"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.” (Baxter v. Palmigiano (1976) 425 U.S. 308, 318.)
Under Baxter, an opposing party can’t simply point to the silence and claim victory in their civil case. A court is entitled to draw adverse inferences against the party who “pleads the Fifth.” As Justice Brandeis said, “Silence is often evidence of the most persuasive character.” (United States ex rel. Bilokumsky v. Tod (1923) 263 U.S. 149, 153-154.)
The courts of California have held the same. A party claiming a privilege to avoid disclosing facts essential to a claim or defense may be barred from asserting that claim or defense at trial. (Steiny & Co., Inc. v. California Elec. Supply Co. (2000) 79 Cal.App.4th 285, 292, 93 – by invoking trade secrets privilege to avoid disclosing proprietary information relevant to its damage calculations, plaintiff was barred from proceeding with damages claims; Fremont Indem. Co. v. Sup.Ct. (Sharif) (1982) 137 Cal.App.3d 554, 560, – court could order dismissal of suit against fire insurance company where plaintiff invoked 5th Amendment privilege to preclude questioning as to whether he committed arson and started the fire.)
Whereas the privilege may be invoked by a civil litigant. (Segretti v. State Bar (1976) 15 Cal.3d 878, 126 Cal.Rptr. 793; Alvarez v. Sanchez (1984) 158 Cal.App.3d 709.) It does not provide for protection against civil penalties, and in a civil case, a witness or party may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it. (Blackburn v. Superior Court, (1993) 21 Cal.App.4th 414.)"
Bonus, any “adverse inferences” would be made by the judge in this case because Trump’s lawyers failed to file the paperwork for a jury trial. DOH! And he’s shown little patience for Trump’s bullshit.
Important to note, you CAN plead the 5th in a civil trial, but it has a different meaning civilly than criminally.
In a criminal trial, pleading the 5th cannot be used against you. It’s your right to say nothing.
In a CIVIL trial:
https://www.advocatemagazine.com/article/2016-october/pleading-the-fifth-in-civil-cases
"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.” (Baxter v. Palmigiano (1976) 425 U.S. 308, 318.)
Under Baxter, an opposing party can’t simply point to the silence and claim victory in their civil case. A court is entitled to draw adverse inferences against the party who “pleads the Fifth.” As Justice Brandeis said, “Silence is often evidence of the most persuasive character.” (United States ex rel. Bilokumsky v. Tod (1923) 263 U.S. 149, 153-154.)
The courts of California have held the same. A party claiming a privilege to avoid disclosing facts essential to a claim or defense may be barred from asserting that claim or defense at trial. (Steiny & Co., Inc. v. California Elec. Supply Co. (2000) 79 Cal.App.4th 285, 292, 93 – by invoking trade secrets privilege to avoid disclosing proprietary information relevant to its damage calculations, plaintiff was barred from proceeding with damages claims; Fremont Indem. Co. v. Sup.Ct. (Sharif) (1982) 137 Cal.App.3d 554, 560, – court could order dismissal of suit against fire insurance company where plaintiff invoked 5th Amendment privilege to preclude questioning as to whether he committed arson and started the fire.)
Whereas the privilege may be invoked by a civil litigant. (Segretti v. State Bar (1976) 15 Cal.3d 878, 126 Cal.Rptr. 793; Alvarez v. Sanchez (1984) 158 Cal.App.3d 709.) It does not provide for protection against civil penalties, and in a civil case, a witness or party may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it. (Blackburn v. Superior Court, (1993) 21 Cal.App.4th 414.)"
Bonus, any “adverse inferences” would be made by the judge in this case because Trump’s lawyers failed to file the paperwork for a jury trial. DOH! And he’s shown little patience for Trump’s bullshit.