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What you should know about the Fifth Amendment

On Behalf of | Oct 7, 2023 | Criminal Defense

It’s easy to assume that anyone who “pleads the Fifth” must be guilty of some kind of criminal wrongdoing. After all, this is the common way of saying that you invoke your Fifth Amendment right against self-incrimination. In the words of the Founding Fathers, no one “shall be compelled in any criminal case to be a witness against himself….”

The Fifth Amendment protects people from having to testify in their own criminal case. In fact, jurors are instructed not to consider a defendant’s decision not to testify as evidence that they’re guilty of a crime.

Testifying as a defendant vs as a witness

Why can’t a defendant take the stand and just plead the Fifth to some questions and answer others? That’s just how the law works. Once they start talking, they’ve waived their Fifth Amendment rights.

Witnesses, on the other hand, can plead the Fifth to specific questions while answering others. If they’ve been granted immunity for their own offenses by prosecutors, however, that typically so they’re not afraid to discuss their own illegal actions. Often prosecutors will grant immunity to people who have committed lower-level offenses than the person on trial is charged with in order to use the evidence they can provide against the defendant.

How the Supreme Court has destigmatized the Fifth Amendment

Even if what a person has to say doesn’t directly incriminate them, they can do so if they reasonably believe that it could be a “link in the chain” that could help prosecutors charge them with a crime. That was a ruling back in 1951 by the U.S. Supreme Court.

Fifty years later, the court elaborated that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing.” It noted that the Fifth Amendment “protects the innocent as well as the guilty.”

In situations where you’re being interrogated by law enforcement, it’s better to say you invoke your right to remain silent. This is also part of your Fifth Amendment protections. 

It’s a lot to remember, and people too often err on the side of talking when they shouldn’t. That’s why whether you’re being interrogated by police or facing the possibility of testifying, it’s important to first get legal guidance.