Monday, November 28, 2022

Civil Litigant Permitted to Assert Fifth Amendment Right Against Self-Incrimination in a Personal Injury Case

In the case of Whitcher v. Zimmerman, No. 2022-C-0339 (C.P. Leh. Co. Oct. 25, 2022 Varricchio, J.), the court issued a detailed Order denying a Plaintiff’s Motion to Compel and upholding a Defendant’s right to assert his Fifth Amendment privilege against self-incrimination.

According to the Order, this case involved a motor vehicle accident with possible allegations of driving under the influence. The Defendant driver had previously pled guilty to the charge of careless driving in connection with the accident.

The Plaintiff asserted that, as such, the Defendant driver could not face any further criminal charges.

In response, the Defendant driver asserted that it was certainly possible for him to face additional criminal charges related to the accident based upon any newly discovered or disclosed evidence that could come out during the course of discovery during this civil litigation matter.

In ruling on the Motion, the court noted that the statute governing when a subsequent prosecution is barred by a former prosecution for a different offense, contains certain exceptions.  One exception was when the offense of which the Defendant was formerly convicted or acquitted was a summary offense or a summary traffic offense.

Given this set of facts, the court applied the applicable standard of review and noted that it was not “perfectly clear” that the Defendant driver would not possibly face additional criminal charges related to the accident based upon his provision of information in discovery. 

As such, the court found that the Defendant driver’s assertion of the Fifth Amendment right against self-incrimination was reasonable. Therefore, the court denied the Plaintiff’s Motion to Compel the Defendant driver to respond to certain discovery requests.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Anthony Garand on

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