THE MYTH OF THE FIFTH - We have all heard “I plead the Fifth” on TV, but what does it really mean?
Most people have a vague idea of what this means. On TV this scene typically happens in a courtroom and it is said by the person on trial who is refusing to say anything else. But in reality, what “pleading the fifth” really means can be complex and something you need to discuss with an experienced attorney.
“The Fifth” is the Fifth Amendment to the United States Constitution. It states that no one on trial in a criminal proceeding “shall be compelled…to be a witness against himself.” In other words, you cannot be forced to self-incriminate or verbally admit guilt. The Fifth Amendment may be invoked by a witness in a criminal or civil court who chooses not to answer a question because it may tend to incriminate him or her.
To make a long history of a complicated amendment short, pleading the Fifth means that you cannot be forced to say anything that can be used against you. You also cannot be forced to testify if what you would say could be used to argue you are guilty of a crime. Fifth Amendment protections are offered at both the federal and state levels.
Typically, only two groups can plead the fifth:
- A defendant who is being charged with a crime and is refusing to testify in their own trial.
- A witness who is subpoenaed to provide a testimony in a criminal trial and is refusing to answer
specific questions if their answers could be self-incriminating.
The Fifth Amendment can be invoked only in certain situations.
-An individual can only invoke the Fifth Amendment in response to a communication that is
compelled, such as through a subpoena or other legal process.
-The communication must also be testimonial in nature. In other words, it must relate to either
express or implied assertions of fact or belief.
-Finally, the testimony must be self-incriminating, such that the information would provide a link in
the chain of evidence needed to prosecute the individual for a crime. Thus, the information itself
does not need to be incriminating; it is enough that the information would lead to the discovery
of incriminating evidence.
HOW DO I KNOW I SHOULD PLEAD THE FIFTH?
This is a question we often get and one that needs to be discussed with your attorney in detail and as soon as possible when you are facing criminal charges.
Generally speaking, throughout any investigation of your case the less you say the better. However, when it comes to speaking in court, whether it is or is not a good idea to use the Fifth Amendment varies greatly from case to case.
The Fifth Amendment can prevent you from incriminating yourself while on the stand and under oath, but in some cases it can also have a negative effect on the jury. Unfortunately, in our jury system some jurors think “why wouldn’t a person take the stand and tell their story if he or she were innocent?” But this is most definitely not always the case. This is one of the many reasons why you need the advice of counsel.
While juries are instructed by the court not to consider the implication of a defendant invoking their fifth amendment rights, it is human nature to be curious why a person would choose not to publicly defend themselves. Even if doing so does not affect them directly, it could have an indirect bearing on their opinion of you.
One may be tempted to plead the fifth during trial; but you should only do this with the express legal advice of your attorney. Pleading the fifth is an all or nothing right. This means that you cannot choose which question to answer or not. When asserting the fifth, the defendant must either assert his fifth amendment right or not once taking the stand.
If you’d like to know more about your Fifth Amendment rights or you have questions about how the Fifth Amendment applies to your case, contact Jones Law Firm for a free consultation. Please text or call us at (414) 774-6000 or email at laura@jlfwisconsin.com anytime.
*Any articles in the Libra or posted by Jones Law Firm LLC are not legal advice for a particular client or situation. Further no attorney-client relationship is intended or created with this post.*
