Can you plead the 5th in a civil case? There seems to be the idea that the right not to self-incriminate does not apply to civil cases. Is that true?
Yes, One Can In the United States, one may assert the Fifth Amendment privilege not to testify or otherwise give information that might tend to implicate the speaker in a crime. This is true in any court proceeding, civil or criminal, whether the person asserting the privilege is an accused, a witness, or a party to a civil case. It may be asserted in a Grand Jury or trial proceeding. One may also assert the privilege under police interrogation, or in an administrative proceeding. One may also assert it when testifying before Congress, a state legislature, or any local legislative body. One may also assert it when testifying before a government agency, such as the Interstate Commerce Commission. Asserting the privilege is often informally called &quot;pleading the Fifth&quot;, although strictly speaking &quot;pleading&quot; is something that only an accused does (as in &quot;I plead not guilty&quot;). The availability of the privilege in civil cases has been true at least since the Saline Bank case of 1828 (see below). The privilege is not available when no criminal prosecution is legally possible, such as when the statute of limitations has expired, or when the law invoked has been held unconstitutional or otherwise invalid, and no other valid law applies. Thus, if an authorized government official (usually a prosecutor) offers a grant of immunity, the privilege is no longer available on matters covered by the grant, and the person asserting it must then testify on such matters. The privilege may be asserted when the person doing so is actually guilty, or when the person is not guilty, but has a reasonable belief that the statements asked for might be used against the speaker in some current or future criminal proceeding. A person who has been tried for a crime nut had the case end in a mistrial, or a dismissal without prejudice, could still be re-tried for that accusation, and so may assert the privilege. Any assertion must be clear, but need not use a specific form of worfs. The standard form advised by many lawyers is I decline to answer on the grounds that the answer might tend to incriminate me. but less formal wording such as 'I take the Fifth&quot; will also serve to assert the privilege. When the privilege is asserted in a court case, the Judge may question the person asserting it in private, off the record, to determine whether the fear of incrimination is reasonable. Case Law Saline Bank (1828) In the case of United States v. Saline Bank of Virginia, 26 U.S. 100 (1828) Chief Justice Marshall wrote: It is apparent that, in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. [This case was cited in Murphy, below] Saline Bank was a civil suit by the US treasury in Federal curt against an apparently unincorporated bank, but a Virginia state law of the time made it a crime to operate or participate in a bank without a proper charter. Thus the Marshall Court held that a witness in a civil suit could assert the privilege against the future possibility of a state criminal proceeding. Kastigar (1972) In Kastigar v. United States, 406 U.S. 441 (1972) the US Supreme Court wrote (footnotes omitted): It [the privilege against self-incrimination] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege [Citing the Miranda case in a footnote]. (Kastigar was a case in which people subpoenaed before a Grand Jury asserted the privilege, were granted immunity, and still refused to testify, alleging that the grant of immunity was not enough to revoke the privialge. They were held in contempt, appealed, and the Court held that the immunity was sufficient to allow the witnesses to be compelled to testify. In the court of its opinion, the Kastigar Court reviewed the history of the privilege and of immunity statutes in some detail.) Murphy (1964) In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) the US Supreme Court wrote: We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1. ... Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminated them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. [Footnote 2] Notwithstanding this grant of immunity, they still refused to respond to the questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. [This case was cited in Kastigar above.] McCarthy v. Arndstein (1924) In McCarthy v. Arndstein, 266 U.S. 34 (1924) (footnotes omitted, boldface added) The US Supreme Court wrote: The case is now before us on rehearing, granted in order to permit argument of the proposition, not presented by counsel before, that the privilege against self-incrimination does not extend to an examination of the bankrupt made for the purpose of obtaining possession of property belonging to his estate. ... The contention now is that the privilege against self-incrimination ought to have been disallowed because, under the Constitution, it does not extend to the examination of a bankrupt in a bankruptcy proceeding. The government insists broadly that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects likewise the owner of goods which may be forfeited in a penal proceeding. See Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 563-564. The government urges more strongly a narrower contention. It claims that the constitutional privilege does not relieve a bankrupt from the duty to give information which is sought for the purpose of discovering his estate. It asserts that, in England, such an exception to the common law privilege prevails, and that the exception had been established there prior to the Declaration of Independence. Whatever may be the rule in England, it is clear that, in America, the constitutional prohibition of compulsory self-incrimination has not been so limited.
It is the job of the judge to instruct the jury about the law. If Texas had pattern instructions I'd look up what the instruction is for this matter, but you don't, so I don't know what the judge would say. But it is the judge's sole prerogative to instruct the jury in the law. If the question is a "commitment question", then it is an improper question and should be disallowed, see Stendefer v. State. The question "Would you presume someone guilty if he or she refused a breath test on their refusal alone?" is such a commitment question, and is disallowed. Similarly, "If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that" (Atkins v. State, 951 S.W.2d 787). An improper commitment question could be of the type "could you refrain...": Let us assume that you are considering in the penalty phase of any capital murder case, okay? And some of the evidence that has come in shows that the victim's family was greatly impacted and terribly grieved and greatly harmed by the facts․Can you assure us that the knowledge of those facts would not prevent you or substantially impair you in considering a life sentence in such a case (Penry v. State, 903 S.W.2d 715). One way in which a commitment question can be legal is if it asks basically "can you uphold the law?", for example "can you consider probation in a murder case?", or "are you willing to consider mitigating circumstances". The wrong answer to those questions will lead to a for-cause dismissal. The third question is flagrantly improper, the first is rather improper, and the second probably is. If the question can be framed in terms of a candidate's willingness to follow the law, then it should be legal.
There are cases out there like Unnamed Petitioners v. Connors, State v. Unnamed Defendant, Williams v. Unnamed Defendant; there have been indictments of John Doe who was only identified via a DNA profile. Not knowing the actual name of a person wouldn't pose a problem per se, and it seems that when the name is not known, John or Jane Doe is generally filled in. There was in instance a year ago in the UK where rioters who refused to identify themselves, and prosecution decided to drop the case.
The burden of proof is always on the plaintiff (except for counterclaims brought by the defendant against the plaintiff). In your example, the businessman has to prove that he did not rape her.
Assuming that privilege applies, no Not all communications with your lawyer trigger privilege and if it doesn’t then the lawyer is not your lawyer and is under the same obligation to report as any other member of the public. If privilege does apply then they must keep your secrets. If they are defending you and you confess to the crime then they can: represent you if you plead guilty withdraw unless that would prejudice your defence continue to act providing that they do not: suggest someone else committed the offence set up a defence inconsistent with the confession they can: argue the prosecution has not made their case, that you are not guilty of the offence charged by reason of law, or argue for any other (non prohibited) reason that you should not be convicted.
If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear.
The legal term for what you're talking about is "prejudice." When a lawsuit (or a claim, or a party) is dismissed by a court "with prejudice," that means that the same cause of action cannot be brought again by the same plaintiff against the same defendant. It is also possible to dismiss a claim "without prejudice," meaning the same claim can be brought at a later date. When, exactly, a civil case can be dismissed with or without prejudice will depend on the jurisdiction where you're litigating. However, the general rule is that once the suit is underway, most dismissals are with prejudice. For example, in U.S. federal court, the plaintiff has the right to dismiss the suit without prejudice only up until the defendant responds to the complaint (see Fed. R. Civ. P. 41(a)(1)), unless all of the defendants agree to be sued again later (this does happen, sometimes, but normally only as part of a broader settlement). So, yes; you can lose your substantive legal rights if you refuse to follow the court's procedural rules. Most courts, especially in federal court, where there is a fairly permissive standard of pleading, will give plenty of leeway to pro se litigants, but in the end they have to follow the rules. In my own experience, when pro se claims are dismissed, it's generally on the merits. If cases are dismissed for procedural reasons, it's almost always a case of a pro se litigant refusing to listen to the judge's clear instructions for what they need to do (or, more often, not do).
Although the assailant (or their estate if they are killed) could lodge a claim for damages it does not necessarily follow that they would win - they would have to show that the shooting was not legitimate self-defence but rather was unlawful by, for example, negligence or use of excessive force - say by shooting them when they didn't pose an immediate and unjustified threat. The Federation rules, as far as I can see, are not actual legislation. Although they should be adhered to in normal circumstances, this shooting would be, in the given circumstances, legitimate self-defence according to Article 122-5 of the Code Pénal which says: N'est pas pénalement responsable la personne qui, devant une atteinte injustifiée envers elle-même ou autrui, accomplit, dans le même temps, un acte commandé par la nécessité de la légitime défense d'elle-même ou d'autrui, sauf s'il y a disproportion entre les moyens de défense employés et la gravité de l'atteinte. N'est pas pénalement responsable la personne qui, pour interrompre l'exécution d'un crime ou d'un délit contre un bien, accomplit un acte de défense, autre qu'un homicide volontaire, lorsque cet acte est strictement nécessaire au but poursuivi dès lors que les moyens employés sont proportionnés à la gravité de l'infraction. Which Google translates to English as: The person who, in the face of an unjustified attack on himself or others, performs, at the same time, an act ordered by the necessity of the self-defense of himself or of others, is not criminally liable, except 'there is a disproportion between the means of defense employed and the seriousness of the infringement. The person who, in order to interrupt the execution of a crime or an offense against property, performs an act of defense, other than intentional homicide, when this act is strictly necessary for the aim pursued, is not criminally liable. provided that the means employed are proportionate to the gravity of the offense.