Pleading the “Fifth” in Missouri May Not Protect You from an Adverse Decision by the Administrative Hearing Commission

Invoking one’s right to not to self-incriminate is colloquially known as “pleading the Fifth.”  The colloquialism refers to the Fifth Amendment to the United States Constitution, which preserves one’s right to be free from government compulsion to give evidence against oneself. Although the Fifth Amendment is most closely associated with criminal matters, it has frequent application in other contexts.  In Missouri, appearing before the Administrative Hearing Commission (AHC) may require the litigant to invoke the privilege against self-incrimination during questioning, depending upon the allegations. Although such an invocation cannot be held against you in criminal court, a different result may be reached outside of criminal court. If you find yourself in this position, Attorney Danielle Sanger, a professional licensing attorney in Missouri and Kansas, has the knowledge and experience to defend you in hearings before the AHC in Missouri and will advise you on the implications of invoking your right to remain silent.

In Missouri, the AHC is the administrative hearings body that adjudicates disputes between licensee and licensing boards. This administrative remedy must be exhausted prior to litigating the case in court. Frequently, licensees find themselves in a position where criminal liability may attach–even if only a remote possibility–in addition to the adverse licensing action.  Accordingly, Missouri law affords the licensee the right to refuse to answer questions because the answer may be incriminating. Permitting an invocation prevents collateral use of a party’s statements in a disciplinary action relating to a professional license in criminal court.

The Missouri courts have stated that the decision to invoke the privilege against self-incrimination is a personal choice. The choice to be made depends on the facts of the case.[1] At a hearing, the litigant must weigh the right to remain silent against the right to tell one’s side of the story.  Either decision has potential adverse consequences.

In Missouri, “pleading the Fifth” does not insulate a party in civil litigation. In civil litigation, the finder of fact is permitted, in many occasions, to make an adverse inference against the person invoking their right to remain silent if the question is relevant to the litigation.  Allowing the fact-finder to draw the inference against the party invoking their privilege promotes fundamental fairness in civil litigation. Otherwise, a party could hide behind the privilege without any recourse to the opposition.

Missouri law places limitations on the adverse inference a fact-finder may make against a party invoking their right to remain silent.  The fact-finder is permitted to make the inference: it is not mandatory. In the context of a particular case, the fact-finder can disregard the inference. A party invoking the privilege is not prevented from offering evidence.  The invoking party can still offer evidence in support of their position even if they refuse to testify. Furthermore, claiming the privilege is not to be taken by the fact-finder as an admission of guilt. The opposition is not relieved of its burden to produce affirmative evidence at the hearing if a party invokes the privilege.  If the opposition offers enough evidence to prove its case at the hearing, then the inference “shifts the burden” to the party invoking the privilege to rebut the evidence.

Missouri Licensing Defense Lawyer Danielle Sanger recognizes the difficult choices a professional licensee must make when facing a complaint. If you are facing that situation in Missouri or Kansas, you need an attorney who will stand by you and guide you to make the best decisions for you personally and professionally. Call professional licensing attorney Danielle Sanger today at 785-979-4353 to schedule your free consultation. Attorney Sanger will fight to protect you.

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