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The Right to Invoke the Fifth Amendment in a Federal Case

Posted by Dmitry Gorin | Jul 25, 2023

What does it mean to “take the Fifth?” The Fifth Amendment to the United States Constitution guarantees that the government cannot compel someone to provide incriminating information about themselves. This is the infamous “right to remain silent” phrase so often used.

Simply put, when somebody “takes the Fifth,” they invoke that right and refuse to answer questions or provide information that might incriminate them.

Fifth Amendment
The Fifth Amendment guarantees that you do not have to make incriminating statements.

We often hear about or see depictions of people "pleading the Fifth" during interrogations, whether at Congressional hearings or during a trial—invoking their rights under the Fifth Amendment not to testify against themselves.

There's often a negative connotation associated with "pleading the Fifth,"—suggesting that the person in question is guilty and simply trying to avoid accountability.

The Fifth Amendment protection against forced self-incrimination is one of the most essential and powerful rights the U.S. Constitution provides. When invoked strategically as part of a larger defense strategy in a federal criminal case, "pleading the Fifth" can significantly impact your case's overall outcome.

Notably, the Fifth Amendment can be invoked only in certain situations, such as in response to a compelled communication, such as through a subpoena or other legal process.

Also, the communication must be testimonial in nature, such as it relates to express or implied assertions of fact or belief or producing documents or other pieces of evidence, which is an implicit assertion they possess it.

Further, the testimony must be self-incriminating, such as information that would provide evidence needed to prosecute them for a crime. Let's review further below.

Overview of the Fifth Amendment

The protection against self-incrimination is just one of the rights afforded by the Fifth Amendment.

The full text reads, "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

This paragraph contains multiple rights for citizens, especially regarding being accused of a crime. These rights include the following:

  • Right to a Grand Jury: In serious criminal cases, an individual has the right to have their case reviewed by a grand jury before being charged. This is to ensure there is enough evidence to warrant a trial.
  • Protection against Double Jeopardy: An individual cannot be tried twice for the same crime in the same jurisdiction. This prevents the government from repeatedly prosecuting individuals until they are found guilty.
  • Right against Self-Incrimination: Often referred to as "pleading the Fifth," this right allows individuals to refuse to answer questions or make statements that could potentially incriminate them.
  • Right to Due Process: This ensures that individuals receive fair treatment through the normal judicial system, especially with respect to life, liberty, and property. It requires that the government respects all legal rights owed to a person according to the law.
  • Protection against Taking of Property without Just Compensation: This right states that if private property is taken for public use, the owner must be compensated fairly. This is often invoked in cases of eminent domain.

What Are the Possible Reasons to Plead the Fifth?

The term "pleading the Fifth" isn't just about refusing to answer questions; it means you cannot be forced to say anything that may be used against you in court or to testify if your statements could incriminate you—regardless of your guilt or innocence.

Contrary to popular belief, invoking the Fifth is not only for those guilty of a crime. In some situations, an innocent person might have valid reasons to plead the Fifth.

Innocent people can, and often should, invoke their Fifth Amendment protection. A defendant's refusal to testify cannot be used against him. The jury is instructed to draw no adverse conclusions from this fact. Examples might include, but are not limited to:

  • Fear of Being Misinterpreted: Even truthful statements can sometimes be taken out of context or misinterpreted. An innocent person might choose to plead the Fifth to avoid the risk of their words being misconstrued and used against them.
  • Avoidance of Perjury: If an individual has previously made a statement about an event, and their memory of the event has since changed, they might plead the Fifth to avoid making contradictory statements that could be construed as perjury.
  • Protection Against Unrelated Offenses: An individual might plead the Fifth if answering questions truthfully could reveal information about an unrelated offense for which they could be prosecuted.
  • Complexity of Legal Language: Legal proceedings and language can be complex and challenging to navigate. An innocent person may plead the Fifth to avoid the risk of saying something that could unwittingly harm their case or legal standing.
  • Legal Counsel Advice: Sometimes, attorneys advise their clients to plead the Fifth until they understand the situation better or have developed a comprehensive defense strategy.

Are there Situations Where the Fifth Amendment Does Not Apply?

Yes. Your right to invoke the Fifth Amendment does not apply in certain situations, and you must answer questions. These include:

  • When you're granted immunity. If the prosecution has offered you immunity, you're already under an agreement that your statements won't be used against you, so the Fifth Amendment doesn't apply.
  • If you've been pardoned. If you're compelled to testify after receiving a pardon for a crime, the Fifth Amendment becomes irrelevant for statements about that crime.
  • After you've volunteered the information. Once you voluntarily testify on a matter, you typically cannot invoke your Fifth Amendment privilege regarding that topic. Therefore, always consult with your attorney before deciding to testify.

Does the Fifth Amendment Only Apply to Trials?

No. The Supreme Court ruled Fifth Amendment also applies outside a criminal court. For example, it applies when someone is forced to make a statement that could be used to incriminate him, such as the following:

  • Police interrogations;
  • Grand jury proceedings;
  • Testimony before Congress;
  • Civil depositions or trials;
  • Traffic stops;
  • After an arrest.

Further, you can refuse to talk to federal agents or the police, but recall that the Fifth Amendment to remain silent only applies to custodial situations.

Does the Fifth Amendment Only Apply to Trials?
Contact our federal defense lawyers for advice.

Suppose you are free to leave or stop the questioning at any time. In that case, it would not be considered a setting for purposes of the right to remain silent, but you have the right to decline to speak to agents, and there are numerous valid reasons why you should exercise that right.

You can invoke the Fifth before a grand jury, a group of 16 to 23 people impaneled to investigate cases and issue indictments.  The prosecutor will present witnesses, documents, and other evidence to the grand jury, and it decides if there is probable cause to indict someone.

Sometimes, you can invoke the Fifth Amendment to produce documents in response to a subpoena (the act of production privilege) because the act of production itself can indicate guilt. You can contact our law firm by phone or via the contact form for a case review. Eisner Gorin LLP has offices in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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