You’ve no doubt heard people speak of “taking,” “claiming,” or “pleading” what’s known as “the Fifth.” These phrases refer to the Fifth Amendment to the U.S. Constitution—specifically, the privilege against self-incrimination mentioned in it. The Fifth Amendment also provides the basis for Miranda warnings or, put another way, the right to remain silent or the right to have questioning stopped.
What Does It Mean to Plead the Fifth?
When a person pleads the Fifth, they're exercising their constitutional right under the Fifth Amendment that provides “No person…shall be compelled in any criminal case to be a witness against himself.” Basically, this provision means the government can’t force people to answer questions that might implicate them in a crime. It doesn’t matter if the person is guilty or innocent—both are entitled to this protection.
By pleading the Fifth, the person chooses to remain silent. It’s the prosecution’s job (the government lawyer in criminal cases) to prove the defendant guilty, not the other way around. A defendant doesn’t need to establish their innocence and can choose silence.
Who Can Plead the Fifth?
The Fifth Amendment applies both in and beyond the courtroom. Outside the courtroom, a suspect who’s in police custody must be warned—before being questioned—of their right to remain silent and that anything they say can be used against him. Sound familiar? That's part of the Miranda warning. Inside the courtroom, the defendant has the right not to testify at all, and a witness who’s called to testify may (in appropriate circumstances) refuse to give answers that might incriminate them in a crime.
What Happens When a Defendant or Witness Takes the Fifth?
The Fifth Amendment gives criminal defendants the right to not take the witness stand at trial. If the defendant decides not to testify, the prosecutor cannot call the defendant as a witness (nor can the judge or defense for that matter). In a jury trial, the judge would then explain to the jurors that a defendant’s decision not to take the stand is not an admission of guilt. It’s the prosecution’s burden to prove the crime beyond a reasonable doubt; the defendant does not have to prove their innocence (and sometimes the best way to do this is to stay silent).
Witnesses can also plead the Fifth in appropriate circumstances. In grand jury proceedings, for example, witnesses who are called to testify but believe their testimony might incriminate them in a subsequent case can generally decline to answer. This privilege doesn’t give a witness free rein to refuse to answer every question—only when a response could give a prosecutor information or evidence that can be used against them.
Consult a Lawyer
If you’ve been arrested or charged with a crime, speak to a criminal defense attorney as soon as possible. Suspects who are in police custody should tell police—clearly and unequivocally—that they are invoking their right to remain silent and want a lawyer. Besides invoking these rights, it’s usually best not to say anything else until you’ve spoken with a lawyer.
For witnesses called to testify, speak to an attorney if you have questions regarding your privilege against self-incrimination. You’ll want to speak to the lawyer before going in front of a grand jury or trial jury so you can prepare yourself and understand your rights.