By Logan Quirk
“Plead the fifth” is a phrase you’ve probably heard more than a few times before even if you’ve never set foot inside a courtroom. TV shows and movies that feature legal proceedings have not shied away from shining a light on that mechanism of the law.
But what does invoking that right do for you? Could have the opposite effect of making you appear guilty even if you have done nothing wrong?
The hope is that you never find yourself in a situation where you need to consider invoking the rights provided by the Fifth Amendment. One can never be completely certain they will not need to spend a day in court, however.
Knowing your rights and understanding them fully is always recommended. With that in mind, let’s dive deeper into the specifics of the Fifth Amendment and find out what it means when you use it.
What Is the Fifth Amendment?
What the Fifth Amendment of the United States’ constitution does is effectively create rights that people can use during civil and criminal legal proceedings.
The Fifth Amendment contains several elements that have become important elements of the law as we know it today. It notably states that we cannot deprive a person of life, liberty, or law without first going through the due process laid out in the law.
It also indicates that we can only try felonies after an indictment by a grand jury takes place. They include the double jeopardy clause in this amendment. The double jeopardy clause is similarly included in this amendment. That particular clause prevents individuals from being tried in federal court for the same crime more than once.
All those provisions in the Fifth Amendment have proven immensely useful, and they have helped to foster a balance in the legal system.
More often than not, though, those are not the specific parts of the Fifth Amendment being referred to whenever someone says they “plead the fifth.”
The part of the Fifth Amendment people refer to when they utter that oft-used phrase in legal proceedings is the clause about self-incrimination. The clause specifically states that no person “shall be compelled in any criminal case to be a witness against himself.”
Basically, what the clause does is protect people from self-incrimination. The authorities or court may sometimes require you to speak to them, but you don’t need to if you are afraid, they will hold the things you say against you.
Why Were Protections Against Self-Incrimination Established?
Providing a form of protection against self-incrimination into the constitution has proven to be a good move. That clause in the Fifth Amendment has come in handy as they give people a legal device that shields them from being accused of committing a crime even if they were only helping in a trial.
Let’s say they invited you to serve as a witness in a trial involving someone you know. They have accused this acquaintance or friend of yours of doxxing, but the prosecutors may feel that he/she is not the only one involved. They may think that you are involved in some capacity as well.
You may have started to harbor that suspicion and you’re worried that being on the stand as a witness could be their way of looping you in with the accused. That doesn’t always happen, but if you have concerns about being portrayed as guilty because you served as a witness, it’s in your best interest to protect yourself.
In a situation such as that, avoiding self-incrimination must be your focus.
Imagine living in a time where they offered no protections against self-incrimination. That was what people had to deal with back in the day.
If you’re wondering why the Fifth Amendment must outline why people have the right not to incriminate themselves, it’s because they can do all kinds of things to force a false confession out of someone.
Those in a position who had a grudge against someone could leverage their authority to extract a false confession. They used torture to force people to say something self-incriminating. They could also coerce people into admitting guilt, even if the folks in question were innocent.
Unfortunately, such practices were quite popular in England back in the late 16th century and during the early part of the 17th century. They often victimized Puritans by abusive practices, and they could only curb those once they enacted protection against self-incrimination.
Without those protections, people in power could abuse their authority to get the results they want out of trials.
When Can You “Plead the Fifth?”
An important thing you should know about pleading the fifth is that it does not serve as a catch-all protection whenever they interrogate you about a matter pertaining to a crime.
For example, the police come to the scene of a car accident that involves your vehicle. They ask you what happened, but before responding, you decide not to say anything and protect yourself from being held liable.
In a scenario such as that, you can’t “plead the fifth” in the hopes that the police officer will leave you alone and move on to questioning someone else. The Fifth Amendment does not compel them to stop their interrogation.
You can still use your right to remain silent, though, and that should prevent them from getting any information they can use against you later. Alternatively, you can tell the police officer you will not say anything until your attorney is present. Once you do that, the officer will realize you are not going to cooperate without legal representation present, and they will be more inclined to move on.
So, when can you “plead the fifth” to protect yourself? That typically happens in a courtroom setting.
When You Are the One on Trial
Throughout a trial, they may call different people to serve as a witness. They may even ask the person on trial to go on the stand.
The prosecutor is already in the process of trying to prove that you are guilty beyond a reasonable doubt. You can bet that he/she will be asking questions that will only hammer that message home for the jury even further.
To trick you into saying something incriminating, the prosecutor may use leading questions. Before you’re even aware of what has happened, the jury may already be looking at you as completely guilty.
Defense lawyers typically don’t want their clients anywhere near the witness stand. The good news if you’re the defendant is, they can’t force you to take the stand against your will. You can invoke your Fifth Amendment rights to stay away from the witness stand.
Some defendants may want to take the stand anyway, even if their attorney advises against doing so. Just know that if you do decide to provide testimony as the defendant, you are opening yourself up to all questions. You cannot pick and choose which questions you answer and which ones you don’t.
When You Are on the Stand as a Witness
The other scenario in which you may need to invoke your Fifth Amendment rights is if they ask you to be a witness for a trial.
Now, if they ask you to take the stand to provide some expert testimony or you have no connection whatsoever to either of the parties, there’s probably no reason to worry. It would be hard to rope you into the case if you don’t know the accused party.
You need to be more cautious if you are a friend of the person on trial, though.
Unbeknownst to you, the prosecution may already be planning to put forth other cases once the ongoing trial has concluded. You may be someone the prosecution is eyeing, and they may only grow more suspicious of your innocence if you are on the witness stand defending someone who they believe is guilty.
The benefits of you providing truthful testimony on behalf of your friend could be substantial, but that could also be a risky move on your end. You don’t need to say that you “plead the fifth” in response to every question, but if you feel that your answer could be incriminating, relying on your constitutional rights is a valid option. If you aren’t sure if you should respond or not, seek some guidance from your attorney first.
Additional Notes about Pleading the Fifth
Pleading the fifth to avoid answering questions you don’t want to is possible in about every case. You can take that action in both civil and criminal trials.
Now, there is something you need to know about using this constitutional right if you are the defendant in the case.
In a criminal trial, jurors are not allowed to interpret the defendant’s refusal to testify as a sign of guilt. That is not the case in a civil case, though. Jurors can now interpret your reluctance to testify on your behalf as a potential indicator of your guilt.
To get around this problem, the defendants must choose their words carefully. Instead of saying they are pleading the fifth and potentially inviting further scrutiny from jurors, they can claim they do not remember the answer.
There is another big difference between pleading the fifth for people called in only as witnesses and those who are the defendants.
As noted above, the defendants cannot choose which questions they answer, but they can refuse to testify altogether. Witnesses do not have that same right, and they must testify as long as they have no reasonable objection to their subpoena.
Can You “Plead the Fifth” if They are Collecting Physical Evidence from You?
Since the Fifth Amendment allows individuals to refuse to testify, one would think it extended to other areas. You may be wondering if you could also cite that part of the constitution if you wanted to avoid providing physical evidence.
The Supreme Court has said that you cannot do that.
Previously, the Supreme Court has maintained that the right against self-incrimination afforded by the Fifth Amendment applies only to communicative evidence. You can use it with no issue to avoid potentially incriminating questions, but it will no longer prove useful to you if the authorities want to collect physical evidence.
Your fingerprints, your hair, and other sources of DNA are not covered by the Fifth Amendment.
What to Do if They Ask You to Provide Testimony
Testimonies are essential elements of legal proceedings. Lawyers use them to either show guilt or innocence, while jurors rely on them to come up with a verdict.
The legal system needs credible testimony to function properly.
As much as possible, though, you need to protect yourself before providing any kind of statement or testimony.
If the cops are the ones asking you to talk, you can refuse to do by invoking your right to remain silent. You can also ask them to contact your lawyer if they want you to start talking about a certain subject.
Inside the courthouse, guarding against self-incrimination can be harder because legal professionals are now involved, but don’t forget that the constitution can offer you valuable assistance.
Use your Fifth Amendment rights in the correct situation and save yourself from potential legal troubles that may arrive in the future. Knowing exactly when to use your Fifth Amendment rights is not easy, but there are ways to ensure that you avoid making mistakes.
Whether they ask you to serve as a witness or you’re the one on trial, you must hire a good attorney so that you can exercise your constitutional rights properly. Contact the Quirk Law Group and steer clear of possible self-incrimination.