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How much do you really know about the Fifth Amendment?


How much do you really know about the Fifth Amendment?

On behalf of Patrick T. McNally, Attorney at Law | 
November 3, 2020

Most everyone has some idea of what “pleading the Fifth” means. They’ve seen people do it hundreds of times on the various incarnations of Law & Order and seen or heard people do it in real-life legal proceedings. The idea that a person shouldn’t be forced to incriminate themselves dates back to the very earliest founders of our country — people who had seen what happens when defendants aren’t given that kind of protection under the law and are forced to confess to whatever they are suspected of doing (even when they weren’t guilty).

Here’s what you should know about the rights you have under the Fifth Amendment — and the ones you do no:

  • You have the right not to testify in your own criminal trial. However, if you do testify, you can’t choose to answer some questions but plead the Fifth to others. Once you’re under oath, you’ve waived your right to invoke the Fifth Amendment throughout the proceedings.
  • Witnesses to a crime generally have no right to refuse to testify. If you’re subpoenaed to be a witness in a criminal legal proceeding, you can’t decline to testify or to answer the questions posed to you unless doing so would incriminate you of a crime (either involving the crime at hand or an unrelated one).
  • The right against self-incrimination applies only to “communicative evidence,” according to a U.S. Supreme Court ruling. It doesn’t mean that you can refuse to have your DNA (such as blood or saliva), fingerprints or other evidence collected.

While many people assume that a person must be guilty of some criminal wrongdoing if they take the Fifth, that’s not necessarily the case. That’s why jurors in criminal cases are instructed not to consider a defendant’s refusal to take the stand as an indication of guilt. In a 2001 case, the Supreme Court ruled that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The [Fifth Amendment right against self-incrimination] serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”

The Fifth Amendment is also what gives you the “right to remain silent” if you’re arrested. It’s always wise to talk with an attorney if you’re in that situation as well as about whether or not it’s in your best interests to testify in any criminal proceeding you may be facing. 

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