“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” True – you do have the right to remain silent and anything you say can and will be used against you. But what about the things you don’t say? Can your silence be used against you in a family case?

The United States Supreme Court and Texas Supreme Court agree that your silence can be used against you in a civil, family law case. This means that if you assert your 5th Amendment privilege in a civil case, the judge has the ability to make a negative inference against you in regards to that topic. For example, if you are asked at trial whether you use illicit drugs, you have the right to assert your Fifth Amendment privilege. The judge, however, can take your refusal to answer to mean that you do, in fact, use illicit drugs. As Justice Brandeis declared in United States v. Bilokumsky, speaking for a unanimous Court, “Silence is often evidence of the most persuasive character.” 263 U.S. 149 (1923).

The implications of the Fifth Amendment extend beyond trial testimony to the rules of discovery. The purpose of discovery is to allow the parties to obtain full knowledge of the facts and issue prior to trial and to prevent trial by ambush. West v. Solito, 563 S.W.2d 240, 243 (Tex. 1978); Gutierrez v. Dallas ISD, 729 S.W.2d 691, 693 (Tex. 1987). This principle applies to all discovery, including items subject to the Fifth Amendment privilege. A party may not “use the Fifth Amendment as a shield in discovery and a sword at trial, which would result in “trial by ambush.”” Alief Independent School Dist. v. Perry, 440 S.W.3d 228, 242 (Tex. App—Houston [14th Dist.]). In the Alief case, a party asserted his Fifth Amendment privilege against self-incrimination twice during discovery. He later decided he wanted to testify regarding these issues. He withdrew his privilege only eight days prior to trial. By waiting to waive his privilege until the eleventh hour, the opposing party effectively lost their ability to do any type of discovery on the issue. For that reason, the Court of Appeals agreed with the trial court’s decision to preclude that party from putting on evidence about the issues he asserted his Fifth Amendment privilege to.

This is not to say that if you assert your Fifth Amendment privilege it can never be waived. If you assert your Fifth Amendment privilege in discovery, but decide you ultimately want to testify about these issues at trial, you must timely withdraw your privilege and amend or supplement your discovery. Case law has not defined “timely,” however, Texas Rule of Civil Procedure 193.4(c) states that: “a party may not use—at any hearing or trial—material or information withheld from discovery under a claim of privilege, … without timely amending or supplementing the party’s response to that discovery.” To be safe, you should waive your privilege in advance of trial enough so that the other side has time to conduct discovery on the matter.

The purpose of these rules is to prevent trial by ambush and provide a constitutionally meaningful trial to all parties. Because pleading the Fifth in a family law case can carry hefty implications, it is important to speak with an attorney, who can help you navigate and decide which route is best for your case.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.