What does it really mean to “take the fifth”?: mololamken llp (ml) law firm / attorneys

A constitutional primer if you’re in the position to lớn submit lớn questioning

By Benjy Schirm on April 30, 2018Updated on February 7, 2021


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A witness is on the stvà in the final day of a high-protệp tin trial. The prosecutor, zeroing their questioning on the crux of their case, gets ever closer to incriminating the accused. The drama at its peak. Months of investigation have sầu led up lớn this question. News cameras roll & the jury breathlessly looks on as the witness answers: “I plead the Fifth.”

This phrase has come up time và time again, but what does it mean and why does it happen?

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The United States Constitution has protections for citizens khổng lồ prevent the government from overstepping its powers. The Fifth Amendment states, “No person … shall be compelled in any criminal case khổng lồ be a witness against himself.” This phrase protects people only in a criminal trial setting và only to lớn the extent that they cannot be compelled to testify against their own interests.

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This protection is a narrowly tailored shield. It only protects someone in very specific contexts. Only as a witness, in a criminal trial setting, or while being interrogated by a member of the government, can this protection be invoked. It is very similar to lớn the protections given through Miranda rights. This ability khổng lồ remain silent when being questioned, & your right to lớn invoke the Fifth Amendment privilege of speaking to lớn an attorney, are all protections granted by the Constitution.

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Technically speaking, if one invokes their right to counsel, they are not “pleading the Fifth.” While one is using the Fifth Amendment protections afforded them under the law, the only place that someone can “plead the Fifth” is on the stand in a criminal trial setting.

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This is an important distinction to lớn make, because pleading the Fifth does not stop police from questioning someone in an investigation. Invoking the right lớn counsel, however, may stop the police from questioning a suspect or witness until their attorney is present. One must invoke that right clearly and unequivocally. (Unlượt thích the Louisiana suspect in 2017, who allegedly said, “just give sầu me a lawyer, dog,” which the state supreme court ruled was not an unambiguous invocation of his right lớn counsel.)

Those accused of a crime are rarely put on the stvà khổng lồ testify in their own trial, yet this is where pleading the Fifth is relevant. However, in the example of a conspiracy trial, a witness may be called upon to testify against alleged co-conspirators. If by answering questions under oath that witness implicates themselves in a crime, which prosecutors could later use as evidence in charging them with a crime, they may “plead the Fifth.”

If you find yourself in any of these situations, you need an experienced criminal defense attorney. Stop talking lớn the police và unambiguously invoke your right to speak to a lawyer. If you are served a subpoemãng cầu to be a witness in a criminal proceeding, it is in your best interest to consult with an attorney khổng lồ understand your rights. For more information on this area of law, see our civil rights overview.


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