Criminal Law

Your Fifth Amendment Right Against Self-Incrimination

Key Takeaways:

  • “Pleading the Fifth” means the right to not make statements in criminal proceedings that would incriminate yourself. 
  • Defendants can also “take the Fifth” in civil proceedings if their answer could lead to criminal charges. 
  • Witnesses “take the Fifth” when on the stand if their answers could lead to facing criminal charges.

Most people have heard the term “pleading the Fifth,” but may not know exactly what it means. The phrase refers to the Fifth Amendment of the United States Constitution, and “pleading the Fifth” is a criminal law term meaning taking advantage of the right to not incriminate yourself. To not incriminate yourself means you can refuse to answer police or prosecutors’ questions where an answer would admit guilt.

criminal defense lawyer devoted to defending you against criminal charges will be in the best position to determine if “pleading the Fifth” is appropriate and beneficial for you.

What Is the Fifth Amendment?

The Fifth Amendment is a part of the Bill of Rights. It gives criminal defendants the privilege against self-incrimination. It also guarantees you certain rights during criminal proceedings. The Fifth Amendment Privilege protects you against:

  • Going to prison, being put to death, or having property confiscated without a trial
  • Going to trial for the same offense twice (double jeopardy)
  • Having private property taken for public use without just compensation
  • Being charged with a crime without an indictment
  • Being forced to testify against yourself or to say something that incriminates yourself

Protections Against Testifying in Court

Defendants (in both criminal and civil cases) have the option to avoid testifying in a criminal prosecution. Prosecutors, judges, and even your own lawyer cannot make you. This right also applies to:

Juries cannot make an adverse inference from a defendant’s silence. In other words, if you choose not to testify, the jury cannot consider your refusal when determining guilt or innocence.

Defendants in a civil case also do not have to testify in court if it would lead to them being charged with a crime. However, unlike in criminal trials, the jury may take your refusal to testify into account when reaching a verdict. But if you invoke your Fifth Amendment rights before a civil trial, you may later be barred from presenting certain evidence.

Can Witnesses Plead the Fifth?

If you are a witness, you have a right to refuse to testify in some cases. If the testimony could potentially lead to you facing criminal charges, even charges that may be unrelated to the case, you may refuse.

Unlike the defendant in the case, however, witnesses can be forced to take the witness stand, usually with the use of a subpoena. Witnesses also do not entirely waive their rights when they take the stand. As a witness, you may elect not to answer certain questions while answering others.

An example might involve a witness who saw a murder occur while breaking into the victim’s home. If the witness answers questions about where they were or what they were doing at the time of the murder, the responses could lead to criminal charges. In such a case, the witness may refuse to answer those questions. However, the witness may elect to answer other questions about the murder.

Can You Refuse to Give Blood Tests and Fingerprints?

While you can choose not to testify in court or answer incriminating questions, you can’t refuse the collection of fingerprints or DNA samples, such as hair or saliva if law enforcement has the authority to collect this evidence. The Supreme Court has ruled that the Fifth Amendment privilege only extends to testimonial evidence, and blood tests and fingerprints are not considered testimonial.

Your Miranda Rights

In addition to your rights against self-incrimination, the Fifth Amendment of the U.S. Constitution also gives you the right to remain silent. The police must inform you of these rights ( known as Miranda rights) before interrogating you.

The term Miranda rights stems from the 1966 U.S. Supreme Court case Miranda v. Arizona. Miranda warnings are based on the Fifth Amendment’s rights against self-incrimination and the Sixth Amendment’s right to counsel. Police must inform suspects of the following rights when taking them into custody and before any questioning occurs:

  • You have the right to remain silent
  • Anything you say can and will be used against you in a court of law
  • You have the right to an attorney
  • If you cannot afford an attorney, one will be appointed for you

You can refuse to answer questions without a lawyer present, especially if your answers could lead to criminal charges. If you are not informed of your rights before questioning, any incriminating statements you give could be considered involuntary.

An Attorney Can Help With Your Fifth Amendment Concerns

Invoking your Fifth Amendment right against self-incrimination can be complicated, both in civil and criminal cases. If you are facing charges, you may want to contact an experienced criminal defense attorney to ensure your constitutional rights are protected and discuss your options for invoking the Fifth Amendment protection of your Fifth Amendment rights.

Was this helpful?

At LawInfo, we know legal issues can be stressful and confusing. We are committed to providing you with reliable legal information in a way that is easy to understand. Our pages are written by legal writers and reviewed by legal experts. We strive to present information in a neutral and unbiased way, so that you can make informed decisions based on your legal circumstances.