Pleading the Fifth: What It Means and When You Can Use It

You’ve probably seen a movie or television show where a witness refuses to answer questions by “pleading the Fifth.” In many cases, you may see a witness invoke this protection multiple times during a criminal proceeding.

The right to plead the Fifth comes from the Fifth Amendment of the United States Constitution. The federal government offers this right to protect individuals from being forced to incriminate themselves and to ensure that the state bears the burden of proof in a criminal case. While pleading the Fifth is most common in criminal trials, you can assert this right in a civil case as well, though there are important differences in how it’s treated.

In this article, we’ll focus on what it means to “Plead the Fifth” in the context of a criminal trial. We will also discuss when you can assert this right and what happens after you do so. If you’re facing criminal charges and aren’t sure whether it’s in your best interest to testify, contact a local criminal defense attorney for legal advice.

What Does “Pleading the Fifth” Mean?

“Pleading the Fifth” means that an individual chooses not to answer questions when doing so may lead to criminal prosecution. It emanates from the Fifth Amendment to the U.S. Constitution, which protects U.S. citizens from self-incrimination and double jeopardy. This amendment also guarantees criminal defendants due process of law and just compensation when the government takes a person’s property for public use and requires grand jury indictments in federal cases.

A person pleads the Fifth when they don’t want to answer questions posed to them during police questioning, criminal (or civil) trials, and other court proceedings. This constitutional right extends to all phases of a criminal investigation and prosecution. It does not offer protection against civil liability or other consequences.

Law enforcement officers must read suspects their Miranda rights before questioning them, making sure that they are aware of the right to remain silent. By exercising this right, a criminal suspect invokes their legal protections under the Fifth Amendment. This can mean choosing to remain silent rather than answering any questions.

When Can You Plead the Fifth?

You can invoke your 5th Amendment rights at various points of your legal proceedings. You can even invoke this right after starting to answer questions that could lead to a criminal prosecution.

Pleading the Fifth is common in the following situations:

• When you are a defendant in a criminal case and choose not to testify
• During police interrogations
• After a police officer reads you the Miranda warning
• At any time while in police custody
• During a traffic stop
• During pretrial motions and other proceedings
• When you are a witness in someone else’s criminal case
• During Congressional and administrative hearings

The Fifth Amendment is commonly invoked during criminal proceedings, but can also be used by a defendant in a civil case if the other party’s attorney asks a question whose answer could lead to criminal prosecution. If the answer to a plaintiff’s question in a civil fraud case could lead to a criminal fraud charge, the defendant may opt to invoke their Fifth Amendment rights.

When Can’t You Plead the Fifth?

Your Fifth Amendment rights are broad and extend to almost all stages of a criminal case. However, there are instances where your constitutional rights won’t protect you. Some of the situations in which you cannot plead the Fifth include, but are not limited to, the following:

• Physical evidence: The Fifth Amendment applies to testimonial evidence, not physical evidence. You cannot refuse to submit DNA or fingerprint evidence.
• On behalf of a business: The right to plead the Fifth applies to citizens, not businesses. If you are testifying on behalf of a corporation, the protections do not apply.
• Immunity: Your Fifth Amendment rights ensure that the state must bear the burden of proof beyond a reasonable doubt, but that right doesn’t apply if you have been granted immunity from prosecution. When granted immunity, you can be compelled to testify because the privilege no longer applies.
• Informational purposes: You cannot plead the Fifth solely to protect others from incrimination. You can still invoke this right if answering questions about other people would incriminate you.

Your state’s rules of criminal procedure may include other instances when you can’t plead the Fifth. This is an extremely tricky legal area, and there’s no shame in meeting with a criminal defense lawyer to gain a better understanding of the situation.

Common Misconceptions About Pleading the Fifth

Movies and television have made it easy to assume that anyone who invokes their Fifth Amendment rights is guilty, but that’s misleading. There are many legitimate reasons for pleading the Fifth. One of the biggest misconceptions about pleading the Fifth is that the person is hiding something. While it’s true that some guilty people do plead the Fifth, that doesn’t mean everyone who does so is a criminal.

There are several reasons why a person would choose to plead the Fifth. These can include:

• They don’t remember exactly what happened and don’t want to say the wrong thing
• The individual believes they are protecting someone they care about by refusing to answer a police officer‘s or prosecutor’s questions
• They are nervous, especially in front of a jury and a courtroom full of people

Another misconception about pleading the Fifth is that it prevents the prosecutor from introducing any evidence against you. The Fifth Amendment right against incrimination doesn’t apply to physical evidence. While you can refuse to answer questions by invoking the Fifth Amendment, court orders can still compel you to provide DNA or fingerprint evidence to the state.

What Happens if You Plead the Fifth?

Pleading the Fifth does not mean that the state can use it against you at trial. In criminal cases, this isn’t allowed. The prosecutor cannot comment on or tell the jury that you invoked your Fifth Amendment rights, or suggest you did so because you were guilty. This doesn’t mean a judge or a jury won’t draw this conclusion on their own.

While the state can’t use it against you in criminal proceedings, there can be consequences to pleading the Fifth. Examples include:

• If your plea deal requires you to testify truthfully, you may have waived your Fifth Amendment rights as part of that agreement
• If you do choose to testify, you will still be subjected to cross-examination, but only about things you did testify to
• The state can still introduce non-testimonial evidence

While these things can negatively impact the outcome of your court proceedings, there are other benefits to pleading the Fifth. Some of these include:

• You will not go to jail for pleading the Fifth
• The state cannot compel you to testify in a way that would incriminate you, even before a grand jury
• Neither the prosecutor nor the judge can force you to answer questions you don’t want to answer
• The court cannot force you to testify against a co-conspirator

Deciding whether to plead the Fifth is a serious and important decision. While the law prohibits prosecutors from using it against you in criminal cases, pleading the Fifth may lead a jury to believe you have something to hide.

Should You Plead the Fifth?

Deciding whether to plead the Fifth is a personal decision. Every case is different. You should have a discussion with your criminal defense attorney about the pros and cons of invoking your Fifth Amendment rights.

The Bill of Rights and the Fifth Amendment protect you from having to incriminate yourself. You have a constitutional right to invoke the Fifth Amendment at any point during your criminal proceedings. However, you have to weigh the benefits of doing this against the adverse inferences the jury may draw.

It may be easier to make this decision when you aren’t a party to a criminal case. For instance, if you receive a subpoena to testify against a coworker or neighbor, pleading the Fifth may not be a big deal. However, if you are the one on trial, this decision can mean the difference between a conviction and an acquittal.

Seek Help From an Experienced Criminal Defense Attorney

If you’re the defendant in a criminal case, your entire future may be at risk. You can invoke your Fifth Amendment privilege to keep the prosecutor from forcing you to answer questions while on the stand, but it may not be your best option.

It’s a good idea to speak with a criminal defense lawyer before any criminal proceedings. An experienced defense attorney can answer questions, explain your options, and represent you going forward.