What Does it Mean to Plead the Fifth?

5th amendment, Criminal, Trial, Testify

The concept of “pleading the Fifth” is often covered by legal dramas on television or in the movies. While it appears obvious what pleading the Fifth Amendment means, some aspects of how it is applied might surprise people.

Because it is not as cut and dried as many think, if you have a case where you think pleading the Fifth Amendment might be an option, the best advice you could follow is to discuss your criminal case with a qualified attorney.

To go into that meeting fully prepared, here is a summary of what “the Fifth Amendment” is and how it is applied.

The Fifth Amendment Explained

fifth amendment, criminal law, lawyer

In those movies and television shows, law enforcement often mentions a suspect’s “right to remain silent.” The suspect’s right to remain silent means they cannot be compelled to provide verbal, incriminating information about themselves or the crime they are alleged to have committed.

The root of this protection for suspects and those accused of a crime is the Fifth Amendment of the United States Constitution. The Fifth Amendment protects anyone accused of a crime from being forced to admit guilt or provide information that helps convict them.

When an individual “takes the Fifth,” they are invoking their Fifth Amendment constitutional right. 

When that right is invoked, the police cannot compel them to offer up incriminating information, nor can a court require them to provide information relevant to the crime.

While the Fifth Amendment prevents law enforcement from compelling self-incriminating testimony, it is most often used by suspects until they have spoken to a criminal defense attorney. Invoking the 5th in this manner stops any police interrogations and gives a defense attorney the time to ascertain the following:

  • The crime the accused is suspected of committing
  • The facts of the case
  • What the suspect is formally charged with

Invoking the Fifth is the most effective way of protecting oneself legally and forcing a prosecutor to prove their case in trial with evidence they collect instead of using an admission.

When Can You Plead the Fifth?

Obviously, you can invoke the Fifth Amendment while in police custody. Additionally, the constitutional right not to self-incriminate extends to a criminal trial. It allows persons accused of committing a crime or crimes to avoid having to testify in their trial. A jury cannot consider a refusal to testify in a trial when determining guilt or innocence.  

Fifth Amendment Limitations

While it might seem that a constitutional right not to self-incriminate might include all evidence against a person, the reality is that this constitutional right only pertains to verbal self-incrimination. The Fifth Amendment does not apply to providing physical evidence.

Physical evidence can include:

  • DNA samples
  • Online records
  • Physical records or communications
  • Other pieces of physical evidence of a crime

Additionally, the Fifth Amendment can only be invoked during specific times. Those include:

  • When communication is compelled, as in a subpoena, formal interrogation, or in court
  • The communication must be testimonial and relate to assertions of belief or fact
  • That testimony must self-incriminate

Those rules mean that certain circumstances forfeit invoking the constitutional right not to self-incriminate:

  • When an individual has immunity
  • When an individual has received a formal pardon
  • When an individual has already been convicted of the crime

In those cases, there is no need to invoke the Fifth Amendment because the government either cannot prosecute the individual for any admissions or their guilt has already been established.

When Should You Plead the Fifth?

The decision to invoke your constitutional right not to self-incriminate breaks down into two distinct occasions:

  • When you are being questioned by police after being formally detained
  • When you are being compelled to provide self-incriminating testimony at trial

Does Pleading the Fifth Indicate Guilt?

Legally, invoking your constitutional right to avoid self-incrimination in regard to an investigation or being forced to testify in a trial does not indicate guilt or innocence. Whether it is a smart legal strategy depends on your case and your attorney’s opinion.

While pleading the Fifth does not indicate guilt, it can influence how a prosecutor pursues a criminal case and, in rare cases, can affect a jury. Juries are made up of humans, and humans can be influenced by external factors, even when instructed not to do so by a judge. That is why careful consideration is paramount before pleading the Fifth.

Talk to an Attorney About Your Fifth Amendment Right Today

criminal law

Each case is unique, and there is no “blanket” Fifth Amendment strategy. You must discuss your pending criminal case and whether the Fifth Amendment applies with a qualified criminal defense attorney. Contact CJB Law today to get started.