The phrase “pleading the 5th” often comes up in reference to courtroom dramas. What does it actually mean? Should you plead the 5th, and if so why?

What is the Fifth Amendment?

The fifth amendment contains the right to remain silent. This means that you cannot be compelled to provide information that would incriminate you. So, pleading or taking the fifth means that you are refusing to answer a question or provide information on the grounds that it would be giving the prosecutor evidence against you.

When Can You Plead the 5th?

You can’t just randomly plead the 5th. There are certain conditions which have to be met. Specifically.

  • You must be compelledto give the information, not asked voluntarily. For example, if you receive a subpoena.
  • The information must relate to actual facts or beliefs.
  • It must provide some link that would connect you to a crime. That means it doesn’t need to be evidence, it can also be information that would lead to the discovery of evidence.
  • You must not have received immunity or a pardon. If you have, then you can’t be prosecuted, so there is no benefit to pleading the 5th.
  • You must not have been convicted and sentenced.

Your refusal to answer questions can’t be used against you in a criminal case, and can’t be used to imply guilt. You can even get out of being called as a witness by telling the prosecutor you are going to invoke the fifth. You can also plead the 5th as a witness if your answer might implicate you in a crime, even if it’s not related to the crime at hand. A prosecutor might give you immunity to get around this.

Is there a Downside to Pleading the 5th?

There can be. A few things to consider:

  • In a civilcase the jury isallowed to consider it as potential evidence to support liability, so it might be better just to reveal the information.
  • If you are an employee, pleading the fifth during an investigation of corporate wrongdoing may get you fired.
  • You can’t object to DNA evidence, digital evidence, etc. For example, if they threaten to decrypt your phone, you can’t plead the 5th to avoid it. If it’s not communication from you, you can’t object.

In other words, whether it’s a good idea to plead the 5th depends very much on your circumstances. You also need to know when you can plead the 5th. If you are in a situation where you need to defend yourself against criminal allegations, you should first get a good attorney who can help you make these decisions for your specific case.