Also known as: plead the fifth · pleads the fifth · pleaded the fifth · fifth amendment · invoke the fifth
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional privilege that permits a person to refuse to answer questions or supply testimony that could be used to incriminate them in a criminal case.
Paul Peterson, a U.S. citizen working abroad under an executive agreement, is subpoenaed by federal prosecutors. When asked about his activities that might link him to a crime, he pleads the fifth. The court holds that the agreement cannot force him to testify because the Fifth Amendment bars compelled self-incrimination regardless of the treaty.
Pilar Pena, married to her same-sex spouse under state law, faces federal benefit questions that single out her marriage. The court holds that the Fifth Amendment's equal protection component protects her from federal definitions that disadvantage her state-recognized marriage.
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Patrick Phan is arrested and questioned in a police station without warnings. After several questions about a theft, he states he wishes to remain silent and pleads the fifth. Officers must stop the interrogation because the privilege prevents further compelled statements.
Perry Pratt is recorded during a private conversation about business dealings. Prosecutors seek to use the recording at trial. The court holds that the Fourth Amendment protects against unreasonable searches but does not bar use of the recording itself.
Pavel Petrov sues federal agents after an unlawful search of his property. The court recognizes an implied cause of action under the Fourth Amendment for the violation by federal officers.
Priya Prasad, a White House aide, receives a subpoena for tapes of conversations. The court rejects an absolute executive barrier and requires compliance with the subpoena for relevant evidence.
The privilege protects against compelled testimony that could be used in a later criminal prosecution even if the current proceeding is civil. A witness may assert it when a reasonable fear of incrimination exists.
No. The government may not dismiss an employee solely for asserting the privilege without granting immunity. Conditioning continued employment on waiver of the right violates the Fifth Amendment.
No. The privilege covers only testimonial communications. Physical exemplars such as handwriting or voice samples fall outside its protection because they are not communicative acts.
The prosecution may not comment on the invocation or draw an adverse inference from it. The jury is typically instructed that no negative conclusion may be drawn from the assertion of the privilege.
…proceeding classically associated with obtaining freedom from physical restraint. Cf. id. , at 444–445. In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s…