“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.