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What Does ‘Plead the Fifth’ Mean and When Should You Use It?

By stladmin on June 11, 2020

Cop dramas and crime shows have made most people aware of the term “I plead the fifth,” but few actually know what the phrase refers to. It comes from the Fifth Amendment of the Constitution, which outlines several laws regarding due process and how an individual should be charged with a crime. When someone declares they are pleading the fifth, they are specifically referring to how the Constitution states that no individual “shall be compelled in any criminal case to be a witness against himself.”

For many, pleading the fifth is shorthand for refusing to answer a question, however it is significantly more complex than that. Pleading the fifth only applies to specific scenarios and has its own benefits and costs to defendants.

Your Constitutional Right

“I plead the fifth” often follows a question that could lead to an individual incriminating themselves in a crime. Based on the fifth amendment, this is referred to as the right against self-incrimination and protects you from accidently confessing to a crime. However, while it is a constitutional right, that does not mean it is universal.

The language of the fifth amendment is very specific and only allows an individual to refuse to testify against themselves during a criminal trial and when they are on the witness stand. While its concept may overlap with your Miranda Right to remain silent when in police custody, it does not apply to police investigations and interrogations. In addition, like Miranda Rights, it is not automatic. You must expressly state that you are pleading the fifth for the court to uphold your right.

Often, only two groups can plead the fifth:

  • A defendant who is being charged with a crime and is refusing to testify in their own trial
  • A witness who is subpoenaed to provide a testimony in a criminal trial and is refusing to answer specific questions if their answers could be self-incriminating

Pleading the fifth may also apply to personal injury claims where a defendant is refusing to testify in a civil court, however this can be seen as an admission of guilt to a jury.

Pros and Cons to Pleading the Fifth

The founding fathers designed the fifth amendment as a legal protection against self-incrimination for defendants and witnesses. While it is an important component of our legal system, it is not always your best option. To some, pleading the fifth may be seen as a subtle admission of guilt or make a defendant seem shifty in the eyes of the jury. However, in Griffin v. California and Ohio v. Reiner, the Supreme Court determined that a jury may not infer guilt if a defendant refuses to testify. Instead, they must only base their judgments on the evidence and testimony provided, not the lack of a testimony.

Because of this, you may be tempted to plead the fifth during your trial, but you should only do this with the express legal advice of your attorney. Pleading the fifth is an all or nothing right, meaning you cannot choose to take the stand and then plead the fifth. Essentially, once you are on the stand, you are legally compelled to answer all questions asked of you by your attorney and the prosecution.

If you plead the fifth, that means you are refusing to testify in court for the entirety of your trial. Thus, you are missing out on the opportunity to defend yourself and state your side of the story. Depending on the circumstances of your case, this may be your best option. Your attorney may be able to use other witness testimonies, expert opinions, and evidence to get your charges reduced or case dismissed.

Need Representation After an Arrest? Give Us a Call

Ultimately, you should discuss your case with a knowledgeable attorney before pleading the fifth. The U.S. Constitution outlines many rights you have during a criminal trial and investigation, including the right to counsel, which is just as invaluable as pleading the fifth. If you or a loved one were arrested in Campbell County, contact a Gillette criminal defense attorney immediately. The legal team at Steven Titus & Associates, P.C. can review your case and, if we take you on as a client, aggressively defend your right to a fair trial. Call us at (307) 257-7800 to learn what options are available to you in a criminal trial in the state of Wyoming.

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Posted in: Criminal Defense

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