March 05, 2015 Articles

Is Silence Truly Golden?

The consequences of asserting the Fifth Amendment in bankruptcy proceedings.

By John R. Burns

Silence might be “golden,” but it will not always be in an individual’s best interest to remain silent in matters that are being adjudicated in civil court. Bankruptcy proceedings are not the most common situation where attorneys encounter witnesses exercising the Fifth Amendment privilege against self-incrimination, but it is wrong to assume that only defendants in criminal cases plead the Fifth. Despite the relatively small number of occurrences where a debtor decides to invoke the Fifth Amendment privilege against self-incrimination, bankruptcy practitioners and trustees should be aware of the consequences that might arise when a witness claims this privilege. Asserting the Fifth Amendment can significantly affect the outcome of the bankruptcy proceeding for both parties involved.

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