What does it mean to “take the Fifth” in one’s defense?

One of the most widely known phrases from American criminal law is “pleading the Fifth.” While many people in Massachusetts are familiar with the phrase, very few know exactly what the phrase means. The phrase refers to the Fifth Amendment to the United States Constitution, and “pleading the fifth” means that a defendant or a witness is invoking that amendment as the ground for refusing to testify in a state or federal criminal trial.

The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself.” This phrase is often referred to as the right to avoid self-incrimination. The right arose during the 17th century in England. Many people were coerced or tortured into confessing their religious affiliation; silence was treated as an admission of guilt. When the Puritans and other religious sects fled to America, they were determined to establish the right of witnesses to refuse to testify if the answer might incriminate them. This right eventually became codified in the Fifth Amendment.

The right against self-incrimination protects more than just testimonial silence. No one can force a witness to testify, and a prosecutor cannot use a witness’s refusal to testify as evidence of guilt. In addition, the jury may not consider the refusal to testify when it determines whether the defendant is guilty. Once a defendant takes the stand and begins to testify, the Fifth Amendment privilege is entirely waived. The defendant cannot answer some questions and refuse to answer others. However, witnesses criminal trials can invoke the privilege for some questions and not others, unless subpoenaed.

Invoking the Fifth Amendment may involve a number of complex procedural questions. Anyone who may be compelled to testify may wish to consult a knowledgeable criminal defense attorney for advice on the effect of invoking the privilege.

Source: FindLaw, “Fifth Amendment Right Against Self-Incrimination,” accessed on March 18, 2018