The Fifth Amendment to the U.S. Constitution guarantees that an individual cannot be compelled by the government to provide incriminating information about herself – the so-called “right to remain silent.” When an individual “takes the Fifth,” she invokes that right and refuses to answer questions or provide information that might incriminate her.
The Fifth Amendment can be invoked only in certain situations.
- An individual can only invoke the Fifth Amendment in response to a communication that is compelled, such as through a subpoena or other legal process.
- The communication must also be testimonial in nature. In other words, it must relate to either express or implied assertions of fact or belief. For example, a nod would be considered a testimonial communication for purposes of the Fifth Amendment. So would the act of producing documents or any other piece of evidence; the act of production communicates an implied assertion that the individual possessed the evidence.
- Finally, the testimony must be self-incriminating, such that the information would provide a link in the chain of evidence needed to prosecute the individual for a crime. Thus, the information itself need not be incriminating; it suffices that the information would lead to the discovery of incriminating evidence.
Because the communication must be self-incriminating, an individual who has received immunity cannot invoke the Fifth Amendment as a basis for refusing to answer questions; any statements would not be incriminating because the immunity prevents the government from using those statements (or any evidence derived from them) in a criminal prosecution against the individual. Likewise, an individual who has received a pardon may not have any basis for invoking the Fifth Amendment. Finally, an individual who has been convicted of a crime and sentenced cannot invoke the Fifth Amendment.
When an individual takes the Fifth, her silence or refusal to answer questions cannot be used against her in a criminal case. A prosecutor cannot argue to the jury that the defendant’s silence implies guilt. And prosecutors typically cannot even call a witness before thegrand jury if the prosecutor knows the witness will invoke the Fifth Amendment.
But taking the Fifth can have severe consequences nonetheless. In a civil case or a civil enforcement action, the judge or jury can draw an adverse inference to support liability when the defendant invokes the Fifth Amendment. And an employee who invokes the Fifth Amendment in response to questions from federal agents who are investigating corporate wrongdoing might be fired as a result.
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FAQs
When an individual takes the Fifth, her silence or refusal to answer questions cannot be used against her in a criminal case. A prosecutor cannot argue to the jury that the defendant's silence implies guilt.
What does it mean to take the Fifth? ›
“Taking the Fifth" or “pleading the Fifth” are colloquial terms used to refer to an individual's decision to invoke their right against self-incrimination under the Fifth Amendment of the United States Constitution.
What is the point of pleading the Fifth? ›
For someone facing criminal charges, pleading the Fifth means exercising their right to remain silent and not incriminate themselves. If you worry about answering questions out of fear that you may be guilty of a crime, you have the legal right to plead the Fifth.
What does it mean if you tell a judge you are taking the fifth? ›
By pleading the Fifth, the person chooses to remain silent. It's the prosecution's job (the government lawyer in criminal cases) to prove the defendant guilty, not the other way around. A defendant doesn't need to establish their innocence and can choose silence.
What is an example of taking the fifth? ›
Often when a person takes the fifth, they actually say something to the effect of: "I refuse to answer on the grounds that it may incriminate me." While this sounds like an admission of guilt, it isn't one, at least not legally.
Can pleading the fifth be overruled? ›
A witness can waive (give up) the right to invoke the Fifth by later making statements about the topic in question. For example, if a witness invokes the Fifth but goes on to selectively answer questions about the same subject matter, a judge might decide that the later answers invalidate the initial waiver.
When can you not plead the Fifth? ›
As noted above, the Fifth Amendment Privilege applies only to self-incriminating testimony relating to a crime. It does not apply to civil or family matters. You cannot assert this protection to avoid testifying that you breached a contract or that you left your spouse, for example, as these are not crimes.
What are the disadvantages of pleading the Fifth? ›
But taking the Fifth can have severe consequences nonetheless. In a civil case or a civil enforcement action, the judge or jury can draw an adverse inference to support liability when the defendant invokes the Fifth Amendment.
Does pleading the Fifth keep you out of jail? ›
Your case will not be dismissed. However, the prosecutors will not be allowed to use any statements you made while in custody during police questioning. This is called the “exclusionary rule.”
What does "I plead the 8th" mean? ›
Learn more about our history and our editorial standards. Learn more about our editorial standards. The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments." Virtually every state constitution also has its own prohibition against such penalties.
invoking of the privilege was not ground for disbarment unless it was accompanied by "contumacious conduct" on the part of the attorney.
What to say when pleading the Fifth? ›
“On the advice of counsel, I invoke my fifth amendment privilege against self-incrimination and respectfully decline to answer your question.”
Can you plead the Fifth to a cop? ›
Under the Fifth Amendment, you can refuse to answer any questions asked by an officer during a traffic stop. This can simply be done by stating that you wish to “plead the Fifth,” however, it's not always necessary to say those exact words.
Why would someone plead the Fifth? ›
When someone invokes or pleads the Fifth, they are stating that they will not engage in conversation or give information to law enforcement. Oftentimes, individuals use their right to remain silent until they have had the chance to speak with a defense attorney.
Can you plead the Fifth if you are subpoenaed? ›
So if you're subpoenaed to testify or provide documents in a congressional investigation, you can invoke the Fifth if you have a reasonable fear that complying could expose you to criminal prosecution.
What is a silent plea? ›
The defendant can plead guilty, not guilty, or stand mute (also known as a “standing silent” plea). Standing mute or silent means a defendant does not take a stance on being guilty or not guilty; they remain silent pursuant to rights guaranteed by the 5th Amendment.
What does the Fifth mean in slang? ›
something that you say in order to tell someone you are not going to answer a question: "So, who do you like best, Jenny or Kim?" "Sorry, I take the Fifth on that."
What does it mean to choose the Fifth? ›
: to refuse to testify against oneself in a court of law in accordance with the Fifth Amendment of the U.S. Constitution : plead the Fifth. She got called to testify … and took the Fifth. That's certainly her right …
What do you say when taking the fifth? ›
“On the advice of counsel, I invoke my fifth amendment privilege against self-incrimination and respectfully decline to answer your question.” Your 5th Amendment right to remain silent and your 6th Amendment right to counsel is explained in the Miranda rights warning read by officers before a custodial interrogation.
What does it mean when someone gives you the Fifth degree? ›
: the grade sometimes given to the least serious form of a crime. theft in the fifth degree.
