We often hear characters in police shows or courtroom dramas discussing pleading the 5th. It is generally understood as protection where an individual under oath chooses to invoke their Fifth Amendment right against self-incrimination rather than say something that could be used against them in court. And for the record, the correct usage is not “take the Fifth” or “plead the Fifth.” People invoke the Fifth.
What is the Fifth?
The U.S. Constitution’s Fifth Amendment provides several rights, including one where “no one should be compelled in a criminal case to be a witness against themselves.” It includes giving unfavorable testimony during legal proceedings involving a crime. The protection also ensures that authorities cannot torture suspects to secure a confession. The Miranda warning about “the right to remain silent” and having an attorney present for questioning also falls under the Fifth.
No longer used exclusively in criminal cases
The Fifth is now used in other contexts as well. It is also used in civil courts and different government settings. In fact, the U.S. Supreme Court ruled that the Fifth Amendment can also be used by public employees fired for refusing to testify in investigations – they must first have immunity from the prosecution before cooperating.
When can it be invoked?
Generally speaking, the witness or suspect can invoke the Fifth if there is the risk of criminal prosecution. Witnesses may be coerced with contempt of court, but the courts will generally err on the side of a broad application of the Fifth. This approach lowers the likelihood that a witness was inadvertently forced to say something that would be self-incriminating.
Is it an admission of guilt?
Prosecutors cannot officially comment on a defendant or witness citing the Fifth, but jurors cannot be advised that invoking the Fifth is okay and not a sign of guilt. The Supreme Court also ruled that allowing the inference unfairly penalizes someone for taking advantage of their legal rights. Conversely, the court of public opinion generally rules that it is a sign of guilt or the act of someone with something to hide.
Those wishing to exercise their Fifth Amendment right likely already have an attorney. As this piece shows, it is worth a conversation with the attorney to discuss if, how and when they should invoke the Fifth.