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A Plaintiff Asserting the 5th Amendment Privilege Against Self-Incrimination May Obtain a Stay of a Related Civil Action

November 1, 2018 By Mark A. Kohl

In Heffington v. Moser Maryland’s Court of Special Appeals addressed a novel issue – under what circumstances is a trial court required to grant a stay to a civil litigant due to an assertion of the right against self-incrimination.  Generally, jurors in a civil action are permitted to take note of a litigant’s refusal to testify when that litigant asserts his Fifth Amendment right not to testify.  

Prior to the start of a civil defamation trial, the Plaintiff in Heffington indicated she would assert her right against self incrimination and argued she was entitled to a stay of her defamation case until after related criminal charges had been resolved.  She reasoned that as her testimony was essential to her claim, she should not be forced to choose between asserting a constitutional right and essentially losing her right to pursue a civil claim.  The Defendants argued, and the circuit court agreed, that it was unclear when the criminal charges would be resolved.  The court denied the requested stay and at trial, the Plaintiff presented no evidence and asserted her right not to testify.  Judgment was entered by the Court in the Defendants’ favor.

The Court of Special Appeals reversed, advising that Maryland courts are to balance the right of litigants accused of a crime to not incriminate themselves against the prejudice suffered by their opponents due to delay.  The Court noted that, unless real prejudice would arise from a stay, as distinguished from mere inconvenience the litigant should not be forced to choose “between her silence and her lawsuit”.