Also known as: pleads the Fifth · pleading the Fifth · pleaded the Fifth · plead the 5th · Fifth Amendment privilege · take the Fifth
Written by attorneys · grounded in primary & secondary sources — see below
An invocation of the Fifth Amendment privilege against compelled self-incrimination that permits a person 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.
Parker Phillips was arrested and taken to the station for questioning about a theft. Officers asked him detailed questions about his whereabouts without first advising him of his rights. Parker Phillips responded by pleading the Fifth and refused to answer. The prosecution later sought to introduce his silence as evidence of guilt.
Pearl Porter appeared before a state securities examiner investigating suspicious trades at her firm. The examiner threatened license revocation if she refused to answer. Pearl Porter pleaded the Fifth and declined to respond. Prosecutors later attempted to use her refusal against her in a state fraud trial.
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Pamela Phillips was subpoenaed to testify before a federal grand jury about a conspiracy. The government offered her immunity from prosecution based on her testimony. Pamela Phillips still pleaded the Fifth because the immunity did not fully protect against all derivative uses. The court ordered her to answer after confirming the protection was coextensive.
Pavel Petrov was a passenger in a car stopped by police. Officers found drugs and questioned him about ownership. Pavel Petrov pleaded the Fifth and refused to answer. The prosecution argued he lacked standing because the drugs were not his, but the court recognized his personal right to invoke the privilege.
Pablo Perez was arrested and given Miranda warnings. He initially answered some questions but then stated he wanted to remain silent. Officers continued questioning him about the robbery. Pablo Perez pleaded the Fifth again and the later statements were excluded at trial.
Patricia Patel was convicted of fraud and faced sentencing. The judge asked her to explain the source of certain funds. Patricia Patel pleaded the Fifth and declined to answer. The court refused to consider her silence as a factor in imposing a longer sentence.
Yes. The privilege applies whenever a person reasonably believes an answer might tend to incriminate them in a later criminal prosecution. A witness in a civil case may invoke it even if no charges are pending, provided the risk of criminal liability is real rather than speculative.
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Yes. The privilege is incorporated through the Fourteenth Amendment and binds state officials as well as federal ones. A person may invoke it before a state regulatory agency or in state court when answers could lead to criminal liability under state law.
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A criminal defendant may refuse to take the stand at all. Any other witness must appear and be sworn before invoking the privilege in response to specific questions that would elicit incriminating answers.
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The answers may be used against the person in a later criminal prosecution. Failure to assert the privilege waives the protection for those responses even if they are potentially incriminating.
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No. The government may not deny employment, professional licenses, or other benefits solely because a person invokes the privilege. Conditioning such benefits on surrender of the right violates the Fifth and Fourteenth Amendments.
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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…