Does It Matter Which Child Sex Abuse Case You Handle First? A Criminal Case and Civil Case?

The Fifth Amendment privilege against self-incrimination has several benefits for the accused in a criminal case.

• The accused does not have to answer any questions before trial;
• The accused cannot be forced to testify at trial;
• If the accused chooses not to testify at trial, the jury is instructed not to draw any inference from that choice.

A civil defendant, like anyone, may refuse to answer questions that might incriminate them. This means a civil defendant, like a criminal defendant, can refuse to answer questions before trial and can refuse to testify at trial.

But the plaintiff in a civil trial is allowed to tell the jury that the defendant has refused to answer questions, and the jury is allowed to infer that the defendant did so to avoid revealing damaging information. This can make it very expensive for a civil defendant to invoke the privilege against self-incrimination.

A defendant who faces criminal and civil claims at the same time is thus in a tight spot: they are called upon to reveal things in the civil case that would be better kept confidential until after the criminal trial.

Washington law sometimes provides a solution. A judge has the power to stay (that is, suspend) the proceedings in the civil case until the criminal case concludes. In deciding whether to do that, the judge is to consider a variety of factors set out in the case of King v. Olympic Pipe Line Co.

A civil case can be stayed even if no criminal case has yet been started. All that is required is that criminal prosecution be a genuine possibility. But a judge is less likely to choose to stay a civil case if a criminal case does not seem likely to start and conclude in a foreseeable time.