What is not covered by the Fifth Amendment?

To "plead the Fifth" means you have the right not to answer police questions both while in custody or in court. The right against self-incrimination is spelled out in the Fifth Amendment to the U.S. Constitution and also extends to state and local jurisdictions. When someone exercises this right, we often say that they "plead the Fifth."

What Does It Mean to Plead the Fifth?

In addition to the right against self-incrimination, the provisions of the Fifth Amendment provide many important safeguards for Americans, including the right to remain silent while in police custody, writs of habeas corpus, and double jeopardy protection.

The Constitution grants this right, where: "[No person]…shall be compelled in any criminal case to be a witness against himself…" However, as with most other constitutional rights, it is subject to interpretation by the courts and often inspires fierce debate.

The Origin of Pleading the Fifth

The right against self-incrimination is rooted in the Puritans' refusal to cooperate with interrogators in 17th century England. Some were coerced or tortured into confessing their religious affiliation and were considered guilty if they remained silent. English law granted its citizens the right against self-incrimination in the mid-1600s, when a revolution established greater parliamentary power.

Puritans who fled religious persecution brought this idea with them to America, where it would eventually become codified in the Bill of Rights. Today, courts have found the right against self-incrimination to include testimonial or communicative evidence at police interrogations and legal proceedings.

Testifying in a Legal Proceeding

At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant's own lawyer cannot force the defendant to take the witness stand against their will. However, a defendant who does choose to testify cannot choose to answer some questions but not others. Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial.

When a criminal defendant pleads the Fifth, jurors are not allowed to take the refusal to testify into consideration when deciding whether a defendant is guilty. In the 2001 case Ohio v. Reiner, the U.S. Supreme Court held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The [Fifth Amendment right against self-incrimination] serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."

This case beefed up an earlier ruling that prosecutors can't ask a jury to draw an inference of guilt from a defendant's refusal to testify in their own defense.

Defendants (and other witnesses) may assert their Fifth Amendment rights during civil trials, too, if testimony would open them up to criminal charges. But defendants in civil trials do not enjoy the same protections against jury bias with respect to liability. This means that a jury is free to make inferences when a defendant chooses not to testify in a civil trial for fear of self-incrimination.

Can Any Witness Plead the Fifth?

At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment right not to testify. Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity (not limited to the case being tried). Witnesses (as well as defendants) in organized crime trials often plead the Fifth, for instance.

But unlike defendants, witnesses who assert this right may do so selectively and do not waive their rights the moment they begin answering questions. Also, unlike defendants, witnesses may be forced by law to testify, typically by subpoena.

Does the Fifth Amendment Apply to Fingerprints and Blood Tests?

The Fifth Amendment right against self-incrimination does not extend to the collection of DNA or fingerprints in connection with a criminal case. The Supreme Court has held the privilege extends only to communicative evidence, and DNA and fingerprint evidence is considered non-testimonial.

If you have additional questions about your Fifth Amendment right against self-incrimination, or need representation, consider calling a criminal defense attorney.

Getting Legal Help with Your Fifth Amendment Questions

Legal proceedings can be tricky to understand, especially if it's your first time in the criminal justice system. If you have questions about your Fifth Amendment rights, or you're facing criminal charges, you may want to contact an experienced criminal defense attorney near you to ensure that these, and other critical rights, are protected.

The Fifth Amendment to the U.S. Constitution guarantees that an individual cannot be compelled by the government to provide incriminating information about herself – the so-called “right to remain silent.”  When an individual “takes the Fifth,” she invokes that right and refuses to answer questions or provide information that might incriminate her.

The Fifth Amendment can be invoked only in certain situations.

• An individual can only invoke the Fifth Amendment in response to a communication that is compelled, such as through a subpoena or other legal process.
• The communication must also be testimonial in nature. In other words, it must relate to either express or implied assertions of fact or belief.  For example, a nod would be considered a testimonial communication for purposes of the Fifth Amendment.  So would the act of producing documents or any other piece of evidence; the act of production communicates an implied assertion that the individual possessed the evidence.
• Finally, the testimony must be self-incriminating, such that the information would provide a link in the chain of evidence needed to prosecute the individual for a crime. Thus, the information itself need not be incriminating; it suffices that the information would lead to the discovery of incriminating evidence.

Because the communication must be self-incriminating, an individual who has received immunity cannot invoke the Fifth Amendment as a basis for refusing to answer questions; any statements would not be incriminating because the immunity prevents the government from using those statements (or any evidence derived from them) in a criminal prosecution against the individual.  Likewise, an individual who has received a pardon may not have any basis for invoking the Fifth Amendment.  Finally, an individual who has been convicted of a crime and sentenced cannot invoke the Fifth Amendment.

When an individual takes the Fifth, her silence or refusal to answer questions cannot be used against her in a criminal case.  A prosecutor cannot argue to the jury that the defendant’s silence implies guilt.  And prosecutors typically cannot even call a witness before the grand jury if the prosecutor knows the witness will invoke the Fifth Amendment. 

But taking the Fifth can have severe consequences nonetheless.  In a civil case or a civil enforcement action, the judge or jury can draw an adverse inference to support liability when the defendant invokes the Fifth Amendment.  And an employee who invokes the Fifth Amendment in response to questions from federal agents who are investigating corporate wrongdoing might be fired as a result.

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