Criminal Attorneys Aren't Just for Criminals

Should You Plead The Fifth? Can You?

by Eva Holmes

Fifth amendment rights are a cornerstone of the United States justice system. But when you are in a situation to actually invoke these rights, it's important to know how, when, and why to do so — and when to reconsider this tool. To help you find this balance for yourself, here are a few key things to know about both 'pleading the fifth' and using your words. 

When and Why to Plead the Fifth 

There are two key elements of fifth amendment rights that everyone in a legal matter should keep in mind. First, it only applies to self-incrimination. So you can't refuse to answer questions under oath if required by subpoena to testify against a friend or family member. You may do so only if answering could lead to admitting some potentially criminal actions of your own. Second, this right only applies to criminal court rather than civil cases. 

Fifth amendment rights are mostly associated with testifying in your own trial. A defendant may refuse to take the witness stand, instead relying on their attorneys to fill in the blanks rather than risk self-incrimination. But don't forget that you can also invoke this right in depositions and on the witness stand at any other criminal proceeding. It should be done with the advice of an experienced lawyer. 

When and Why Not to Plead

If you can stay silent, should you ever speak? The answer is yes, but for very specific reasons. Some defendants are concerned that there will be an implication of guilt if they plead the fifth. Although the law stipulates that juries may not assume guilt based on what a person does not say under oath — rather, only on evidence presented — they may worry that unconscious bias may creep in. 

The second, and possibly more common reason is when you can get more benefit out of speaking up than you will from staying silent. If you refuse to take the stand in your own defense, you give up the right to tell your story to a judge or jury. In addition, a defendant who has information that prosecutors want in connection with other cases may be able to negotiate to their benefit with the value of their testimony. 

Where to Start

Should you use your fifth amendment rights or not? The answer depends on the specifics of your particular circumstances. Make the right decision by discussing your case with a local attorney in your state today.