Also known as: pleads the Fifth · pleading the Fifth · pleaded the Fifth · plead the 5th · Fifth Amendment privilege · take the Fifth
Written by attorneys — see sources 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.
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.
In February 1971 petitioners were subpoenaed to appear before a United States grand jury in the Central District of California investigating violations of federal gambling and related laws. The government believed that petitioners were likely to assert their Fifth Amendment privilege against self-incrimination. Prior to the scheduled appearances, the government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U.S.C. §§ 6002-6003. Petitioners opposed issuance of the order, contending that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination and therefore was not sufficient to supplant the privilege and compel their testimony. The District Court rejected this contention and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity. Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury's questions notwithstanding the grant of immunity. The court found both in contempt and committed them to the custody of the Attorney General until either they answered the grand jury's questions or the term of the grand jury expired. The Court of Appeals for the Ninth Circuit affirmed the contempt findings. The Supreme Court granted certiorari to resolve whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom or whether transactional immunity is necessary.
View casePavel 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.
Petitioners were convicted of armed robbery in the Circuit Court of Kankakee County, Illinois, after a trial in which the prosecution introduced a sawed-off rifle and rifle shells seized by police from an automobile in which the petitioners had been passengers. Neither petitioner owned the automobile, and neither asserted ownership of the rifle or the shells. The Illinois Appellate Court affirmed the convictions after upholding the denial of a motion to suppress, and the Illinois Supreme Court denied leave to appeal. The events began when a police officer on routine patrol received a radio call reporting a robbery of a clothing store in Bourbonnais, Illinois, and describing the getaway car. The officer spotted a vehicle he believed matched the description, followed it until backup arrived, and then stopped the car. The occupants, consisting of the petitioners and two female companions with the owner driving, were ordered out of the vehicle. After the occupants exited, officers searched the interior of the car and discovered a box of rifle shells inside the locked glove compartment along with a sawed-off rifle beneath the front passenger seat. The officers then took the petitioners to the station and placed them under arrest. Before trial the petitioners moved to suppress the rifle and shells, conceding they did not own the automobile and were merely passengers while also declining to claim ownership of the seized items. The prosecutor challenged the petitioners' standing to object to the search on the ground that neither the car nor the evidence belonged to them. The trial court agreed and denied the motion to suppress without reaching the question of probable cause. The Supreme Court of the United States granted certiorari to address the standing issue because of its importance to the administration of criminal justice.
View casePablo 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.
Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence. Before trial, Dickerson moved to suppress a statement he had made at a Federal Bureau of Investigation field office on the grounds that he had not received Miranda warnings before being interrogated. The District Court granted his motion to suppress, and the Government took an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit. That court reversed the District Court's suppression order. It agreed that petitioner had not received Miranda warnings before making his statement but held that 18 U.S.C. § 3501 governed the admissibility of the statement. The Fourth Circuit concluded that Miranda was not a constitutional holding and that Congress could therefore have the final say on admissibility. Two years after Miranda was decided, Congress enacted 18 U.S.C. § 3501, which provides that a confession shall be admissible in evidence if it is voluntarily given and directs the trial judge to consider specified factors in determining voluntariness. Because of the importance of the questions raised by the Court of Appeals' decision, the Supreme Court granted certiorari.
View casePatricia 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.
In 1995 Amanda Mitchell and 22 other defendants were indicted in the Eastern District of Pennsylvania for offenses arising from a conspiracy to distribute cocaine in Allentown from 1989 to 1994. Mitchell was charged with one count of conspiring to distribute five or more kilograms of cocaine and three counts of distributing cocaine within 1,000 feet of a school or playground. Without a plea agreement she pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count. The District Court advised her that quantity would be determined at sentencing. Before accepting the plea the District Court conducted the Rule 11 colloquy. It informed Mitchell that the range of punishment was complex because the amount of cocaine had not yet been established. She faced a mandatory minimum of ten years if held responsible for at least five kilograms. Mitchell stated under oath that she had done "some of it." After consulting counsel she reaffirmed her intention to plead guilty to all charges. The court accepted the plea. In 1996 nine codefendants went to trial. Three cooperating codefendants who had pleaded guilty testified at Mitchell's sentencing hearing. They adopted their trial testimony. One furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling one and one-half to two ounces of cocaine a day, from April 1992 to August 1992. Then, from August 1992 to December 1993 she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. Mitchell offered no evidence and did not testify. Her counsel argued that only the three documented sales to undercover buyer Alvitta Mack totaling two ounces should be credited. The District Court ruled that Mitchell had no right to remain silent at sentencing because of her guilty plea. It expressly relied on her failure to testify in crediting the codefendants' testimony. The court found her responsible for more than five kilograms and imposed the ten-year mandatory minimum sentence together with six years of supervised release and a $200 special assessment. The Court of Appeals for the Third Circuit affirmed. The Supreme Court granted certiorari.
View caseYes. 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.
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.
Supporting sources
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.
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.
Supporting sources
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.
Supporting sources
…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…