Fifth Amendment Right Against Self-Incrimination

To "plead the Fifth" means you have the right not to answer police questions while in custody or court. The right against self-incrimination is spelled out in the U.S. Constitution's Fifth Amendment. This right extends to state and local jurisdictions. When someone exercises this right, they are said to have "pled the Fifth."

What Rights Does the Fifth Amendment Guarantee?

The provisions of the Fifth Amendment provide many important safeguards for Americans. These include writs of habeas corpus, due process of law, and double jeopardy protection. It also guarantees the right to a grand jury indictment. A grand jury reviews law enforcement's accusations against a defendant, as presented by the prosecution. If the grand jury finds that there is "probable cause" that the crime was committed, they will inform the court, and an indictment will be issued against the defendant.

Additionally, the Fifth Amendment gives citizens the right to remain silent during police custody. The 1966 Supreme Court case, Miranda v. Arizona, established Miranda rights. Police must give a suspect who is in police custody their Miranda warnings before they can begin interrogations. Miranda warnings also apprise a suspect of their Sixth Amendment right to counsel.

The Fifth Amendment used to only apply in federal courts. However, later amendments to the U.S. Constitution changed this. The Fourteenth Amendment applied the protection to state courts. In Malloy v. Hogan, the Supreme Court held that the Fifth Amendment protects criminal defendants from self-incrimination in state court.

The Origin of Pleading the Fifth

The privilege against self-incrimination is rooted in the Puritans' refusal to cooperate with interrogators in early 17th-century England. Some were coerced or tortured into confessing their religious affiliation. Others were considered guilty if they remained silent. Rights against self-incrimination in English law were not formally recognized until much later.

Puritans who fled religious persecution brought this idea with them to America. The Framers memorialized the right in the Bill of Rights in the United States Constitution. Courts have since extended the right to different situations. For example, the right extends to statements made during police interrogations.

Testifying in a Legal Proceeding

In a criminal case, the Fifth Amendment gives a criminal defendant the right not to testify. This means no one can force the defendant to take the witness stand against their will. A defendant can choose to testify in a criminal trial. If they choose to take the stand, in general, they cannot choose to answer some questions but not others. Once they take the stand, it constitutes a waiver of their Fifth Amendment rights throughout the trial.

Jurors cannot consider a criminal defendant's refusal to testify when deciding whether a defendant is guilty. Put another way, the jury cannot make an adverse inference due to the defendant's silence. The U.S. Supreme Court has held, in a case originating in New York, that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The [Fifth Amendment right against self-incrimination] serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."

Can Any Witness Plead the Fifth?

In a criminal prosecution, witnesses can also plead the Fifth. Witnesses called to testify can refuse to answer certain questions. They are allowed to do so only if answering would implicate them in criminal activity. Witnesses in organized crime trials often plead the Fifth, for instance.

Unlike defendants, witnesses who assert this right may do so selectively. They do not waive their rights the moment they begin answering questions. Also, unlike defendants, witnesses may be forced by law to testify. For example, a court order called a subpoena may require them to testify.

Does the Fifth Amendment Apply to Fingerprints and Blood Tests?

The Fifth Amendment protection against self-incrimination does not extend to DNA or fingerprints. The Supreme Court has held the privilege extends only to communicative evidence. DNA and fingerprint evidence are considered non-testimonial. Therefore, you cannot plead the fifth when police request to fingerprint you.

Getting Legal Help with Your Fifth Amendment Questions

Criminal proceedings and criminal procedure can be difficult to understand. If you are facing criminal charges, you may want to contact an experienced criminal defense attorney. An attorney can provide you with legal advice regarding the following:

• General information about criminal law and the criminal justice system
• Your Fifth Amendment privilege against self-incrimination
• Whether pleading the Fifth is recommended in your criminal case
• Other constitutional rights

Contact a criminal defense lawyer near you to protect your rights.