Day on Torts
Defendant asserted his Fifth Amendment privilege against self-incrimination throughout the discovery phase of a civil trial. During the fourth week of trial he attempted to waive the privilege and give substantive testimony.
The Wisconsin Court of Appeals upheld the decision of the trial judge to prohibit the the witness from withdrawing his assertion of the privilege. The Court explained as follows:
Invoking the privilege during discovery only to later withdraw the privilege may give the invoking party a decided advantage in that he or she can delay having to answer questions until after having had the opportunity to watch the adverse party’s case develop. It allows the invoking party to conceal information and then tailor the invoker’s own version of the events to meet the opposition’s theory of the case and the evidence garnered in support of it.