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 — see sources 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.
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.
In March 1963 Ernesto Miranda was arrested at his home in Phoenix and taken to the police station where he was identified by the complaining witness. He was then questioned by two officers in Interrogation Room No. 2 for two hours. The officers did not advise him of any right to counsel. Miranda signed a typed confession that was introduced at his trial for kidnapping and rape. On October 14 1960 Michael Vignera was arrested in connection with a Brooklyn robbery. He was taken first to the 17th Detective Squad headquarters in Manhattan and later to the 66th Detective Squad. A detective questioned him for several hours without any advice concerning counsel. Vignera made an oral admission. He was then questioned by an assistant district attorney whose transcribed statement was also introduced at his trial for first-degree robbery. On March 20 1963 Carl Calvin Westover was arrested by Kansas City police as a suspect in two local robberies. Kansas City police interrogated Westover on the night of his arrest. The next day local officers interrogated him again throughout the morning. Westover was then turned over to FBI agents who questioned him for two to two-and-a-half hours about California robberies and obtained signed confessions. At the time the FBI agents began questioning Westover he had been in custody for over fourteen hours. On January 31 1963 Roy Allen Stewart was arrested at his home in connection with a series of purse-snatch robberies. During the next five days police interrogated Stewart on nine different occasions without any advice of rights. On the ninth session Stewart confessed. Transcripts of the interrogations were introduced at his trial for kidnapping rape and murder. The Arizona Supreme Court affirmed Miranda's conviction. The New York courts affirmed Vignera's conviction. The Ninth Circuit affirmed Westover's conviction. The California Supreme Court reversed Stewart's conviction. The Supreme Court granted certiorari in the four cases and consolidated them for argument.
View caseA 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…