Also known as: take the Fifth · took the Fifth · taken the Fifth · plead the Fifth · pleads the Fifth · Fifth Amendment · plead the fifth · right to silence · self-incrimination
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional privilege allowing a person to refuse to answer questions or provide testimony that could be used to incriminate them in a criminal case. The privilege applies in any proceeding where answers might furnish a link in the chain of evidence leading to prosecution. Invocation must be clear and is not waived merely by testifying on unrelated matters such as character for truthfulness.
Tracy Torres took the stand in a fraud trial and answered questions about prior business dealings. When cross-examination turned to whether she had ever falsified documents, she stated she would not answer on Fifth Amendment grounds. The court permitted her to invoke the privilege without treating her other testimony as a waiver.
Tonya Takahashi, a U.S. citizen working abroad, faced questions under an executive agreement requiring disclosure of financial records. She refused, citing the Fifth Amendment. The court held that the agreement could not compel answers that would violate her constitutional protection against self-incrimination.
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Trevor Tate was arrested and questioned at length in a closed room without warnings. He remained silent when asked about his involvement in a theft. The court suppressed later statements because the failure to advise him of his right to remain silent violated the Fifth Amendment privilege.
A city employee faced dismissal after refusing to answer job-related questions without immunity. The employee invoked the Fifth Amendment privilege. The court held that firing the employee solely for asserting the privilege, without providing immunity, violates the Fifth Amendment.
An applicant for bar admission refused to answer questions about prior conduct on Fifth Amendment grounds. The admissions authority sought to deny the application for nondisclosure. The court recognized that the Fifth Amendment protects the applicant from compelled answers in that setting.
A lawyer under disciplinary investigation declined to answer certain questions citing the Fifth Amendment. The disciplinary body attempted to draw an adverse inference from the silence. The court ruled that the Fifth Amendment bars conditioning professional status on surrender of the privilege.
No. A witness who testifies on another matter does not waive the privilege against self-incrimination for testimony that relates only to character for truthfulness. The rule preserves the ability to invoke the privilege even after answering questions on credibility.
No. Treaties and executive agreements cannot authorize action that violates the Fifth Amendment. The privilege remains available even when an agreement would otherwise require disclosure.
The privilege requires warnings before custodial interrogation. Statements obtained without those warnings are inadmissible, and the right to remain silent must be honored once invoked.
No. Public employees cannot be compelled on threat of dismissal to waive the privilege against self-incrimination. Firing an employee solely for asserting the privilege without providing immunity violates the Fifth Amendment.
…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…