When a person “pleads the Fifth,” he or she exercises the right, under the specific terms of the Fifth Amendment of the U.S. Constitution, not to be a witness against himself. Though the language of the Fifth Amendment adds the clause “in any criminal case” at the end of the phrase, the United States Supreme Court has held that the same right applies in civil cases where the testimony might lead to criminal charges. For example, if a defendant in a breach of contract action might make statements that would support a criminal charge of fraud, the defendant may exercise the Fifth Amendment right not to testify. The right extends beyond the courtroom as well, protecting defendants during criminal investigations, including grand jury proceedings.
The language of the Fifth Amendment protects only testimony that is “compelled.” Statements made voluntarily do not enjoy any constitutional protection.
In order to “plead the Fifth,” a witness being questioned must affirmatively state that they are exercising the constitutional right, though no specific language is required. A person need only use language that reasonably expresses an intent to exercise the privilege.
Furthermore, the witness is the sole arbiter of whether the testimony is protected. A judge, prosecutor, or opposing counsel may not compel the testimony and then ask the court later to determine whether it is protected. In a criminal proceeding, if a defendant chooses to exercise rights under the Fifth Amendment, prosecutors may not make any reference to the refusal to testify, such as suggesting that the defendant’s silence is an admission of guilt. In a civil proceeding, though, such as a personal injury lawsuit, the jury is permitted to interpret a defendant’s silence or unwillingness to answer questions as evidence of fault or liability.
The Supreme Court has held that the self-incrimination clause applies only to private individuals and does not protect organizations or corporations.
The right against self-incrimination under the Fifth Amendment applies to two broad classes of individuals—defendants and witnesses. As a defendant, you can rely on the Fifth Amendment to simply refuse to take the stand at all. If you choose to take the stand as a criminal defendant, you must answer all questions and cannot selectively exercise the right in response to some questions. The right applies regardless of whether the defendant is guilty or innocent.
Unlike a criminal defendant, a witness may be compelled to take the stand and may plead the Fifth with respect to individual questions or with respect to all testimony.
When a defendant or witness refuses to testify, the prosecution must look for other witnesses to provide critical evidence. In situations where there are no other witnesses, the prosecution may have to build its case on circumstantial evidence, which is typically far less compelling to a jury, particularly when the jury must find guilt “beyond a reasonable doubt.”
As a defendant in a criminal proceeding, when you plead the Fifth, you give up the right to provide any testimony in your case, including evidence that might lead to acquittal. Additionally, even though the prosecution may not comment on your silence, the jury can still infer that your unwillingness to testify suggests some culpability.
The protection against self-incrimination set forth in the Fifth Amendment can be a two-edged sword and should be used only after consultation with an experienced attorney.