The United States’ Fifth Amendment states that no one can compel an individual in a criminal case to be a witness against themselves. Also known as “pleading the fifth,” this law guarantees a person has the right to protect themselves from self-incrimination. Pleading the fifth is different depending on the trial—civil or criminal—and whether an individual is a witness. If you find yourself wondering what happens if I plead the fifth, we lay out the information you need below.
Your Rights to Plead the Fifth
Pleading the Fifth in a Criminal Trial
The most common application of the Fifth Amendment is in a criminal trial. This is when the defendant always has the right and opportunity to refuse to testify in court. No one in court, neither judge, prosecution, or jury, can make the defendant take the stand. Even better for the defendant, the jury cannot use the defendant’s choice to plead the fifth as an aspect for their deliberations. However, if the defendant does not make this choice, they must answer all questions posed.
Pleading the Fifth in a Civil Trial
Invoking the Fifth Amendment in a civil trial can come at a high price. Unlike a criminal trial, a jury can make assumptions about the defendant if he/she chooses not to testify. This can play a large role in the jury’s deliberations as it gives them a reason to draw an adverse inference. An attorney might have the defendant speak up anyway as it will create a better situation for the defendant.
Pleading the Fifth as a Witness
On the other hand, being a witness in a trial—civil or criminal—allows you the Fifth Amendment right as well. If an individual is a witness to a crime or action, he or she can plead the fifth and not answer the question if it will lead to self-incrimination. Witnesses often go this route when they fear their testimony or answer to a question does not pertain to the case at hand. However, pleading the fifth does not allow a witness to avoid testifying altogether. More often than not, the court will subpoena witnesses, which means that they have to testify. This can sometimes lead to the witness’ immunity in exchange for a testimony. As such, the witness will not receive charges for any incriminating statements.
When Can I Not Plead the Fifth?
Pleading the Fifth only applies toward verbal evidence. Therefore, any evidence that is noncommunicative does not fall under the Fifth Amendment. For example, one cannot object to the collection of DNA, fingerprinting, or anything similar by pleading the fifth. That said, it’s important to note that the Fifth Amendment only allows the right to remain silent, not the right to complete immunity for a defendant. If you need assistance with a trial, reach out to a Portland prostitution attorney, who can aid you in deciding when to plead the fifth or to speak up.