Brian J Smith
All You Need to Know About Pleading the Fifth
“I plead the Fifth.”
How often have you heard that line of dialogue in a movie? Probably often enough that you have a vague idea of what it means. The scene usually takes place in a courtroom and it’s uttered by the person on trial who’s refusing to say anything else.
“The Fifth” is the Fifth Amendment to the United States Constitution. It states, in part, that no one on trial in a criminal proceeding “shall be compelled…to be a witness against himself.” In other words, you can’t be forced to self-incriminate or verbally admit guilt.
So no prosecuting attorney can make you take the stand and force you to admit to criminal activity. And jurors can’t interpret your decision to not testify, or to refuse to answer the questions by pleading the Fifth, as an admission of guilt. You have the constitutional right not to testify at trial as long as you don’t make one huge mistake.
No Picking and Choosing
The key to protecting your rights against self-incrimination is to plead the Fifth throughout proceedings. You can’t get on the witness stand and start answering all of the questions put to you, and then plead the Fifth at a point where you think your response might implicate you in a crime. You can’t “open the door” by answering some questions and trying to evade others. Either you take the Fifth throughout or not at all.
Don’t think you’re safe only answering your defense attorney’s questions either. If the prosecutor follows up on some of those answers in rebuttal you might find that you gave up your right to take the Fifth. For instance, if you tell your lawyer that you weren’t at the scene of the crime at the time it was committed, the prosecutor can later ask you where you were that day. You opened the door by addressing the subject.
Witnesses and Selective Pleading
Criminal court witnesses can also take the Fifth if they feel that their response might incriminate them in the crime for which the defendant is being tried—or even in another crime.
But they have a special advantage. Unlike the defendant, they can selectively plead the Fifth. So, they could answer every question posed to them by the prosecutor or defense attorney until they feel that answering a particular question will get them in trouble with the law.
However, they can only plead the Fifth to protect themselves, not the individual on trial or anyone else. So your brother could be compelled to provide testimony against you—just not against himself.
As you can see, the rules and strategy behind pleading the Fifth can get complicated. So always consult with your attorney before considering that or any other response if you’re about to go to trial.