When Should You Plead the Fifth?

Anyone who has watched any courtroom TV drama knows the phrase, “I plead the fifth” by someone on the stand. But what does it actually mean?

In short, pleading the fifth refers to the Fifth Amendment to the United States Constitution, which protects Americans’ right to remain silent or share information with police that may incriminate them while in custody or court. It’s also called “the right against self-incrimination.”

If you find yourself battling criminal charges and determining whether or not you should plead the fifth, you also have the right to an attorney and should hire one. Here is what else you should know about the Fifth Amendment.

What Else Does the Fifth Amendment Protect?

The Fifth Amendment was designed to protect the rights of the accused, due process of law, and related complications. It also protects the accused by:

• Giving them the right to a grand jury to decide whether or not federal charges will be made.
• Protecting them against self-incrimination, means the suspect can refuse to answer a question that could potentially make them look guilty.
• Protecting them from “double jeopardy,” forbids the suspect from being tried for the same crime twice.

How and When Can You Plead the Fifth?

While pleading the fifth is an act of exercising your American rights in the criminal justice system, it does not work in each and every legal case. The defendant charged with a crime asked to testify can plead the fifth and decline answering any questions, but keep these facts about it in mind:

• It protects you from accidentally confessing to a crime, so if you do not want to answer any questions on the stand, plead the fifth immediately and request a criminal defense attorney. Do not sign a waiver of the fifth amendment, and make your fifth amendment claim very broad.
• It does not protect you from answering basic questions at the original police stop, like those that confirm your identity; if you do not, you can be arrested. It also does not protect a company, but does an individual.
• It does protect you from testifying, but you cannot necessarily avoid charges and skip trial, or you could face jail time.

Besides protecting one’s self during a criminal trial, the fifth amendment also applies to:

• Traffic stops: When being pulled over, an officer will usually ask you questions about the reason for the traffic stop, which are usually designed to elicit incriminating answers for traffic court.
  • Do you know why I pulled you over?
  • Do you know how fast you were going?
  • Have you had anything to drink?
• Arrests: When arrested and taken into custody, police will remind you of your rights when they tell you the Miranda Rights before interrogating you. If your rights were not read to you, then anything you say during the questioning will be inadmissible based on the “exclusionary rule.”
• Grand jury proceedings: Compliance with the Grand Jury is mandatory and can result in a fine or imprisonment for contempt. Legally, you can still plead the fifth, and your attorney can notify the prosecutor who may call off the testimony, but if they don’t withdraw the subpoena, you still have to appear. While on the stand, you can still plead the fifth.
• Civil depositions and trials: If you refuse to testify, there may be benefits, but there also may be consequences. If you don’t want to testify, you miss on the opportunity to tell your side of the story. If you invoke the fifth during earlier stages of proceedings (pretrial hearing or discovery deposition), you will be barred from testifying during the actual trial. If the defendant refuses to testify, the judge can call a “adverse inference,” where the jury can assume that the facts shared would have been unfavorable to the defendant.
• Testimony before the US Congress: If you plead the fifth, the government may choose to give you immunity on your statements. Essentially if you testify, then what you say won’t be used against you.
• Government employees under investigation at their job: A testimony is compelled and inadmissible if the Supreme Court forced a government employee to answer questions with the fear they may lose their job if they don’t speak. The fifth amendment only protects against the state, not the private sector.
• Subpeona to produce documents: You have to call the “act of production privilege” to plead the fifth in producing documents. You must also notify the prosecutor of your plans. Then you will be called to explain to the judge why the subpoena went unanswered.

Can I Invoke the Fifth Amendment if I am Innocent?

Even if you are innocent and not guilty, you can still use the fifth amendment’s protection. In fact, when the fifth amendment was created, the framers wanted it to protect both the guilty and innocent.

The Supreme Court also recognizes there may be situations in which an innocent person may choose to invoke the fifth if they reasonably fear that it may incriminate them. A case with the perfect example of an innocent person invoking the fifth is the Supreme Court case of Ohio v Reiner. A father is accused of injuring his baby son, which eventually resulted in the baby’s death, but the father is claiming innocence and saying it was the babysitter’s doing. The babysitter invoked the fifth as the questions that were asked would have put her in an incriminating position, even though she was innocent.

You are not allowed to just invoke the fifth amendment if you do not wish to testify, based on the danger of “imaginary and unsubstantial character.” Essentially this means if somebody brings a lawsuit that is likely based on assumptions, has unrealistic expectations, or even lacks evidence, you have to testify. If you don’t, because of the danger of “imaginary and unsusbstantial character, it can lead to wasted resources or harm to innocent parties. An example is if you are standing at an intersection and see a car crash, you have to testify and can not choose to invoke the fifth.

Does Pleading the Fifth Make Me Look Guilty?

It may seem like choosing to plead the fifth and remain silent may make a defendant look guilty, but this is not the case. If a defendant pleads the fifth, the prosecutor legally cannot argue to the jury that this implies guilt. Likewise, choosing not to answer questions cannot be used as evidence against the defendant during a trial.

Juries, however, can make their decision based on the defendant’s choice to plead the fifth. Other options for a defendant may just be to answer the prosecutor’s questioning with vague phrases, such as “I don’t know.” The only exception to this are criminal cases. If a defendant invokes the fifth amendment and refuses to testify, it can’t be used against them. The jury needs to have no judgement from this fact and can not use it when deciding the verdict.

If a defendant chooses to take the stand, they can’t invoke the fifth and have to testify on the topics talked about on direct, while witnesses have the option to pick and choose which topics to invoke the fifth.

When Should You Hire an Attorney if Pleading the Fifth?

If you are facing criminal charges, you should plead the fifth until you hire an experienced criminal defense attorney, like the Law Office of David A. Breston, to further discuss your case and the legal options that are best for you. We are here to answer any questions you may have in these complicated situations.