The United States Constitution provides a safeguard against self-incrimination. This is denoted by
the 5th Amendment, which is the right against self-incrimination. The phrase ‘I plead the 5th’; is a
famous phrase used in courtrooms or by accused persons while in custody to avoid self-
incrimination. However, as with other Constitutional Rights, it is subject to interpretation and
inspires fierce debates.
What does it mean? Does pleading the Fifth suggest you are guilty? What are the consequences?
When can you plead it? These are crucial questions that we will answer. Here is a breakdown of
the core ideas underlying the 5th Amendment to help you gain insight.
What does it mean to invoke/plead the Fifth?
When you “plead the 5th ” or invoke your right against self-incrimination, you are basically invoking
the right to remain silent. The U.S Constitution safeguards this right in the Fifth Amendment, thus
the phrase “taking the Fifth’. When invoked, the government cannot compel you to give evidence
against yourself of self-incriminating information. You must also be advised of this right if you are
ever investigated for a crime or arrested for a crime; you must be advised of your right to remain
silent by being given your “Miranda” warning. Miranda v. Arizona, 384 US 436 (1966)
When can it be invoked?
The following situations allow you to plead the Fifth Amendment.
Compelled Communication: Communication plays a key role when it comes to invoking the Fifth
Amendment. Therefore, responses to communication that is compelled form the basis for invoking
the Fifth Amendment. A good example is when you have been subpoenaed or through any other
Testimonial Communication: The nature of the communication must be testimonial. This means
that it must relate to either express or implied assertions of fact or belief. An excellent example of
this is through nodding or producing documents in court which gives the implied impression that
you actually possess the evidence. Thereby, in such a situation, the Fifth Amendment may be
Self-incriminating testimony; Your testimony ought to be self-incriminating to the effect that it
links you to evidence that may lead to your prosecution. This is also true if the information would
lead to a discovery of self-incriminating evidence.
Who can’t plead?
Convicts: A convicted person who has been sentenced cannot plead the Fifth Amendment when
asked about the crime for which they have already been convicted.
Individuals with immunity: These persons have no basis for invoking the Fifth Amendment since
the statements they make cannot suffice as incriminating due to the immunity accorded to them
by the government.
Pardoned Individuals: Likewise, if you have been acquitted, then you lack any basis for invoking
Does pleading the 5th mean you are Guilty?
No! Pleading the 5th simply means that you recognize your right not to answer questions;
therefore, your silence cannot be used against you in a criminal case. Also, the provision dictates
that the prosecution cannot intimate to the jury that your silence implies guilt. Again, by virtue of
the Fifth Amendment, a prosecutor cannot allow a witness to take the stand in front of a grand
jury if the witness can invoke the Fifth Amendment.
Are there consequences?
Indeed, there are severe consequences associated with pleading the Fifth. This is especially true in
civil cases where the judge or jury can draw an adverse inference against you, which may render
you liable. Also, employees end up being fired if they plead the Fifth in response to federal agents’
questions investigating corporate crimes.
Criminal charges can really affect your records. If you need a Criminal Defense Attorney in
North Charleston, contact us at Duffy Law Firm for a consultation.