9 https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
- tyingq 10y ago
  Jurisdiction appears to be Federal for this case.
- bradleyjg 10y ago
  According to that link federal courts defer to state law rules on the issue for causes of action that sound in state law but not for those that are grounded in federal law. Google's complaint (https://drive.google.com/file/d/0B7dzPLynxaXuQjY3dkllZ2ZKb0k/view https://drive.google.com/file/d/0B7dzPLynxaXuQjY3dkllZ2ZKb0k...) has two CA claims and four federal ones. The main trade secret claims are one of each. Again, according to that link, if evidence is relevant to both federal and state claims, the federal rule controls. So in this case I expect the federal negative inference rule to prevail.
protomyth 10y ago
That being said, if your lawyer says invoke your 5th then you do it or be prepared to hire a different lawyer. Your innocence is not a factor. [edit: reading this, I'm not sure his lawyer told him to do it, quite the opposite actually]
- pmh 10y ago
  >[edit: reading this, I'm not sure his lawyer told him to do it, quite the opposite actually] I didn't see anything in the article suggesting that, just that Uber's lawyers said they wanted him to release the information [edited for accuracy given child comment, thanks late2part]
  - late2part 10y ago
    No, Uber's lawyers said they wanted him to release the information. Very different from what you said.
BearGoesChirp 10y ago
>Note that while a negative inference may not be drawn from the invocation of one's fifth amendment rights in a criminal case This feels about as productive as telling someone to not think of an elephant. Regardless of what the jury has been told, they will still see a refusal to answer a question, and they will take that into account. The only way this would be possible if the jury never heard the question nor the invocation of the fifth.
- bradleyjg 10y ago
  > The only way this would be possible if the jury never heard the question nor the invocation of the fifth. That's almost always what happens. The big exception is if the defendant opts for a bench trial.

joshuahaglund 10y ago

seems that depends on the state https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/30/what-happens-if-you-take-the-fifth-in-a-civil-case-an-important-california-law-correction/?tid=a_inl&utm_term=.ae1862b2dca9 https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

tyingq 10y ago
Jurisdiction appears to be Federal for this case.
bradleyjg 10y ago
According to that link federal courts defer to state law rules on the issue for causes of action that sound in state law but not for those that are grounded in federal law. Google's complaint (https://drive.google.com/file/d/0B7dzPLynxaXuQjY3dkllZ2ZKb0k/view https://drive.google.com/file/d/0B7dzPLynxaXuQjY3dkllZ2ZKb0k...) has two CA claims and four federal ones. The main trade secret claims are one of each. Again, according to that link, if evidence is relevant to both federal and state claims, the federal rule controls. So in this case I expect the federal negative inference rule to prevail.

protomyth 10y ago

That being said, if your lawyer says invoke your 5th then you do it or be prepared to hire a different lawyer. Your innocence is not a factor. [edit: reading this, I'm not sure his lawyer told him to do it, quite the opposite actually]

pmh 10y ago
>[edit: reading this, I'm not sure his lawyer told him to do it, quite the opposite actually] I didn't see anything in the article suggesting that, just that Uber's lawyers said they wanted him to release the information [edited for accuracy given child comment, thanks late2part]
- late2part 10y ago
  No, Uber's lawyers said they wanted him to release the information. Very different from what you said.

BearGoesChirp 10y ago

>Note that while a negative inference may not be drawn from the invocation of one's fifth amendment rights in a criminal case This feels about as productive as telling someone to not think of an elephant. Regardless of what the jury has been told, they will still see a refusal to answer a question, and they will take that into account. The only way this would be possible if the jury never heard the question nor the invocation of the fifth.

bradleyjg 10y ago
> The only way this would be possible if the jury never heard the question nor the invocation of the fifth. That's almost always what happens. The big exception is if the defendant opts for a bench trial.