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What Does it Mean to Plead the Fifth?

fifth, San Jose criminal defense attorney

You may have seen in movies or on television where a criminal suspect is being questioned and he or she responds with the statement, “I plead the Fifth.” The topic has also resurfaced in regard to the ongoing investigations into the most recent presidential election. Most people vaguely understand that the “Fifth” in question refers to the Fifth Amendment to the U.S. Constitution. Beyond that, however, pleading the Fifth is a practice that is commonly misunderstood, even by those who have been arrested and charged with a crime.

The Fifth Amendment

The Fifth Amendment was ratified in 1791 as part of the Bill of Rights. It provides a number of protections regarding criminal proceedings, including the promise that no person should be “deprived of life, liberty, or property without due process of law.” The Fifth Amendment also provides that an individual cannot “be compelled in any criminal case to be a witness against himself.” This clause provides the basis for what we now call pleading the Fifth.

The Right to Remain Silent

Before a person can be interrogated subsequent to arrest, he or she must be given the Miranda warnings, which are a series of statements intended to remind a suspect of his or her constitutional rights. The first such statement informs the suspect that he or she has the right to remain silent. This right has its basis in the Fifth Amendment, as the suspect cannot be forced to provide information that would incriminate himself or herself. While a suspect may invoke the right to remain silent, doing so is not usually what most people consider pleading the Fifth.

Pleading the Fifth at Trial

Once a criminal case has reached the trial stage, a defendant still has the right to remain silent. In most cases, however, a defendant who chooses to exercise this right will simply refuse to testify. Since he or she cannot be forced to provide self-incriminating evidence, the defendant will often not take the stand. Judges and juries in criminal trials are not permitted to use the suspect’s silence as an admission of guilt.

It much more common, however, for a witness who is not the primary defendant to plead the Fifth at trial. The Fifth Amendment prevents a witness from being forced to provide self-incriminating testimony, but it does not prevent a witness from being forced to testify regarding the defendant. This means that the judge can order a witness to answer questions about his or her own actions, the defendant, or the defendant’s actions. The witness may plead the Fifth if there is fear that truthful answers would put the witness in danger of criminal prosecution.

Questions About Your Rights?

If you or someone you love has been arrested and charged with a crime, it is crucial to understand your constitutional rights. Contact an experienced San Jose criminal defense attorney to discuss your case and to explore your available options. Call 408-277-0377 for a confidential consultation today.

Sources:

https://www.washingtonpost.com/news/the-fix/wp/2018/04/25/trumps-past-comments-about-pleading-the-fifth-look-pretty-ominous-now/

https://www.law.cornell.edu/supct/html/00-1028.ZPC.html