Pleading the Fifth Overview—What You Should Know

pleading the fifth

We have all seen it in movies. A mob boss is in court facing a criminal charge. The prosecuting attorney asks a witness or the defendant a question about the alleged crime. The only answer they receive in response is “I plead the Fifth.” The question is left unanswered.

The accused has a smirk on their face as though they have just gotten one over on the prosecution. Meanwhile, the prosecuting attorney has a look of frustration on their face as their case has hit a snag.

If you are facing a criminal charge and think of one of these movie scenes, you might find yourself wondering, What is pleading the Fifth? When can you not plead the Fifth? Or even, Is it wise to plead the Fifth?

Despite its use as a trope in courtroom dramas, most people do not understand how pleading the Fifth works in criminal proceedings. We prepared this piece to answer those questions and shed some light on how pleading the Fifth works in practice.

What Is Pleading the Fifth?

“Pleading the Fifth” refers to a situation wherein someone invokes The Constitution's Fifth Amendment right against self-incrimination in legal proceedings. We could spend a great deal of time unpacking the text of the Fifth Amendment into its various components, but for our purposes, there is one key element.

The Fifth Amendment protects those accused or suspected of committing criminal offenses from being “compelled in any criminal case to be a witness against himself.” In other words, the Fifth Amendment gives accused persons “the right to remain silent.”

Defendants plead the Fifth to avoid incriminating themselves in their own trials. Additionally, witnesses testifying in someone else’s criminal trial may plead the Fifth.

People can also plead the Fifth in civil court, but our focus here is criminal law. 

When Can You Not Plead the Fifth?

Knowing the answer to the question, When can you not plead the Fifth? is crucial if you are considering invoking the amendment. There are two classes of people who can plead the Fifth in a criminal trial. First, a witness who does not want to incriminate themselves by answering a specific question can plead the Fifth. For example, a witness might plead the Fifth if a prosecutor asks them about a drug deal that they were a part of.

In answering the question, the witness might incriminate themselves for drug possession or distribution, so they avoid answering it entirely. A person who receives immunity or a pardon for a given criminal offense cannot invoke the right to remain silent concerning that offense.

Defendants can also invoke the Fifth Amendment to avoid testifying against themselves in a criminal trial. Unlike witnesses, defendants cannot plead the Fifth to avoid answering specific questions. If a defendant pleads the Fifth, they cannot testify in their trial at all.

What Happens When You Plead the Fifth?

Pleading the Fifth might seem like a get-out-of-jail-free card that you can use in court, but there are consequences of pleading the Fifth. Pleading the Fifth is much more complicated than just saying the words “I plead the Fifth” and having the question go away.

You might have already thought of one issue with pleading the Fifth. You might think, If you plead the Fifth, do you not inadvertently criminalize yourself in doing so? Or, Does pleading the Fifth not signal that you are guilty of the crime in question, if not a separate crime? As with most questions in the legal field, the answer depends on the specific circumstances of the case.

Sometimes pleading the Fifth is the most prudent legal move you can make. Other times, pleading the Fifth is unnecessary and may hurt your case. The best way to gauge the impact of pleading the Fifth is to consult with an experienced criminal defense attorney. With their expert advice, you can balance the potential risks of pleading the Fifth against the potential rewards.

Your Silence Cannot Be Used Against You

One thing that readers should take away from this piece is that remaining silent cannot be used against you in court. You may think that pleading the Fifth inadvertently indicates guilt of a crime. After all, by pleading the Fifth, you all but admit guilt with respect to a crime.

While this may be a reasonable assumption, it is unconstitutional for juries, judges, or prosecutors to use your silence against you as evidence of guilt. If prosecutors could infer guilt on the basis of silence alone, it would undermine the purpose of the Fifth Amendment. 

Do You Think You Might Need to Plead the Fifth?

Whether you are facing a witness subpoena or a criminal charge, if you think you might need to plead the Fifth, don’t go through with it without consulting with an experienced criminal defense attorney. Instead, get in touch with our knowledgeable team of criminal defense attorneys at Cowboy Country Criminal Defense.

At our firm, we believe in giving power to the people. Our founder, Jeremy Hugus, believes that everyone deserves a fair trial. If you are considering pleading the Fifth, don’t wait until the day before your court date.

Call us today and tell us how we can help!

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