What Cannot happen to a person because of the Fifth Amendment?

We've all read reports and seen news coverage of a witness declining to answer questions on the grounds that the responses may incriminate him—he "claims the Fifth." A witness in that situation is relying on the Fifth Amendment to the United States Constitution, which provides that no person "shall be compelled in any criminal case to be a witness against himself." If, by answering, the witness could provide evidence that might aid the government in prosecuting him, then he has the right to refuse.

(For another angle to this right, see Immunity From Prosecution. Also, see Can one person claim the Fifth Amendment on another's behalf?)

When and Where Can You Assert the Privilege Against Self-Incrimination?

Witnesses can assert the privilege against self-incrimination in civil proceedings as well as criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can assert it in state or federal court, in a wide variety of proceedings (including trials, depositions, administrative law proceedings, and investigatory proceedings like grand jury hearings). But interestingly, if the witness fears exposure to prosecution in a country other than the United States, the privilege does not apply. (U.S. v. Balsys, 524 U.S. 666 (1998).)

How Damaging Must the Disclosures Be?

Not every disclosure can be the subject of a Fifth Amendment assertion—only those that the witness "reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." (Kastigar v. U.S., 406 U.S. 441, 444-445 (1972).) The key word here is "reasonably." Responses to questions that would be of no use to prosecutors, or that couldn't contribute to a prosecution because of the passing of the statute of limitations, cannot take refuge within the Fifth. But if the prosecution can make use of the answer itself or any evidence it might lead to, the witness is entitled to claim the privilege against self-incrimination.

Parallel Civil and Criminal Proceedings

Often, witnesses are involved in two cases at the same time: one civil and one criminal. For example, a witness might be called to testify before a governmental body while a criminal case against her is in the investigative stages. The witness's lawyer will likely advise her to invoke the Fifth Amendment. Why is this a good idea?

First, because the potential consequences of a criminal proceeding (including jail or prison) are more dire than those of a civil case, a witness may be able to get a judge to "stay," or postpone, the civil matter until the criminal one is concluded. Even if there's no stay, a witness is usually better off asserting the privilege if truthful answers will tend to incriminate her with respect to the criminal case.

There's a real risk that innocent mistakes or omissions in a civil matter that's held before the completion of a criminal investigation will come back to haunt the defendant. It's even possible that a mistake in a civil proceeding will lead to a prosecution, not just for the underlying criminal act but also for being untruthful, in which case eventual charges might include obstruction of justice or even perjury.

Waiving Your Fifth Amendment Privilege

A witness can waive (give up) the right to invoke the Fifth by later making statements about the topic in question. For example, if a witness invokes the Fifth but goes on to selectively answer questions about the same subject matter, a judge might decide that the later answers invalidate the initial waiver. But judges are hesitant to declare the privilege waived because of its importance. For instance, a brief and general statement about one's innocence, following invocation of the Fifth, probably won't constitute a waiver.

Importantly, even if a judge finds that a person waived the privilege, that waiver will extend only to the current proceeding. A witness who answers questions subsequent to invoking the Fifth, who is ordered by a judge to continue answering based on the waiver, can reassert the privilege in a later, different proceeding. For example, a defendant who waives the privilege while testifying in one case can assert it when called to testify in another.

Additionally, a witness can begin testifying but invoke the privilege when answers to later questions would be incriminating. If the prosecutor commences by asking benign questions that the witness answers ("What were you wearing that night?") but moves into questions that go to the heart of the matter ("How many times did you meet with the defendant?"), the witness may claim the privilege.

Is It Ever Unwise to Invoke the Fifth?

At first blush, it might seem that whenever answers to questions might incriminate oneself, it makes sense to decline to answer. Many times claiming the Fifth is the best course of action, but there may be instances when it will do more harm than good. For example:

• In some civil cases (though not in California), the opposition may be entitled to an instruction advising jurors that they can draw an "adverse inference" against a witness who claims the Fifth. This can be a very damaging instruction, as it allows the jury to presume that, had the defendant answered the relevant questions, the answers would have been adverse to his interests.
• In most civil cases, a party who invokes the Fifth before trial, such as during discovery, will be barred from later offering evidence or testimony on that issue.
• The public often perceives claiming the privilege against self-incrimination as a tacit admission of guilt or responsibility. If the court of public opinion is important to the matter at hand, the publicity fallout can be vicious.

Yet, a witness who could claim the Fifth but is tempted to answer should first discuss the issue thoroughly with an attorney. Suppose a witness in a civil case may be able to supply credible answers that could form the basis for a strong defense against a future criminal proceeding. A prosecutor confronting these convincing, under-oath answers might decide not to file charges. Of course, if the witness fibs, omits something, or gets confused on cross-examination, she may doom herself. That's why the guidance of a knowledgeable attorney is crucial.

Consult Your Lawyer

The decision as to whether to invoke one's Fifth Amendment right against self-incrimination in a civil or criminal proceeding is very complicated, involving an assessment of both the facts and the relevant law in your jurisdiction. Only careful discussion and preparation with your lawyer will enable you to make a wise decision. Never head into a situation where testimony could end up hurting you without professional advice.

The Fifth Amendment right to remain silent is one of the most valuable rights we have.   But there is a lot of confusion about what this right entails: when can you invoke the right to remain silent?  Doesn’t pleading the Fifth make you look guilty?  Are there any consequences? Does this right apply to searches of my phone or documents?

In this article, we answer many of those questions.

What is the Fifth Amendment Right to Remain Silent?

Most of us learned about the Fifth Amendment in school but here is a refresher: it is one of the original ten amendments to the United States Constitution contained in the Bill of Rights.  Here’s the full text:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As you can see, many important criminal procedure concepts come from this amendment.  The portion in bold is what we know today as the “right to remain silent”, “5th amendment privilege”, “right against self incrimination”, and other names.

There is a fascinating history to be told of the various abuses in colonial America that this amendment was designed to address – but we are going to jump ahead to the 21st century and take a look at what role the amendment plays in our society today.

Can I invoke the Fifth Amendment if I am innocent?

If you remember only one thing from this post it should be this: innocent people can (and often should!) invoke the their Fifth Amendment protection.  The Framers included this amendment to protect both the guilty and the innocent.  And, in a criminal case, the defendant’s refusal to testify cannot be used against him.  The jury is specifically instructed that they are to draw no adverse conclusions from this fact.

The Supreme Court has recognized that there may be situations where a person is innocent, but may have rational reasons to invoke the 5th.  Let’s take a real-life example from the Supreme Court case of Ohio v. Reiner.  In that case, a father was accused of injuring his baby son, resulting in the son’s death.  The father’s defense was that he did not injure the baby, and that the injuries were caused by the babysitter.

The babysitter maintained her innocence.  The Supreme Court said that she was allowed to assert her 5th Amendment right.  The Court made it clear that innocent people are entitled to protection of the right to remain silent.  In fact, that right is designed to protect the innocent.

You might be asking: if she was innocent, why did she want to remain silent?  Because facts that she would have to admit to if she was questioned–like the fact that she was alone with the baby on a number of occasions–could later be used as evidence against her if someone decided to prosecute her.  She was with the baby in the time frame that the injuries happened.  Under these circumstances, it would be reasonable for the babysitter to fear that her statements could be used against her and incriminate her.

This kind of situation also sometimes comes up in white collar cases.  For example, an administrative assistant is called to testify.  That assistant is asked about filling out certain paperwork for the supervisor, who is charged with creating fraudulent paperwork.  The assistant may well not want to answer the questions, because they provide part of the evidence that could be used against him if prosecutors had concluded that the assistant was in on the scheme.

But keep in mind, you cannot use the right to remain silent just because you do not want to testify.  The Supreme Court has referred to this as a danger of  “imaginary and unsubstantial character.”  So for example, if you are innocently standing at an intersection and you see a car crash, you cannot refuse to testify on Fifth Amendment grounds.

Are there any consequences to pleading the Fifth Amendment?

There might be.  Many people fear that if they choose to remain silent, they will look like they have something to hide, or people may assume they are guilty. Unfortunately, this can be true in some cases.

This may also have other implications.  If you take our administrative assistant example, the corporation he is working for may fire him if he takes the Fifth Amendment, based on a policy that employees must “cooperate” with investigators and legal proceedings.

As we discuss further in this article, refusing to testify in a civil case can have its own consequences too.

The consequences of exercising the right to remain silent are also different depending on whether you are a defendant or a witness.  If you are defendant and choose to take the stand, you waive the right to remain silent at least on the subjects that you testified about on direct.  For witnesses, there is the option to invoke the Fifth Amendment on some subjects and not on others.

Does the Fifth Amendment apply outside of criminal trials?

Yes.  Although the terms “witness” and “criminal case” naturally evoke visions of a criminal trial, the Supreme Court has long held that the Fifth Amendment applies outside a criminal courtroom.

It applies any time a person is forced to make a statement that could be used to incriminate him.  A (non-exhaustive) list of situations where the Fifth Amendment applies outside a criminal trial includes: traffic stops, police interrogations, grand jury proceedings, arrests, civil depositions, civil trials, and testimony before the Unite States Congress.  We examine some of these below.

Can I claim the Fifth at a traffic stop?

Yes, you can claim your fifth amendment right in response to police questioning during a traffic stop.

Imagine you have just pulled onto the shoulder of the road and the police lights are flashing in your rear view mirror.  After the officer receives your license and registration, what does he do next?  Usually, the officer will ask some question about the reason for his traffic stop:  Do you know why I pulled you over?  Do you know how fast you were going?  Did you know your license was suspended?  Have you had anything to drink?

The officer’s questions are designed to elicit incriminating answers that he can use against you in traffic court.  For example, if you admit you were driving over the limit, you have “confessed” to speeding.  The officer can testify that you admitted to exceeding the posted speed limit.  Therefore, the Fifth Amendment gives you the right to refuse to answer questions like these during a traffic stop.

Can I plead the Fifth Amendment following an arrest?

Yes, you can claim the Fifth Amendment following an arrest.  In fact, law enforcement is required to remind you of this right by giving you the famous “Miranda warnings.”

In Miranda v. Arizona, the Supreme Court held that statements made during questioning of a person in police custody are inadmissible in court unless the person has first been “warned” by police that their statements could be used against them.  The rationale for the Court’s decision was that police custody is such an inherently coercive environment that the right to remain silent required an additional layer of legal protection to make it truly meaningful.  Of course, whether someone is in police “custody” for Miranda purposes is not always obvious – but that is a subject for another post.

In a typical case, police will take an arrested person they wish to question to an interview room at the station and may handcuff the person to a wall or desk.  The person is clearly in custody.  Before beginning the questioning, police will have the person sign a written Miranda waiver of the right to remain silent (and the right to have counsel present as well).  The person has now waived his right to remain silent and his answers can be used against him.

It is usually a bad idea to waive your right to remain silent following arrest.  If you wish to cooperate with police, you can do so much more effectively with the assistance of counsel.

Will my case be dismissed if police don’t read me the Miranda warnings?

Your case will not be dismissed.  However, the prosecutors will not be allowed to use any statements you made while in custody during police questioning.  This is called the “exclusionary rule.”

Can I remain silent if federal agents show up and start questioning me?

You can always refuse to talk to federal agents or the police.  But remember, the 5th amendment right to remain silent is only triggered in “custodial” situations.  If you are free to leave or stop the questioning at any time, that would not be considered a “coercive setting” for purposes of the right to remain silent.  But, in these settings you have the right to decline to speak to agents, and there are many reasons why you should exercise that right.

Can I plead the Fifth Amendment if I am a state or government employee under investigation at my job?

Yes.  The Supreme Court has held that forcing government employees to answer questions about potentially criminal conduct on pain of loss of employment constitutes compelled testimony under the Fifth Amendment.   Because the Amendment only protects us against state action, the same is not true for employees in the private sector.

For a more lengthy treatment of this subject, you can read this blog post.

Can I plead the Fifth in a civil trial or deposition?

Yes, you can plead the fifth in a civil trial or deposition.  But, whether you should or should not do so is often an issue that requires you to waive certain risks and benefits.

If you refuse to testify in a civil matter, there can be adverse consequences for the case.  For example, let’s say you are in a car accident and sue for negligence.  But at trial, you take the 5th because you do not want to admit to drinking, which the defendant’s lawyer will definitely ask you about.  The decision not to testify deprives you of the right to tell your side of the story, and if there are no other witnesses you can call, this may mean that you may not be able to win the case.

Also, if you invoke the Fifth Amendment during an earlier stage of proceedings, such as a pretrial hearing or in a discovery deposition, you will likely later be barred from testifying.  And, in some cases, if you are the defendant in a civil case and you refuse to testify, the judge may instruct the jury that they can draw an “adverse inference,” which means to assume that the facts would not have been favorable to you had you testified.

Does the Fifth Amendment right to remain silent apply if I am subpoenaed to testify before a grand jury?

Yes, you can claim the Fifth before a grand jury.  Before we get into the details, recall that a grand jury is a group of 16 to 23 people impaneled to investigate cases and issue indictments.  The prosecutor presents her witnesses, documents and other evidence to the grand jury and it decides if there is probable cause to indict.

So how does the grand jury implicate the Fifth Amendment?  Because compliance with a grand jury subpoena is mandatory.  Refusing to testify can result in a fine or imprisonment for contempt.  In the language of the Amendment, you are being “compelled” to testify.  So, the 5th Amendment right applies.

Of course, many grand jury witnesses have no need to plead the Fifth.  The classic example is the man caught standing in the teller line during a bank robbery.  Or, the example above with the witness to a car accident.

Other cases are not so clear.  Let’s say you are subpoenaed to testify about a work colleague suspected of fraud, as in the example of the administrative assistant.  Might the prosecutor suspect you were in on it?

The best way to decide if you should plead the fifth is to consult an attorney with experience in grand jury matters.  The attorney will review the facts, probably talk to the prosecutor, investigate the facts, and decide if you should take the Fifth.

Your lawyer may counsel you to take the Fifth even though you claim innocence. To repeat what has already been said in this post – you can take the Fifth even if you are innocent, including before a grand jury.  Even if you claim innocence, the government might still use your testimony against you if it can be combined with other evidence to show guilt.

Let’s go back to our example of a work colleague suspected of fraud to see how this might happen.  Even if you deny knowledge of his fraudulent activities, the prosecutor can question you before the grand jury about the extent of your relationship.  If you admit to a close relationship, that admission could be a “link in the chain” of evidence used to convict you of fraud or perhaps acting as an accessory.  You may therefore decline to answer questions about your relationship with your work colleague on Fifth Amendment grounds even if you claim ignorance of his alleged fraud.

Let’s assume you do plead the Fifth, how would that work?  If your attorney notifies the prosecutor of your intentions, your testimony may be called off.  If the prosecutor does not withdraw the subpoena, you still have to appear.  Federal grand juries usually sit at the courthouse and your attorney can accompany you there.  However, your lawyer will not be able to enter the grand jury room itself.  You should therefore be ready to assert your rights yourself with a simple prepared statement such as “I decline to answer on Fifth Amendment grounds.”  You are also allowed to exit the grand jury room as many times as you like between questions to talk to your counsel.

Can I invoke the Fifth Amendment if I have received a subpoena to produce documents?

In some cases, you can invoke the Fifth Amendment in response to a subpoena to produce documents.  This is so because the act of production itself can indicate guilt.  Here is how one federal Circuit Court of Appeals explained it:

Specifically, the act of production communicates at least four different statements.  It testifies to the fact that: i) the documents responsive to a given subpoena exist, ii) they are in the possession or control of the subpoenaed party; iii) the documents provided in response to the subpoena are authentic; and iv) the responding party believes that the documents produced are those described in the subpoena.

Invoking the Fifth Amendment in response to a subpoena for documents is sometimes called the “act of production privilege.”

This does not mean that you can simply ignore the subpoena.  You will quickly find yourself being called before a judge to explain why the subpoena went unanswered.  You will have to notify the prosecutor that you are invoking your act of production privilege.  An attorney experienced in investigations can be of great assistance in effectively exercising this right.

Can I plead the Fifth if subpoenaed to testify or produce documents to a congressional committee?

Yes.  The Supreme Court has held that the Fifth Amendment right against self-incrimination is available to recipients of congressional subpoenas.

Does my company have Fifth Amendment rights?

Your company does not have any Fifth Amendment rights.  Therefore, if a subpoena is directed to a company rather than an individual, the company itself cannot plead the Fifth.  Prosecutors are aware of this and will subpoena a company rather than an individual wherever possible to avoid Fifth Amendment litigation.  However, you may still be able to claim an “act of production privilege” (see above) if you will be the one responsible for producing the documents on behalf of a company.

Can the Fifth Amendment Right to Remain Silent be Waived?

Yes, the right can be waived.  We have already mentioned one obvious case of waiver in our discussion of Miranda rights above – that is, where the privilege is explicitly waived in writing.

Other cases are not as obvious.  If a witness attempts to plead the Fifth part way through his testimony on a particular subject, it may be too late.  Why?  Because he is considered to have waived the right by initially agreeing to testify about a particular subject. This is sometimes referred to as “selective assertion” of the Fifth Amendment and it is generally not allowed.  The rationale for the rule is that allowing a witness to make selective assertions of the Fifth deprives his opponent of a fair right to cross examine him.

To guard against waiver, it is often advisable to make your Fifth Amendment claim as broad as reasonably possible.

What if the prosecutor responds to my Fifth Amendment invocation by giving me immunity?

If you resist a government subpoena to testify or produce documents on Fifth Amendment grounds, the government may respond by giving you immunity as to those statements or documents, meaning it will promise not to use them against you.  Because the statements or documents may no longer be used against you in light of the immunity, you may no longer have a valid Fifth Amendment claim.

There are many details to consider where the government attempts to grant immunity, and a detailed discussion of them is well beyond the scope of this post.  You should consult an attorney experienced in government investigations to represent you in negotiations with the government involving a grant of immunity.

What happens if I exercise my Fifth Amendment right to remain silent at my criminal trial?

As mentioned in passing above, a defendant’s decision not to testify at trial cannot be used against him.  If the trial is before a jury, the judge will instruct the jury that they can draw no adverse inference from a defendant’s decision not to testify.  Here is a standard jury instruction on this point, used by many federal judges:

The defendant chose not to testify in this case.  Under our Constitution, a defendant has no obligation to testify or to present any evidence because it is the government’s burden to prove a defendant guilty beyond a reasonable doubt.  A defendant is never required to prove that he is innocent.

Therefore, you must not attach any significance to the fact that a given defendant did not testify.  No adverse inference against a defendant may be drawn by you because he did not take the witness stand, and you may not consider it in any way in your deliberations in the jury room.

The prosecutor is also prohibited from making any comment during his closing argument about the defendant’s decision not to testify.