There are a lot of misconceptions about when a person can and cannot invoke their right to “plead the Fifth” or “take the Fifth” if they’re under questioning or charged with a crime. The U.S. Constitution’s Fifth Amendment says that no person “shall be compelled in any criminal case to be a witness against himself….”
When looking at a case from the outside, it can be easy to assume that if someone pleads the Fifth, they must be guilty. However, it’s important to know that if a defendant decides to testify in their own trial, they automatically waive that right against self-incrimination. They can’t answer some questions and assert their Fifth Amendment rights for others.
It should be noted that witnesses or others called to testify in a criminal case can invoke that right selectively. The reasoning behind that is that a person who is subpoenaed to testify in someone else’s case must comply. Because it’s illegal to refuse to testify when subpoenaed, a witness doesn’t have to answer a question if their answer may incriminate them.
Why would an innocent person plead the Fifth?
Whether you’re being questioned by police or testifying in a colleague’s white collar criminal case, you may be advised to plead the Fifth for your own protection. The U.S. Supreme Court has expanded the grounds for invoking this right.
It has ruled that a witness has the right to take the Fifth if they reasonably believe that their testimony could be a “link in the chain” of evidence to potentially prosecute them. In a 2001 ruling, the court stated that the Fifth Amendment “serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”
If you’re being questioned by law enforcement, regardless of the circumstances, it’s always wise to assert another right – the right to legal counsel — before answering any questions. With sound legal guidance, you can then determine if and when you should assert your Fifth Amendment right.