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 · grounded in primary & secondary sources — see 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.
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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.
Farah 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.
Fumiko 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.
A 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…