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Fox Willis Burnette, PLLC Attorneys At Law Michael S. Farley
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What Happens When a Personal Injury Defendant “Takes the Fifth”?


One of the bedrock principles of American law is that a person cannot be compelled to testify against themselves in a criminal proceeding. The Fifth Amendment to the U.S. Constitution guarantees this right. But what happens when a defendant “takes the Fifth” in a civil trial, such as a personal injury lawsuit, that involves a scenario that could lead to criminal charges?

TN Court of Appeals Reinstates Wrongful Death Lawsuit Arising from Woman’s Mysterious Death

The Tennessee Court of Appeals recently confronted this issue in a case, Smith v. Palmer, arising from the mysterious 2015 death of a young woman in DeKalb County. The victim was attending a three-day festival on Center Hill Lake with some friends. One morning, the friends discovered the victim was not at the campsite; later that day, two fishermen recovered her dead body floating in the water.

The DeKalb County Sheriff investigated the victim’s death but ultimately decided not to pursue any criminal charges. The victim’s mother, however, continued to pursue the matter by hiring private investigators. One of these investigators, a retired Los Angeles police officer with over 18 years of experience as a homicide detective, concluded the victim’s death was likely a homicide and not accidental and that her friends “covered up” the circumstances of what actually happened at the lake.

The victim’s mother–the plaintiff–subsequently filed a wrongful death lawsuit, naming the friends and several unknown “John Does” as defendants. In response to the lawsuit, one of the friends–who we will refer to as “the defendant” for the sake of simplicity–filed an answer in which she repeatedly invoked her Fifth Amendment right against self-incrimination. The defendant also asked the trial judge to reject the evidence offered by the plaintiff’s private investigator and other expert witnesses.

The trial court largely granted the defendant’s evidentiary motion. The court also granted summary judgment to the defendant, essentially finding the plaintiff’s lawsuit lacked sufficient factual allegations. The plaintiff appealed, and the Court of Appeals agreed the trial court’s actions were “improvident.”

Specifically, the appeals court said the trial judge abused his discretion in excluding several portions of the proposed experts’ testimony. For example, with respect to the retired police officer mentioned above, the trial court held the witness was “not an expert regarding autopsies” and was not qualified to determine the victim died as the result of homicide. But in fact, the Court of Appeals said the witness “expressed his opinion as to certain physical and circumstantial evidence,” which was “consistent with his experience and training as a homicide investigator.”

The Court of Appeals also addressed the relevance of the defendant’s decision to invoke her Fifth Amendment rights. Based on how federal courts have handled similar situations, the Court of Appeals here advised that while the defendant’s assertion of privilege is not, in and of itself, an admission of the plaintiff’s allegations, the trial judge must determine for himself whether the exercise of privilege is valid. The trial court must also decide whether a jury may draw a “negative inference” against the defendant at trial based on her refusal to testify.

Speak with a Tennessee Personal Injury Lawyer Today

Wrongful death lawsuits often involve complex facts and questions of law. It is essential to work with an experienced Nashville personal injury lawyer in such cases. Contact the offices of Fox & Farley, Attorneys at Law, if you need advice or assistance today.


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