What Is Pleading the Fifth and When to Use It
November 11th, 2021
Under the Fifth Amendment to the United States Constitution, a person cannot be compelled by the government to provide incriminating information about him- or herself.
Specifically, the Fifth Amendment states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In common usage, people often say they “plead the fifth” when they are refusing to answer a question.
But in a technical legal sense, pleading the fifth is much more complex. There are limitations on when a person can assert their Fifth Amendment right against self-incrimination, instances in which a person cannot claim their Fifth Amendment rights (such as if they have been granted immunity from prosecution), and criteria that must be met before a person can refuse to answer a question under the Fifth Amendment.
The language of the Fifth Amendment is very specific and can only be invoked in certain situations.
A person can only assert their Fifth Amendment rights in response to a request from the government through a subpoena or other legal process.
To claim a Fifth Amendment right against self-incrimination, the communication requested must be testimonial in nature. The person receiving a request must be asked to provide testimony or to produce documents or other evidence in response to a subpoena.
Finally, to invoke the Fifth Amendment, the testimony must be self-incriminating. By providing the information requested, the person asked to testify or produce information would provide information that could lead to their being charged with a crime. The information itself does not need to be incriminating, but it must lead to the discovery of evidence that could be incriminating.
When a person invokes their Fifth Amendment rights, it means they are refusing to answer a question, and that their silence cannot be used against them in a criminal case. If a person invokes their Fifth Amendment rights, the prosecutor cannot argue that the defendant’s silence implies that he or she was guilty. And in most cases, a prosecutor cannot call a witness to testify before a grand jury if they know the witness will invoke their Fifth Amendment rights.
However, invoking your Fifth Amendment rights can have severe consequences. For example, in a civil case, a judge or jury can infer that someone’s silence implies they were liable. Likewise, someone who invokes their Fifth Amendment rights during questioning about a corporate crime could be fired from their job.
While the right against self-incrimination is fundamental and a cornerstone of our legal system, taking the Fifth Amendment is not always the best option.
If you are tempted to claim your Fifth Amendment rights, you should only do so after discussing the situation with your lawyer. Any conversations you have with your lawyer about whether or not to claim your Fifth Amendment rights are protected by the attorney-client privilege. Your lawyer cannot be compelled to testify against you and anything you say to your lawyer will remain confidential.
If your lawyer determines that there is a real risk that your testimony could reveal your involvement in illegal activity, it may be best to take the Fifth. But in some cases, your lawyer may be able to negotiate immunity in exchange for information that you provide. If you are granted immunity, the prosecutor agrees not to prosecute you for the crime that was the basis of your decision to plead the Fifth. Once the threat of prosecution is gone, you may be compelled to testify, but without the threat of criminal prosecution.
If you find yourself in a situation where you are considering pleading the Fifth, it is critical that you speak to an attorney first.
Criminal defense attorney Christina L. Williams and her legal defense team at Just Criminal Law can explain your rights under the Fifth Amendment, answer your questions, and provide aggressive legal representation if you have been charged with a crime, or find yourself in a situation where you could be charged with a crime.
Learn more about the cases we handle, the communities we serve, and why clients choose us. Then contact The Legal Team of Christina L. Williams today to schedule your personalized case review and strategy session.
DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.
Categories: Criminal Charges - General Questions