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In FLorida, however if someone takes the fifth in a civil case, the jury does her it and the lawyer can argue "If they took the fifth, why do you think they did so?" This disparity has never been resolved by the Federal Courts, but it is probably ripe for review someplace.
Wow, that's shocking. I can't imagine that this can survive any kind of Constitutional scrutiny. The Constitution, as interpreted by a long line of precedent, has established that no negative inference may be drawn from a defendant's decision not to take the stand in a criminal trial. It is the prosecution's responsibility to prove its case.
If a prosecutor asked a criminal jury to speculate as to why a defendant took the Fifth in another case, I would expect a mistrial to be declared immediately, and the prosecutor be sanctioned.
Thanks for bringing this up, dt. I imagine that we'll see it addressed in the Circuit Courts.
