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" means taking advantage of the right to not incriminate yourself.
The Fifth Amendment is a part of the Bill of Rights that guarantees you certain rights if you are ever accused of a crime. It protects you against:
Defendants (in both criminal and civil cases) have the option to avoid testifying in court. Prosecutors, judges, and even your own lawyer cannot make you. This right also applies to:
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. Additionally, if a witness or defendant in a civil trial elects to invoke their Fifth Amendment rights before trial, they may later be barred from presenting certain evidence.
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.
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 type of evidence. The Supreme Court has held this privilege only extends to testimonial evidence, and blood tests and fingerprints are not considered testimonial.
In addition to your rights against self-incrimination, the Fifth Amendment 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 stem from the historic 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 these rights when taking them into custody and before any police questioning occurs.
The Miranda warning requires that officers must inform you of the following before questioning 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 answers you give may be considered involuntary.
Deciding to invoke 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 rights are protected and discuss your options for invoking your Fifth Amendment rights.