There are a few legal principles in criminal law that almost every American knows. One of those is a person’s constitutional right to “plead the fifth”. It comes up again and again in Congressional testimony, media reports of ongoing investigations, and in movies and television shows ranging from police procedurals to mafia stories. So, what does taking the fifth mean? Where does this right come from? And, importantly, what can we infer if a person does plead the fifth?
What Pleading the Fifth Means
Taking the fifth is a colloquial term, not a legal one. Often when a person takes the fifth, they actually say something to the effect of: “I refuse to answer on the grounds that it may incriminate me.” While this sounds like an admission of guilt, it isn’t one, at least not legally.
It may sound like a technicality, but the fact that pleading the fifth is not an admission of guilt matters a great deal in any criminal prosecution. The U.S. Supreme Court has held that in a criminal trial, jurors cannot get information about a defendant’s refusal to answer questions or go on the witness stand in their defense.
The idea is that defendants, whether guilty or innocent, should not be punished for exercising a right under the United States Constitution. Both jurors and the public tend to make an adverse inference against anyone who pleads the fifth, which is why courts do not allow it to be used as evidence in a criminal trial.
Where Taking the Fifth Comes From
You may already know that taking the fifth refers to an individual’s rights under the Fifth Amendment of the U.S. Constitution. The Fifth Amendment packs in a lot of rights, including:
- Not being able to be federally prosecuted for a capital offense or other serious felonies without first being indicted by a grand jury
- Being charged twice for the same crime (double jeopardy)
- The right to due process and fair compensation if the government takes your property (eminent domain).
The Fifth Amendment is also where we get Miranda rights from.
The Fifth Amendment provides in part that “no person … shall be compelled in any criminal case to be a witness against himself.” The idea behind this provision is that the government cannot force you to testify against yourself — the Framers of the Constitution worried about a powerful government that could use torture and other coercive means to obtain confessions in court. By including the right against self-incrimination in the Bill of Rights, the Founding Fathers made sure that the government has less incentive to resort to strong-arm tactics in criminal prosecutions and avoid resorting to a kangaroo court to get convictions.
This principle has evolved over time into an ability to refuse to answer questions that may implicate you in a crime beyond an active criminal investigation or police interrogation. You can plead the fifth at any time, even if you are otherwise legally obligated to answer, such as through a court-issued subpoena or if you are called before Congress to testify on an issue of national importance.
Why Innocent People Might Plead the Fifth
The benefit of your Fifth Amendment right against self-incrimination is pretty clear if you know you’ve committed a crime. But what does the privilege against self-incrimination matter to innocent people? As previously noted, most jurors and the public are quick to jump to conclusions if you refuse to answer questions. A police officer or federal authorities may feel the same, motivating them to pursue a criminal investigation against you. Isn’t it then always in your best interests to answer questions fully if you have nothing to hide?
Unfortunately, it’s not always the best strategic choice to fully cooperate with law enforcement even if you are innocent. There are numerous examples of people who were not initially the target of any criminal investigation still landing in trouble with the justice system that could have been avoided by pleading the fifth.
Here’s an example: Let’s say you own stock in a pharmaceutical company. The Food and Drug Administration is about to deny approval for a new drug. This will harm the company’s stock price. While you aren’t aware of the FDA’s imminent action, your friend happens to run the company, and he’s well aware. He calls you to advise you to sell immediately but doesn’t say why. You do so, just a day before the stock takes a hit.
A few months later you get calls and visits from the Securities and Exchange Commission and the FBI, wondering about your incredibly lucky timing in selling your shares. Nervous, you try to justify your actions through fabrications and false statements, telling the FBI you prearranged the sale with your broker and had nothing to do with the FDA denial. But federal authorities eventually learn the truth, and your lies come crashing down. You are charged and convicted of obstruction of justice and lying to federal authorities — but not insider trading.
If you had initially pled the fifth, this might have been avoided. If this sounds familiar, it is because this is similar to what happened to Martha Stewart.
The Court of Public Opinion
As noted, the public tends to perceive taking the fifth as an admission of guilt. So, in some public testimony, such as before Congress, isn’t it better to tell the truth, even if there might be some information you don’t want made public? Or what about telling the truth (mostly) but avoiding or hiding the stuff you don’t want to come out?
The answer is no; lying in Congressional testimony or while on the witness stand is perjury, a crime under both state and federal law. And sometimes admitting something, even if you don’t think you’ve committed a crime, isn’t the best option for protecting 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. Baseball fans everywhere immediately assumed — correctly — that he had used steroids (McGwire later admitted it). His live testimony was considered a public relations disaster.
So, if he had used steroids and was willing to admit it later, why not just answer honestly? Because he was faced with a tough situation. If he was honest, he might have faced additional questions on national television regarding what steroids he used, where he bought them, and even may have faced criminal charges (although that isn’t certain). If he denied using them, as he had in the past, he would be committing perjury. So, taking the fifth was the least-bad option. Despite the criticism, McGwire was never convicted of a crime and remained involved in baseball.
Finally, it’s important to note that the protections you have in criminal prosecutions when taking the fifth do not apply in a civil case. A jury is free to make an adverse inference if you plead the fifth in a civil trial. For example, if you are suing another driver after being injured in a car crash, and you refuse to answer whether you had been drinking, the jury is free to assume you refuse to answer because you had, in fact, been drinking prior to getting behind the wheel.
So, Why Take the Fifth if Innocent?
The Fifth Amendment protects both the innocent and the guilty. An innocent person could plead the fifth if they are innocent of the crime being investigated, but answering could lead to minor, unrelated criminal charges. An innocent person may plead the fifth if they know they are innocent, but the situation looks bad for them and answering will only arouse more suspicion. These are just a few examples.
A Tough Decision
Of course, a blog on taking the fifth is not legal advice. Whether anyone should plead the fifth during a criminal investigation or any other legal matter is a complicated question. Deciding to do so is something to discuss with your criminal defense attorney (any communication with your attorney is protected by attorney-client privilege).
For the public, we are free to assume anyone taking the fifth is admitting guilt, as we are free to have an opinion on anything, so long as we are aware that pleading the fifth is not legally just admitting guilt by another name.
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