Pleading the Fifth: Your Rights Against Self-Incrimination

The Fifth Amendment of the Constitution of the United States of America grants you the right to be free from self-incrimination.

While you may never have had the opportunity to study the law, we bet you’re already familiar with some of these “technical” terms. This is of great importance, since, essentially, the Law represents your rights. One of the best known legal catchphrases is to “plead the Fifth”. You know, that scenario where the defendant chooses not to speak until he has a criminal defense lawyer present? “Pleading the Fifth” means that a person is invoking the protection of the Fifth Amendment of the Constitution of the United States of America during a testimonial. The suspect, or defendant, is invoking his constitutional right to refuse to testify if the answers are likely to incriminate him during a subsequent criminal case.

The Fifth Amendment “Amendment V” of the Constitution of the USA is dated from 1791. Its historical roots date back from 17th century interrogations in England when the Puritans refused to cooperate with English investigators, whom employed torture and coercion to force them to confess their religious affiliation. If they remained silent, they were considered guilty.

The right against self-incrimination is granted in a very simple manner amidst the 5th Amendment’s clauses: “[No person] … shall be compelled  in any criminal case to be a witness against himself …”. Though the Amendment text says “criminal case”, the Supreme Court has already ruled that it may be asserted during civil, administrative and legislative proceedings as well.

Pleading The Fifth Before Trial

The right against self-incrimination can also be invoked during criminal investigations, . The 5th Amendment prohibits police officers from:

  • Employing threats of violence, force, coercion or intimidation to obtain information or confessions;
  • Continuing with interrogation after the suspect has refused to speak until his criminal defense attorney is present;
  • Threatening to seize property or harm family members in order to obtain a confession.

If you’re under criminal investigation, you should never speak to law enforcement without an attorney present. Police officers undergo extensive training on interview techniques and, lets face it, their job is to get confessions. Many people are afraid to invoke their fifth amendment right because they fear it will make them “look guilty.” The reality is you already “look guilty” to the police or they would not be interrogating you. And, should you be charged and proceed to trial, the Fifth Amendment ensures the jury will never know you refused to speak with law enforcement without legal assistance. Having a defense attorney with you when being questioned by a highly trained law enforcement officer is not an expression of guilt, it is sound legal practice.

If you have already been through a situation where you have submitted to questioning by law enforcement, you need to make your criminal defense lawyer aware of that.

Pleading the Fifth during trial

At trial, a criminal defendant can choose not to testify, meaning that no one can force him to climb the witness stand, not the judge, not the prosecutor, not even the defendant’s criminal defense lawyer.

It should be noted that when a defendant pleads the 5th, the jurors are not permitted to consider the refusal to testify as a factor of presumption of guilt. There are many reasons why a defendant may not want to testify that have nothing to do with his guilt or innocence. And remember, the burden is always on the State to prove a defendant is guilty, a defendant never has to prove he is innocent.

However, if a defendant actually opts to testify, he can’t take the witness stand and choose which questions to answer. Once a defendant makes the choice to testify, it is understood that the defendant has waived his fifth amendment right to refuse to testify and must answer all questions posed to him.

Criminal attorney and the 5th Amendment

If you ever face a criminal investigation or prosecution, you definitely should seek for the advice of an experienced criminal lawyer. You should never speak with law enforcement without the assistance of a criminal defense lawyer, the risk is too great as one misspoken word could result in your being charged or convicted of a crime.

Disclaimer:As of this date, 1/14/16, all information within this article is accurate and does not establish an attorney-client relationship. Readers should not rely on this information as it is possible for laws to change.