Also known as: take the Fifth Amendment · take the fifth · plead the fifth · invoke the Fifth Amendment · Fifth Amendment privilege · plead the Fifth · right to remain silent
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection that permits an individual to refuse to answer questions when the response could furnish a link in the chain of evidence needed to prosecute that person for a crime. The protection applies in both federal and state proceedings and bars the government from compelling testimony through threats of penalty or other coercion. Invocation must be clear and unambiguous to halt questioning or prevent later use of silence against the individual.
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Detectives read Finn Fletcher his rights at the station and asked whether he knew the warehouse break-in was illegal. Fletcher sat silent and gave no answers. At trial the prosecutor argued that Fletcher's silence showed he understood the wrongfulness of his conduct and therefore was not insane. The court suppressed the argument because post-warning silence cannot be used as substantive evidence against the defendant.
Farid Farahani was arrested and taken to an interview room where officers questioned him for two hours about falsified invoices without giving any warnings. Farahani made several admissions that the government later sought to introduce at his fraud trial. The court excluded the statements because they were obtained during custodial interrogation without the required advisements and waiver.
Frank Fisher appeared before a state licensing board investigating grant misuse. The examiner warned that refusal to answer questions about personal withdrawals would trigger an immediate criminal referral. Fisher answered under that threat and later faced embezzlement charges that sought to use his statements. The court suppressed the statements because the incorporated privilege prohibits state officials from compelling testimony through threat of criminal consequences.
Frederick Ferguson was on trial for mail fraud. The judge instructed the jury that it could consider Ferguson's decision not to take the stand as evidence of guilt. Defense counsel did not object. On appeal the court held that the instruction violated the Fifth Amendment privilege and required reversal because the error was plain and affected substantial rights.
Fatima Flores was taken to the hospital after a collision. Officers directed a physician to draw her blood without a warrant or her consent to test for alcohol. The results were offered at her DUI trial. The court admitted the evidence because the physical sample was nontestimonial and therefore outside the scope of the Fifth Amendment privilege.
Freya Freeman was arrested without probable cause and later made incriminating statements during questioning. The government sought to introduce both the statements and evidence discovered as a result. The court suppressed the statements and their fruits because the initial arrest violated the Fourth Amendment and the subsequent statements were obtained in violation of the Fifth Amendment privilege.
No. Once Miranda warnings are given, post-warning silence itself cannot be used against the defendant as evidence of guilt or to rebut a defense such as insanity. The warnings carry an implicit assurance that silence will carry no penalty, and the government may not penalize reliance on that assurance.
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…of each individual to a private enclave where he may lead a private life. III Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed from being compelled to incriminate…
…overruling Twining v. New Jersey , 211 U. S. 78 (1908), and Adamson v. California , 332 U. S. 46 (1947), and incorporating the Fifth Amendment privilege against self-incrimination by holding that “the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.” 378 U. S., at 11. See my…
…The shift reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. Rogers v. Richmond , 365 U. S. 534, 541. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and…
…Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege
…also ante, at 9 (opinion of SCALIA, J.). But those implications are generally quite attenuated. A defendant’s invocation of his right to remain silent
Yes. The privilege is incorporated through the Fourteenth Amendment and binds state officials. A state regulator may not condition continued licensure or forbearance from criminal referral on a witness surrendering the privilege and answering potentially incriminating questions.
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Yes, if officers scrupulously honor the invocation by immediately stopping the current interrogation, waiting a significant period, giving fresh warnings, and limiting later questions to a different offense. Continuous custody alone does not bar renewed questioning when these safeguards are followed.
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No. The privilege protects only testimonial communications. Physical evidence obtained without compulsion to speak or write is not covered even if it tends to incriminate the individual.
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