Fifth Amendment Right Against Self-Incrimination – FindLaw

Even if youve never studied law or sat for a bar exam, you likely have heard the phrase pleading the Fifth. Its become part of our national lexicon, so most Americans know they have the right not to answer police questions both while in custody or in court. The right against self-incrimination is spelled out in the Fifth Amendment to the U.S. Constitution and also extends to state and local jurisdictions. When someone exercises this right, we often say that they plead the Fifth.

The Constitution grants this right quite simply: [No person]shall be compelled in any criminal case to be a witness against himself However, as with most other constitutional rights, it is subject to interpretation by the courts and often inspires fierce debate.

This article focuses on the self-incrimination clause of the Fifth Amendment in legal proceedings. For details about your right to remain silent while in police custody, check out FindLaws Miranda Rights section. See Double Jeopardy; How Does a Grand Jury Work?; and The Appeal, Writ, and Habeas Corpus Petition Process to learn about other provisions of the Fifth Amendment.

The right against self-incrimination is rooted in the Puritans refusal to cooperate with interrogators in 17th century England. They often were coerced or tortured into confessing their religious affiliation and were considered guilty if they remained silent. English law granted its citizens the right against self-incrimination in the mid-1600s, when a revolution established greater parliamentary power.

Puritans who fled religious persecution brought this idea with them to America, where it would eventually become codified in the Bill of Rights. Today, courts have found the right against self-incrimination to include testimonial or communicative evidence at police interrogations and legal proceedings.

At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendants own lawyer cannot force the defendant to take the witness stand against his or her will. However, a defendant who does choose to testify cannot choose to answer some questions but not others. Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial.

When a defendant pleads the Fifth, jurors are not permitted to take the refusal to testify into consideration when deciding whether a defendant is guilty. In the 2001 case Ohio v. Reiner, the U.S. Supreme Court held that a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The [Fifth Amendment right against self-incrimination] serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. This case beefed up an earlier ruling that prosecutors cant ask a jury to draw an inference of guilt from a defendants refusal to testify in his own defense.

Defendants may assert their Fifth Amendment rights during civil trials, too, if testimony would open them up to criminal charges. But they do not enjoy the same protections against jury bias with respect to liability. This means that ajury is free to make inferences when a defendant chooses not to testify in a civil trial for fear of self-incrimination. Civil defendants often claim ignorance (I dont recall) instead of pleading the Fifth in such situations.

At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment right not to testify. Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity (not limited to the case being tried). Witnesses (as well as defendants) in organized crime trials often plead the Fifth, for instance.

But unlike defendants, witnesses who assert this right may do so selectively and do not waive their rights the moment they begin answering questions. Also, unlike defendants, witnesses may be forced by law to testify (typically by subpoena).

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Fifth Amendment Right Against Self-Incrimination - FindLaw