Understanding the Fifth Amendment: How You’re Protected Against Self-Incrimination

David Lindsey, Attorney at Law
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Fifth Amendment Constitutional Rights

Most people have heard the term “pleading the fifth.” It is used in television and movies on a regular basis, so most people have some idea what it means. But in reality, what it means to use the Fifth Amendment for protection can be complex and something you need to discuss with an experienced attorney.

“The Fifth” refers to the Fifth Amendment of the US Constitution. The purpose of the Fifth Amendment is to protect people against self-incrimination and prevent a person from having to serve as a witness against themselves. The amendment specifically states, “No person…shall be compelled in any criminal case to be a witness against himself…”

The right to protection against self-incrimination was important as the country was being formed, in part, because of the treatment the Puritans faced in the 1600s under the Church of England. They were often tortured into admitting their religious affiliation and if they refused to do so, they were considered guilty. English laws established to protect them against self-incrimination became part of the laws of the new land.

In a nutshell, pleading the Fifth means that you can’t be forced to say anything that can be used against you and that you cannot be forced to testify if what you would say could be used to argue you are guilty of a crime. Fifth Amendment protections are offered at both the federal and state levels.

The issues related to the Fifth Amendment and your Miranda rights tend to be complicated and can have a huge bearing on your case, so it’s important to discuss your Fifth Amendment rights with your attorney.

How Do I Know I Should Plead the Fifth?

This is an issue that needs to be discussed with your attorney as soon as possible when you are facing criminal charges.

In general, the less you say the better throughout the investigation phase of your case, but when it comes to speaking in court, whether or not it’s a good idea to use the Fifth Amendment varies from case to case.

The Fifth Amendment can prevent you from incriminating yourself while under oath, but it can also have a negative effect on the jury. After all, why wouldn’t a person take the stand and give testimony if he or she were innocent? But this isn’t always the case.

Despite juries being advised not to consider any implications of a defendant taking the fifth, it is human nature to be curious why a person would choose not to publicly defend him or herself. Even if you taking the fifth doesn’t affect them directly, it could have an indirect bearing on their opinion of you. Jurors are told to view it neutrally, but it can still affect the outcome of your case.

How Miranda Rights Grew Out of the Fifth Amendment

When you are arrested you must be read your Miranda Rights. These are things told to you by law enforcement that ensure you are aware of what you can and cannot do. As part of your Miranda Rights, you must be informed that you have the right to remain silent and to have an attorney present for any police questioning.

Miranda Rights are an outcome of the US Supreme Court ruling on the case Miranda v. Arizona. In that case, it was ruled that a person’s Fifth Amendment rights extend beyond the courtroom and apply to anything that involves testimony or personal rights. If you speak to law enforcement and you have not been read your Miranda Rights, anything you say after your arrest could be ruled inadmissible in court.

For a detailed explanation of Miranda Rights and how they affect you if you are arrested, check out this information from MirandaWarning.org.

If you’d like to know more about your Fifth Amendment rights or you have questions about how the Fifth Amendment applies to your case, contact Criminal Defense Attorney David Lindsey for a free consultation.

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