The Fifth Amendment is applied to Florida, and all the other States, through the Fourteenth Amendment. It protects a person from self-incrimination and is meant to “assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.” Maness v. Meyers, 419 U.S. 449, 461 (1975). A witness in a civil proceeding has the right to refuse to respond to a question on the grounds that his answer may tend to incriminate him. See Kastigar v. United States, 406 U.S. 441, 444-45 (1972).
In an injunction hearing is a civil proceeding. Quite often, the civil proceeding is intertwined with a criminal case. For example, the respondent that is defending against the restraining order may also be the Jacksonville criminal defendant in a Jacksonville domestic battery case. Other example occurs when the respondent has not been charged with a crime, but he or she may be arrested in the future for conduct alleged in the Jacksonville petition for an injunction.
The Florida Fourth District Court of Appeals has found that a respondent did not waive his Fifth Amendment right when he testified at a Florida injunction hearing. Since this right “is a fundamental principle secured by the Fifth Amendment, waiver of the privilege will not be lightly inferred, and courts will generally indulge every reasonable presumption against finding a waiver.” Jenkins v. Wessel, 780 So. 2d 1006, 1008 (Fla. 4th DCA 2001) (citing State v. Spiegel, 710 So. 2d 13, 16 (Fla. 3d DCA 1998). The court held that the Fifth Amendment privilege against self-incrimination is waived “only as to matters relevant to issues raised by [the witness’s] testimony on direct examination.” Jenkins, 780 So. 2d 1006, 1008 (citing Johnson v. State, 509 So. 2d 373, 373 (Fla. 4th DCA 1987)).
From one Jacksonville Criminal Attorney to another, thank you to Russell Smith, Esq. for drawing my attention to this excellent case.