What Does It Mean to 'Plead the Fifth'?

You've likely seen someone "plead the Fifth" in a movie or TV show. They might go silent or refuse to answer questions.

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“Taking the Fifth” is an option for defendants in certain cases and is related to the Fifth Amendment of the U.S. Constitution. But what does it actually mean to invoke the Fifth Amendment?

When you plead the Fifth, you're essentially refusing to answer a question with protection from the Fifth Amendment. It applies when the answer you would give could incriminate you and result in you admitting to a crime. You can plead the Fifth if the information is incriminating in any way. You don't have to confess directly to a crime. You could plead the Fifth if the answer to the question would provide information that connects the dots and gives the prosecution evidence or leads them to evidence they need to prosecute you for a crime.

Pleading the Fifth is possible during a criminal trial when you're the defendant and don't want to testify at your trial. In this situation, you must decide to plead the Fifth before you take the stand. Once you take the stand, you're required to answer all questions honestly — you can't selectively plead the Fifth for certain questions. The judge and jury can't assume your silence is an admission of guilt in a criminal case.

You can also plead the Fifth if you're a subpoenaed witness in a criminal trial, and you could self-incriminate by answering a question that you're asked. This right is a little different for witnesses — they can be selective and take the Fifth for certain questions while still answering others. If you're subpoenaed, you can't refuse to take the stand under the Fifth Amendment the way the defendant can. You'll have to take the stand and refuse individual questions that could result in self-incrimination.

The Fifth Amendment rights can also apply in civil cases. Parties in the civil case can refuse to answer questions under this amendment if the information could potentially lead to criminal charges. It can be selective, with the person refusing only to answer certain questions. However, in civil cases, the judge or jury can assume not answering implies liability, which could affect the outcome of the civil case.

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What Is the Fifth Amendment?

The Fifth Amendment includes several rights protecting people who are accused of criminal activities. One of those rights is that the government can't force you to incriminate yourself. This right typically only applies to testimony. You could still be forced to submit blood samples or fingerprints since those things are typically considered to be non-testimonial. The Fifth Amendment also grants the right to a grand jury and addresses double jeopardy, which prevents you from being prosecuted again for the same crime after being acquitted or convicted.

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Is Pleading the Fifth a Good Strategy?

Pleading the Fifth can be an effective strategy in some cases, but it could also hurt your case, especially if it's a civil case where the court can make assumptions about your silence. Pleading the Fifth could make you look guilty, or like you're hiding something, and it could make you lose credibility. However, in criminal cases, the judge and jury aren't supposed to make assumptions based on you choosing to plead the Fifth.

If you're on trial for a criminal matter, working closely with an experienced attorney is a good idea. Your lawyer can help craft a defense that increases your chances of being found not guilty. When you're on trial, pleading the Fifth means you can't take the stand at all. You could miss the opportunity to share your side of the story, including information that could work to your advantage. Deciding whether to plead the Fifth depends largely on the situation and what other defense strategies your lawyer has, such as experts, physical evidence and witness accounts, that could prove your innocence.