12.6.12 Fifth Amendment

The defendant may assert the Fifth Amendment privilege in a protective order hearing if there is a concurrent criminal prosecution. But his silence can be construed against him in a civil proceeding.1  And the existence of a pending criminal case does not constitute “good grounds” for a continuance.2  A petitioner’s constitutional right to a civil remedy prevails when weighed against a criminal defendant’s Fifth Amendment rights.3  So, it is not a violation of due process or the Fifth Amendment right against self-incrimination for a criminal defendant to have to defend a related civil proceeding.

Keep in mind that sometimes victims are wrongfully charged when poorly trained police respond to an incident of abuse. A common scenario in which this occurs is when the victim of abuse is trying to retrieve children from an abusive partner, and the police erroneously conclude your client is the aggressor or is not fearful because she has gone to his home. In cases like these, you may need to carefully consider any risks of client testimony. Although a finding in a protective order or hearing cannot be res judicata in a subsequent proceeding under La. R.S. 46:2134(E), any testimony given in civil court can be used against them in a criminal proceeding and for purposes of impeachment.

• 1See McCann v. McCann, 09-1341, pp. 7–8 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 395 (applying adverse inference in a DAAA proceeding); Miles v. La. Landscape, 97-118, p. 4 (La. App. 5 Cir. 6/30/97), 697 So. 2d 348, 351.
• 2Malmay v. Sentry Ins. Co., 550 So. 2d 366, 369 (La. App. 3 Cir. 1989).
• 3Id.; Green v. Champion Ins. Co., 577 So. 2d 249, 262 (La. App. 1 Cir. 1991); Barbee v. Pigott, 398 So. 2d 137, 138 (La. App. 3 Cir. 1981); Bank of Com. & Tr. Co. v. Prejean, 262 So. 2d 798, 799 (La. App. 3 Cir. 1972).