You’ve no doubt heard people speak of “taking,” “claiming,” or “pleading” what’s known as “the Fifth.” These phrases refer to the Fifth Amendment to the U.S. Constitution—specifically, the privilege against self-incrimination mentioned in it. The Fifth Amendment also provides the basis for Miranda warnings or, put another way, the right to remain silent or the right to have questioning stopped.
Fifth Amendment: the Privilege Against Self-Incrimination Inside and Outside the Courtroom
The Fifth Amendment applies both in and beyond the courtroom. Outside the courtroom, a suspect who’s in police custody must be warned—before being questioned—of their right to remain silent and that anything they say can be used against him. Inside the courtroom, the defendant has the right not to testify at all, and a witness who’s called to testify may (in appropriate circumstances) refuse to give answers that might incriminate them in a crime.
Miranda Rights: Outside the Courtroom
One of the best-known cases in American history is Miranda v. Arizona. In Miranda, the Court essentially held that before police can question someone in custody, they must warn the person that: “[H]e has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” (Miranda v. Arizona, 384 U.S. 436 (1966).) Officers don’t need to recite this exact language to suspects, but they do have to clearly and unambiguously get its meaning across.
Contrary to some perceptions, Miranda warnings aren’t necessarily required when the police suspect someone of a crime, or even when they arrest someone. Officers must give the Miranda warnings only when they (1) take suspects into custody (by depriving them of their freedom “in any significant way”) and (2) interrogate (question) them.
Even when the warnings are required and the police either violate or don’t give them, the case won’t automatically be dismissed. In fact, statements obtained by law enforcement in violation of Miranda are often admissible in court for limited purposes, such as to impeach (discredit) someone’s testimony.
Pleading the Fifth: Inside the Courtroom
The Fifth Amendment gives criminal defendants the right to not take the witness stand at trial. If the defendant decides not to testify, the prosecutor cannot call the defendant as a witness (nor can the judge or defense for that matter). In a jury trial, the judge would then explain to the jurors that a defendant’s decision not to take the stand is not an admission of guilt. It’s the prosecution’s burden to prove the crime beyond a reasonable doubt; the defendant does not have to prove their innocence (and sometimes the best way to do this is to stay silent).
Witnesses can also plead the Fifth in appropriate circumstances. In grand jury proceedings, for example, witnesses who are called to testify but believe their testimony might incriminate them in a subsequent case can generally decline to answer. This privilege doesn’t give a witness free rein to refuse to answer every question—only when a response could give a prosecutor information or evidence that can be used against them.
Consult a Lawyer
If you’ve been arrested or charged with a crime, speak to a criminal defense attorney as soon as possible. Suspects who are in police custody should tell police—clearly and unequivocally—that they are invoking their right to remain silent and want a lawyer. Besides invoking these rights, it’s usually best not to say anything else until you’ve spoken with a lawyer.
For witnesses called to testify, speak to a criminal defense attorney if you have questions regarding your privilege against self-incrimination. You’ll want to speak to the lawyer before going in front of a grand jury or trial jury so you can prepare yourself and understand your rights.