“Pleading the fifth” or “taking the fifth” is a legal concept that gets used frequently in television and movies, but which few people understand fully. The fifth amendment of the United States Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.”
What this means in common legal practice is that if you’re on trial, under oath, and the prosecution asks a question that the answer to incriminates you, you don’t have to answer that question.
When Does The Fifth Amendment Apply?
The fifth amendment only applies during a criminal trial. In most criminal trials, the defendant doesn’t testify. However, if you are called to the stand to testify and asked a question which answering will incriminate you, you can invoke the fifth amendment. This is commonly referred to as “pleading the fifth” or “taking the fifth.”
You cannot invoke the fifth amendment during police questioning or custody. If you are in police custody, you should invoke your Miranda Rights, which include the right to remain silent and to have an attorney present.
Is Pleading The Fifth An Admission Of Guilt?
No, pleading the fifth is not an admission of guilt. While it is often portrayed that way in the news and popular media, invoking the fifth amendment is not the same thing as pleading guilty to a crime.
In fact, during a criminal trial, the jury is specifically instructed not to interpret a defendant’s decision to plead the fifth as an admission of guilt. You have the constitutional right not to testify at trial.
Do I Need A Lawyer To Plead The Fifth?
Unless you are representing yourself at trial (which is a terrible idea), you will need an experienced criminal defense attorney to represent you. An experienced lawyer will help you plan your defense strategy and advise you whether or not pleading the fifth is necessary.