Understanding your right to ‘plead the Fifth’ in a criminal case

If you follow the news, you see it all the time: Someone being interrogated and refusing to answer by invoking their Fifth Amendment rights. Why can they refuse to answer? And what are they citing in doing so?

This is an important topic for anyone facing criminal charges or otherwise suspected of a crime. Therefore, it deserves some straightforward explanation.

What the Fifth Amendment says

The Fifth Amendment to the U.S. constitution lists several rights that we all have in criminal matters. These include the right to “due process” when charged with a crime, and protection against being tried more than once for the same offense (known as double jeopardy).

The right referenced in “pleading the Fifth,” however, is the protection against self-incrimination. The Amendment reads, in part, that no one “shall be compelled in any criminal case to be a witness against himself.” In simpler terms, this means that the government cannot force you to admit to a crime or to answer questions that would reveal your guilt.

When someone is arrested, police read a statement that begins: “you have the right to remain silent.” This refers to the Fifth Amendment protection against self-incrimination. If answering a question (either during police interrogation or during trial) will reveal or strongly suggest that you are guilty, you are not obligated to answer.

Does refusing to answer make you look guilty?

If you plead the Fifth, outside observers may assume you are guilty and that you have something to hide. There’s nothing you can do about public opinion. However, in a criminal trial, prosecutors are prohibited from saying anything to jurors that suggests they can assume guilt when the defendant pleads the Fifth.

Pleading the Fifth works differently in civil court

Although the Fifth Amendment states that the protection against self-incrimination applies to the criminal justice system, pleading the Fifth is also a common practice among defendants in civil cases. Unlike in criminal court, however, attorneys are allowed to tell jurors that they can make a “negative inference” based on someone’s refusal to answer.

What should you do if questioned by police?

If you’ve been arrested or detained, it is tempting to believe that you can explain your way out of trouble. This is generally not a good idea. Anything you say, any questions you answer, can become evidence against you. Therefore, it is important to consult with an experienced criminal defense attorney before deciding which questions – if any – to answer.