Also known as: plead the fifth · pleading the fifth · pleads the fifth · pleaded the fifth · fifth amendment plea · invoke the fifth · self-incrimination · right against self-incrimination
Written by attorneys — see sources below.
A constitutional protection that permits an individual to refuse to answer questions or provide testimony that could expose them to criminal liability. The protection applies during custodial interrogation, grand jury proceedings, and other compelled contexts. It extends to the states through the Fourteenth Amendment and covers only testimonial communications rather than physical evidence.
Freya Freeman took the stand in a civil fraud trial and described her company's revenue reports. On cross-examination opposing counsel asked whether she had ever skimmed cash from client accounts without reporting the income. Freya's lawyer objected and asserted that any answer would risk exposing her to tax fraud charges. The court sustained the objection because the inquiry concerned only character for truthfulness.
Francisco Frost was driven to the precinct in a cruiser and locked in an interview room. Detectives questioned him for three hours about a suspected arson without advising him of his rights. Frost eventually admitted starting the fire. The statements are inadmissible because no warnings were given before custodial questioning began.
Faye Fuller was called before a state grand jury investigating embezzlement. She refused to answer questions about her bank records. The prosecutor argued the privilege did not apply in state court. The judge correctly recognized that the protection binds state officials as well.
Frank Fisher was arrested for drunk driving and taken to a hospital. Officers ordered a blood draw over his objection. Fisher claimed the procedure violated his privilege. The sample was admissible because it produced only physical evidence rather than compelled testimony.
Petitioner Schmerber and a companion had been drinking at a tavern and bowling alley on November 12, 1964. Petitioner was driving from the bowling alley about midnight when the car skidded, crossed the road, and struck a tree. Both petitioner and his companion were injured and taken to a hospital for treatment. A police officer who arrived at the scene shortly after the accident smelled liquor on petitioner's breath and testified that petitioner's eyes were bloodshot, watery, and sort of a glassy appearance. The officer saw petitioner again at the hospital within two hours of the accident and noticed similar symptoms of drunkenness. He thereupon informed petitioner that he was under arrest and that he was entitled to the services of an attorney, that he could remain silent, and that anything he told the officer would be used against him in evidence. At the direction of a police officer, a blood sample was then withdrawn from petitioner's body by a physician at the hospital. The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time of the offense which indicated intoxication. The report of this analysis was admitted in evidence at the trial. Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test. Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor. The Appellate Department of the California Superior Court rejected petitioner's contentions and affirmed the conviction. The Supreme Court granted certiorari.
View caseFarah Fox was subjected to an unlawful search by federal narcotics agents. She later sued the agents for damages arising from the violation. The action proceeded because the agents' conduct implicated protected constitutional rights.
On the morning of November 26, 1965, agents of the Federal Bureau of Narcotics entered Webster Bivens's apartment in the Bronx. The agents broke open the door, handcuffed Bivens in front of his wife and young children, and thoroughly searched the apartment. They then transported Bivens to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search. Several days later Bivens was released on his own recognizance, and he was never indicted or prosecuted for any offense. Bivens filed suit in the United States District Court for the Eastern District of New York against the six agents in their individual capacities. His complaint sought fifteen thousand dollars in damages from each agent and alleged that the arrest and search were effected without a warrant, that unreasonable force was employed, and that the arrest was made without probable cause. Bivens claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents' conduct. The District Court dismissed the complaint on the ground that it failed to state a cause of action. The United States Court of Appeals for the Second Circuit affirmed the dismissal. The Supreme Court of the United States granted certiorari to review the judgment.
View caseFumiko Fujimoto was acquitted of murder in state court. Prosecutors sought to retry her on a lesser charge using the same evidence. Defense counsel invoked incorporated constitutional protections. The second prosecution was barred because the protection prevents successive jeopardy.
Frank Palko was indicted in Fairfield County, Connecticut, for the crime of murder in the first degree. A jury found him guilty of murder in the second degree, and he was sentenced to confinement in the state prison for life. Thereafter the State of Connecticut, with the permission of the judge presiding at the trial, gave notice of appeal to the Supreme Court of Errors pursuant to an act adopted in 1886, now section 6494 of the General Statutes. Upon such appeal, the Supreme Court of Errors reversed the judgment and ordered a new trial. It found that there had been error of law to the prejudice of the state in excluding testimony as to a confession by defendant, in excluding testimony upon cross-examination of defendant to impeach his credibility, and in the instructions to the jury as to the difference between first and second degree murder. Pursuant to the mandate of the Supreme Court of Errors, Palko was brought to trial again. Before a jury was impaneled and also at later stages of the case he made the objection that the effect of the new trial was to place him twice in jeopardy for the same offense, and in so doing to violate the Fourteenth Amendment of the Constitution of the United States. Upon the overruling of the objection the trial proceeded. The jury returned a verdict of murder in the first degree, and the court sentenced the defendant to the punishment of death. The Supreme Court of Errors affirmed the judgment of conviction, adhering to a decision announced in 1894, State v. Lee, which upheld the challenged statute. Palko sought review in the Supreme Court of the United States under 28 U.S.C. § 344.
View caseA witness must affirmatively invoke the privilege when facing compulsion such as a subpoena. Once invoked without a grant of immunity the government may not use the resulting testimony in a later prosecution. Failure to invoke allows the statements to be admitted.
Testifying on another matter does not waive the privilege for questions that relate only to character for truthfulness. A court must sustain an objection when cross-examination seeks to elicit incriminating answers on collateral issues.
A court ruling that the privilege applies exempts the declarant from testifying and satisfies the unavailability requirement. The proponent may then offer qualifying statements against interest provided corroboration exists in criminal cases.
A jury instruction that permits an adverse inference from a defendant's failure to testify violates the privilege. The error is plain and constitutional though it may be harmless when independent evidence of guilt is overwhelming.
…irrational, for, apparently, it is only if the accused is also warned of his right to counsel and waives both that right and the right against self-incrimination that the inherent compulsiveness of interrogation disappears. But if the defendant may not answer without a warning a question such as "Where were you last night?" without having his answer…