A few principles of criminal law are well-known to almost all Americans. One of these is the constitutional right to “plead fifth”. This topic is often brought up in Congressional testimony, media reports on ongoing investigations, as well as in television and movie shows that cover everything from mafia stories to police procedurals. What does it mean to take the fifth? This right comes from where? What can we draw if someone pleads the fifth?

What is Pleading the Fifth?

The term “taking the fifth” is not legal but it is commonplace. A common response to taking the fifth is to say, “I refuse to answer the question on the ground that it may incriminate.” Although it sounds like an admission, it’s not one.

Although it may seem like a technicality to some, the fact that pleading fifth does not constitute an admission of guilt is crucial in criminal cases. The U.S. Supreme Court ruled that jurors cannot obtain information in a criminal case about defendants refusing to answer questions or testify in defense.

It is believed that defendants should not be punished because they exercise a right under the United States Constitution, regardless of whether they are guilty or innocent. The public and jurors tend to draw negative inferences against those who plead the fifth. This is the reason the courts won’t allow the evidence to be used in criminal trials.

Where does Taking the Fifth come from?

As you may know, taking the fifth refers specifically to an individual’s rights under Amendment Five of the U.S. Constitution. The 5th Amendment includes many rights.

• Federal prosecution of capital offenses or other serious felonies is not possible without being indicted first by a grand jury
• Double jeopardy – Being charged with the same crime twice
• The right to fair compensation and due process if your property is taken by the government (eminent Domain).

Miranda rights are also available from the Fifth Amendment.

The Fifth Amendment states that no person shall be forced to testify against himself in criminal cases. This provision states that you cannot be forced to testify against yourself by the government. The Framers of Constitution were concerned about a strong government that might use torture or other coercive methods to get confessions in court. The Bill of Rights includes the right against self-incrimination. This ensures that the government is less likely to resort to forceful tactics in criminal prosecutions. It also prevents the government from resorting to a Kangaroo court to obtain convictions.

This principle has been modified over time to allow you to refuse to answer any questions that could implicate you in a crime other than an active criminal investigation or police question. The fifth can be pleaded at any time. This applies even if the court has issued a subpoena to you or if you are called to testify before Congress on a matter of national importance.

Why Innocent People Might Plead the Fifth

If you are convicted of a crime, the Fifth Amendment rights against self-incrimination have a clear benefit. What does the privilege to self-incrimination mean for innocent persons? As we have seen, jurors and the public tend to jump to conclusions when you refuse to answer questions. Federal authorities and police officers may feel the same way, which could motivate them to launch a criminal investigation against you. It is in your best interest to answer all questions if you have nothing to hide.

It’s not always the most strategic decision to cooperate fully with law enforcement, even if you are innocent. Many people, even though they were not the initial target of a criminal investigation, end up in trouble with the justice systems. This could have been avoided if they pleaded the fifth.

Here’s an example. Let’s suppose you have stock in a pharmaceutical corporation. The Food and Drug Administration will soon deny approval for a novel drug. This will impact the stock price of the company. Although you may not be aware of the FDA’s imminent actions, your friend who runs the company is. He calls to tell you to sell your stock immediately, but he doesn’t explain why. Just a day before the stock drops, he advises you to sell.

A few months later, you receive visits and calls from the Securities and Exchange Commission and FBI asking about your incredible timing in selling your shares. Nervous, your attempts to justify your actions with fabrications and false statements are unsuccessful. You tell the FBI that you had prearranged the sale with your broker and had nothing to do the FDA denial. Your lies fall apart when the federal authorities discover the truth. You are convicted and charged with obstruction of justice and lying federal authorities, but not insider trade.

This could have been avoided if you had originally pled fifth, as in the case of Martha Stewart.

The Court of Public Opinion

The public perceives the fifth as an admission to guilt, as noted above. In public testimony such as before Congress is it not better to tell the truth even though there may be information that you don’t want publicized? What about telling the truth, but hiding or avoiding the things you don’t want?

No, lying in Congressional testimony is not perjury. This is a federal and state crime. Sometimes, admitting to something isn’t always the best way to protect yourself.

Here’s an example: In 2005, professional baseball player Mark McGwire repeatedly pled the fifth before Congress when asked about his use of performance-enhancing drugs. All baseball fans assumed, correctly, that McGwire had used steroids. McGwire later admitted to it. His live testimony was viewed as a disaster in public relations.

If he did use steroids, and was willing to admit it later, why not just give honest answers? Because he was in a difficult situation. He could have been more honest and faced additional questions from national television about the steroids he used and where he purchased them. Perhaps he even faced criminal charges, although that is not certain. Perjury would result if he said he didn’t use them as he has in the past. The fifth option was the best. Despite all the criticism McGwire was not convicted of any crime and continued to be involved in baseball.

Civil Trials

It is important to remember that civil cases do not have the same protections as criminal prosecutions for taking the fifth. If you plead the fifth in civil court, a jury can draw an adverse conclusion. If you sue another driver for injuries sustained in a car accident and refuse to answer the question about whether you were drinking before you got behind the wheel, the jury can make an adverse inference.

Also, why not take the fifth if you are innocent?

The Fifth Amendment covers both the innocent as well as the guilty. If they are innocent of the crime under investigation, an innocent person may plead the fifth. However, answering could result in minor, unrelated criminal charges. If they know they are innocent, an innocent person could plead the fifth. However, the situation will make it worse for them. Answering will only increase their suspicion. These are just some examples.

It’s a difficult decision

A blog about taking the fifth is not intended to be legal advice. It is difficult to decide whether someone should plead guilty to the fifth in a criminal investigation. It is a decision that you should make with your criminal defense attorney. Any communication with your attorney will be protected by attorney-client privilege.

To the Public: We are free to assume that anyone who takes the fifth admits guilt. However, we can also have opinions on any topic, provided we understand that pleading fifth does not legalize the act of admitting guilt under another name.

 

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