The Fifth Amendment: You Have the Right to Remain Silent, but Should You?

*Hannah Krehely

I. Introduction

In August 2022, former President Donald Trump took full advantage of his Fifth Amendment right to remain silent in a deposition with the New York State Attorney General.[1] The deposition was part of a civil investigation into whether Trump and the Trump Organization fraudulently misrepresented the value of its properties to lenders.[2] The investigation has spanned three years, but Trump’s deposition may prove to be a pivotal moment in the case to come. Trump reportedly invoked the Fifth Amendment over four hundred times during his deposition, refusing to answer any of the Attorney General’s questions to avoid the risk of self-incrimination.[3]

The Fifth Amendment provides that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself.”[4] However, the right to remain silent does not necessarily guarantee that your silence will not be used against you in a future court proceeding.[5] By invoking the Fifth Amendment in his August deposition, Trump may face an adverse inference instruction if the case against him ever goes to trial.[6] An adverse interference instruction is known for its applicability in discovery matters where a party has failed to preserve electronic evidence in “anticipation or conduct of litigation.”[7] If such a failure occurs, the court may instruct the jury to “presume that the lost information was unfavorable to the party.”[8]

II. The Complicated History of the Fifth Amendment

While the U.S. Constitution does not explicitly provide the right to remain silent, courts have long held that the Fifth Amendment provides this right to criminal defendants.[9] In more recent years, the Supreme Court has guaranteed criminal defendants the right to remain silent “unless [they] choose[] to speak in the unfettered exercise of [their] own will.”[10] The Court notably expanded on this idea in Miranda v. Arizona, holding that the “knowing and intelligent waiver” of one’s right against self-incrimination cannot be assumed “on a silent record.”[11] The Supreme Court has also held that civil defendants are entitled to this right, stating that the privilege is “not ordinarily dependent upon the nature of the proceeding.”[12]

III. The No-Adverse-Inference Instruction

A defendant may be entitled to remain silent according to the Fifth Amendment, but this means little if a jury is allowed to use that silence as evidence of the defendant’s guilt.[13] Criminal defendants often move for a “no-adverse-inference” instruction when they choose not to testify at trial.[14] This instruction prohibits a jury from drawing an adverse inference from the defendant’s decision not to testify.[15] Unfortunately for criminal and civil defendants, there is no guarantee that a defendant’s decision to remain silent will come without consequence.[16] For example, a defendant’s decision to “plead the Fifth” could be brought to a jury later in the case or used in sentencing.[17] Additionally, invoking the Fifth Amendment may also be used to impeach the defendant, even though it is not considered determinative of guilt.[18] Recently, the Supreme Court declined to hold that a criminal defendant was entitled to a jury instruction that prohibited the jury from using the invocation of the defendant’s Fifth Amendment right during the penalty phase of his trial.[19] Although Justice Breyer dissented, stating that the Court was expressly going against the general rules established by prior cases,[20] the majority felt that it was “not uncommon for a constitutional rule to apply somewhat differently at the penalty phase than it does at the guilt phase.”[21]

IV. Adverse Consequences in Civil Cases

A. Implications for All Defendants

While the water seems muddied in criminal cases, civil defendants face even tougher odds when exercising their Fifth Amendment rights, as they are more likely to face an adverse inference jury instruction. In Baxter v. Palmigiano, the Supreme Court recognized “the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”[22] A different treatment of the Fifth Amendment may be warranted in civil cases where the stakes are not as high as in criminal cases, as a civil defendant does not face the risk of prison or death.[23]

However, in a civil case, the plaintiff is not motivated by the desire to convict the defendant. Instead, a settlement may be considered a favorable ending.[24] Because of this, courts have been willing to allow adverse inferences when a defendant invokes the Fifth Amendment so long as some probative evidence otherwise exists and outweighs the danger of prejudice or misleading the jury.[25] A lack of federal guidance on this issue means that lower courts are left to decide the weight assigned to a defendant’s decision to remain silent,[26] resulting in variations in the strength of the adverse inference instruction, as well as a general expansion of its use.[27]

B. Implications for Former President Trump

Through Trump’s exercise of his privilege against self-incrimination in his August deposition, he likely saved himself from the risk of self-incrimination. This risk is especially heightened for Trump as he faces a criminal investigation into similar matters.[28] However, if the civil investigation against Trump reaches the courtroom, the trial court will have the discretion to weigh the evidence against him and the significance of his silence.[29] If found to be significant enough, the prosecutor may have the opportunity to instruct the jury to infer that Trump’s silence was intended to hide information that was “unfavorable” to Trump and his case.[30] The “weight” given to the adverse inference instruction will be left to the court to decide.[31]

V. Conclusion

In both civil and criminal cases, defendants are entitled to exercise their Fifth Amendment right to remain silent to avoid self-incrimination.[32] However, in civil cases especially, courts have modified this right by allowing a jury to infer that the defendant chose to remain silent rather than provide a self-incriminating answer.[33] Trump must contend with the possibility of receiving an adverse inference instruction and prepare for its repercussions as the case against him continues through the New York legal system.

*Hannah Krehely is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for the Law Review and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society, a Legal Writing Fellow, a member of the National Moot Court Team, a research assistant for Professor Robert Lande, and a teaching assistant for Professor Jaros’s ILS/Criminal Law class. Prior to law school, Hannah spent two years working as a Senior Judiciary Clerk in the Anne Arundel County Circuit Court. In summer 2022, Hannah worked as a judicial intern for the Honorable Judge Laura S. Ripken on the Maryland Court of Special Appeals.


[1] Jonah Bromwich et al., Trump Invokes Fifth Amendment, Attacking Legal System as Troubles Mount, N.Y. Times (Aug. 10, 2022), https://www.nytimes.com/2022/08/10/nyregion/trump-james-deposition-fifth-amendment.html [hereinafter Trump Invokes Fifth Amendment].

[2] Jonah Bromwich et al., Hyperbole or Fraud? The Question at the Heart of Trump Investigation, N.Y. Times (Jan. 19, 2022), https://www.nytimes.com/2022/01/19/nyregion/trump-investigation-letitia-james.html.

[3] Trump Invokes Fifth Amendment, supra note 1.

[4] U.S. Const. amend. V.

[5] See Baxter v. Palmigiano, 425 U.S. 308, 318–19 (1976).

[6] See 6 Moore’s Federal Practice – Civil § 26.51 (2022).

[7] Fed. R. Civ. P. 37 (e).

[8] Id.

[9] See, e.g., Ullmann v. United States, 350 U.S. 422, 428 (1956).

[10] Malloy v. Hogan, 378 U.S. 1, 8 (1964).

[11] Miranda v. Arizona, 384 U.S. 436, 498–99 (1966).

[12] McCarthy v. Arndstein, 266 U.S. 34, 40 (1924).

[13] Cameron Oakley, You Might Have the Right to Remain Silent: An Erosion of the Fifth Amendment with the Use of Pre-Arrest Silence, 49 Creighton L. Rev. 589, 622 (2016).

[14] See White v. Woodall, 572 U.S. 415, 418 (2014).

[15] See id.

[16] See id. at 420–21.

[17] See id.; see also State v. Carr, 314 Kan. 615, 688–89 (2022) (“Whether the Fifth Amendment to the United States Constitution compels a district court to provide a requested no-adverse-inference instruction during the penalty phase of a capital trial remains an open question that the United States Supreme Court has yet to resolve.”).

[18] David S. Romantz, “You Have the Right to Remain Silent”: A Case for the Use of Silence as Substantive Proof of the Criminal Defendant’s Guilt, 38 Ind. L. Rev. 1, 23 (2005).

[19] White, 572 U.S. at 427.

[20] Id. at 428 (2014) (Breyer, J., dissenting)

[21] Id. at 421.

[22] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

[23] Id. at 318–19.

[24] Id.

[25] Fed. R. Evid. 403.

[26] Dennis J. Bartlett, Adverse Inferences Based on Non-Party Invocations: The Real Magic Trick in Fifth Amendment Civil Cases, 60 Notre Dame L. Rev., 370, 379 (1985).

[27] Id.

[28] Jonah Bromwich, Manhattan D.A. Leaves Office With One Big Case Up in the Air, N.Y. Times (Dec. 30, 2021), https://www.nytimes.com/2021/12/30/nyregion/cy-vance-trump-investigation.html.

[29] See Brink’s, Inc. v. New York, 717 F.2d 700, 710 (2d Cir. 1983).

[30] See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

[31] Bartlett, supra note 26.

[32] McCarthy v. Arndstein, 266 U.S. 34, 40 (1924).

[33] See Baxter, 425 U.S. at 318.

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