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Fifth Amendment Right Against Self-Incrimination

Fifth amendment: Police officer arresting a woman with handcuffs

What Does It Mean to Plead the Fifth?

To "plead the Fifth" means you have the right not to answer police questions both while in custody or in court. The right against self-incrimination is spelled out in the Fifth Amendment to the U.S. Constitution and also extends to state and local jurisdictions. When someone exercises this right, we often say that they "plead the Fifth."

In addition to the right against self-incrimination, the provisions of the Fifth Amendment provide many important safeguards for Americans, including the right to remain silent while in police custody, writs of habeas corpus, and double jeopardy protection. However, this article focuses solely on the self-incrimination clause of the Fifth Amendment in legal proceedings.

The Constitution grants this right quite simply: "[No person]…shall be compelled in any criminal case to be a witness against himself…" However, as with most other constitutional rights, it is subject to interpretation by the courts and often inspires fierce debate.

The Origin of Pleading the Fifth

The right against self-incrimination is rooted in the Puritans' refusal to cooperate with interrogators in 17th century England. They often were coerced or tortured into confessing their religious affiliation and were considered guilty if they remained silent. English law granted its citizens the right against self-incrimination in the mid-1600s, when a revolution established greater parliamentary power.


Testifying in a Legal Proceeding

At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant's own lawyer cannot force the defendant to take the witness stand against their will. However, a defendant who does choose to testify cannot choose to answer some questions but not others. Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial.

When a defendant pleads the Fifth, jurors are not permitted to take the refusal to testify into consideration when deciding whether a defendant is guilty. In the 2001 case Ohio v. Reiner, the U.S. Supreme Court held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The [Fifth Amendment right against self-incrimination] serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." This case beefed up an earlier ruling that prosecutors can't ask a jury to draw an inference of guilt from a defendant's refusal to testify in his own defense.


Can Any Witness Plead the Fifth?



Does the Fifth Amendment Apply to Fingerprints and Blood Tests?



Getting Legal Help with Your Fifth Amendment Questions

Legal proceedings can be tricky to understand, especially if it's your first time in the criminal justice system. If you have questions about your Fifth Amendment rights, or you're facing criminal charges, you may want to contact an experienced criminal defense attorney near you to ensure that these, and other critical rights, are protected.

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