Legal Memorandum: Privilege against Self-incrimination

Issue: What consequences must a plaintiff bear for asserting his or her Fifth Amendment privilege against self-incrimination?

In Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084 (5^th Cir. 1979), the plaintiff brought a libel action against CBS claiming that a broadcast appearing on the CBS Evening News stating that he had defrauded students and the federal government out of student loan aid was untrue.  Prior to the broadcast, Wehling had appeared before by a grand jury investigating his handling of the funds, but declined to answer questions under the Fifth Amendment.  Later, when CBS sought to depose Wehling in the civil action about his handling of student loan aid in order to prove the truth of its broadcast, Wehling similarly refused to respond on the grounds that his testimony could be self-incriminating.  The federal court ordered Wehling to answer deposition questions and ultimately dismissed his suit when he refused to comply.

On appeal, after first acknowledging Wehling’s right to invoke the Fifth Amendment, the Fifth Circuit stated:

The question here, however, is not whether Wehling had a right to invoke the constitutional privilege against self-incrimination, which he did, but what effect the assertion of this privilege would have on his libel action against CBS.

Id. at 1087. 

Plaintiffs are free to assert their Fifth Amendment privilege in a matter, but, if they do so, they do not have an absolute right to prosecute their case under the shield of the Fifth Amendment.  The Wehling court continued:

We do not dispute CBS’s assertion that it would […]

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