Your Fifth Amendment Right Against Self-Incrimination

Most people have heard the term "pleading the Fifth," but may not know exactly what it means. The phrase refers to the Fifth Amendment of the United States Constitution, and "pleading the Fifth" means to invoke the right against self-incrimination.

What is the Fifth Amendment?

The Fifth Amendment is a part of the Bill of Rights that guarantees certain rights to those who have been accused of a crime. It protects against:

  • Being imprisoned, being put to death or having property confiscated without a trial
  • Being tried for the same offense twice
  • Having property taken for public use without fair compensation
  • Being charged for a crime without an indictment by a grand jury or a presentment
  • Being forced to testify against yourself or to say something that incriminates yourself

Miranda Rights

When most people imagine an arrest, they imagine arresting officer saying, "You have the right to remain silent. Anything you say can and will be used against you in a court of law." These rights, along with the right to an attorney, are known as Miranda rights and stem from the 1966 U.S. Supreme Court case Miranda v. Arizona. These words are based on the Fifth Amendment’s rights against self-incrimination and the Sixth Amendment's right to counsel. They must be told to suspects once they are taken into custody and before any police questioning occurs.

You can refuse to answer questions without a lawyer present, especially if your answers could lead to criminal charges. If you are not informed of your rights before questioning, any answers you give may be considered involuntary.

Protections for Testifying in Court

Defendants and witnesses (in both criminal and civil cases) have the option to avoid testifying in court. This right also applies to grand jury hearings, depositions and other proceedings.

Defendants in criminal trials cannot be forced to take the witness stand by prosecutors, judges or even their defense lawyer. If the defendant elects not to testify, the jury cannot consider the refusal when determining guilt or innocence.

Defendants in a civil case share the right to avoid testifying in court if it would lead to them being charged with a crime. However, unlike in criminal trials, the jury may take the refusal to testify into account when reaching a verdict. Additionally, if a witness or defendant in a civil trial elects to invoke their Fifth Amendment rights before trial, they may later be barred from presenting certain evidence.

Plus, a defendant who does agree to testify in court has effectively waived their Fifth Amendment right. This means that a defendant who has taken the stand can no longer refuse to answer specific questions, even if the testimony may be self-incriminating.

Who Can Refuse to Testify?

Defendants in criminal cases enjoy the protections of the right against self-incrimination. But witnesses can refuse to testify in some cases as well. If testimony could potentially lead them to face criminal charges, even charges that may be unrelated to the case, they may refuse.

Unlike the defendant in the case, however, witnesses can be forced to testify, usually with the use of a subpoena. Witnesses also do not entirely waive their rights when they take the stand. They may elect not to answer certain questions while answering others.

An example might involve a witness who saw a murder occur while breaking into the victim's home. If the witness answers questions about where they were or what they were doing at the time of the murder, the responses could lead to criminal charges. In such a case, the witness may refuse to answer those questions. However, the witness may elect to answer other questions about the murder.

Blood Tests and Fingerprints

While defendants can choose not to testify in court or answer incriminating questions, they cannot refuse the collection of fingerprints or DNA samples, such as hair or saliva. Neither type of evidence is considered testimonial, and the Fifth Amendment right against self-incrimination only applies to communicative evidence.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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