The adverse inference that can be drawn from a Fifth Amendment assertion does not relieve the plaintiff of the burden to prove the case. A key facet of the adverse inference is that the Fifth Amendment does not forbid an adverse inference when a party refuses to testify in response to probative evidence offered against him or her. See Lefkowitz v. Cunningham, 431 U.S. 801, 808 (1977); Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). The inference itself cannot substitute for admissible evidence to support an ultimate issue of fact. See Avergin v. Hull, 932 F.2d 1572, 1580 (11th Cir. 1991). In Lefkowitz v. Cunningham, the Supreme Court declined to allow an adverse inference, as probative evidence had not been adduced. 431 U.S. 801, 808 n.5 (1977). Accordingly, before the plaintiff can count on utilizing an adverse inference, there must be some evidence, even if circumstantial, to support its claims. Only then may the defendant’s invocation of the Fifth Amendment be used to bolster the plaintiff’s case. See, e.g., LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 391 (7th Cir. 1995) (holding that plaintiff not entitled to summary judgment when defendant, asserting Fifth Amendment right, declined to admit or deny facts); In re Enron Corp. Sec., Derivative & ERISA Litig., 490 F. Supp. 2d 784, 825–26 (S.D. Tex. 2007) (dismissing complaint for fraud due to lack of pleading with particularity, as evidentiary significance of Fifth Amendment assertion could not cure pleading deficiencies); In re Curtis, 177 B.R. 717, 720 (S.D. Ala. 1995) (holding that plaintiff cannot rely on defendant‘s assertion of Fifth Amendment to establish elements of fraud).
White-collar prosecutions continue to grab headlines. Pleading the Fifth Amendment is frequently a sound choice for criminal defendants, yet it is important to understand how this decision affects a civil case. The courts have endeavored to maintain a balance between the defendant’s Fifth Amendment rights and a plaintiff’s right to fully present evidence. Nevertheless, as statutes and regulations continue to expand in scope by criminalizing a wide variety of violations, both counsel and the courts will need to carefully apply this balance in the context of civil proceedings.