Legal Definitions - Taking the Fifth

"Taking the Fifth" or "pleading the Fifth" are common phrases that refer to an individual's decision to invoke their constitutional right against self-incrimination. This fundamental protection is guaranteed by the Fifth Amendment of the United States Constitution. It means that no person can be compelled to be a witness against themselves in a criminal case.

In practical terms, when someone "takes the Fifth," they are refusing to answer questions or provide testimony if their answers could potentially expose them to criminal charges or provide evidence that could be used against them in a prosecution. This right can be exercised in various settings, including during police interrogations, before a grand jury, or as a defendant in a criminal trial. If a defendant chooses not to testify in their own defense at trial, the prosecution is prohibited from commenting on that decision, and a jury cannot assume guilt based on the defendant's silence.

• Police Interrogation: Imagine a person, Sarah, is brought to the police station for questioning regarding a recent burglary in her neighborhood. The detectives begin asking her about her whereabouts on the night of the crime, her relationships with other neighbors, and if she owns any tools that could have been used to force entry. Sarah, feeling overwhelmed and unsure how her answers might be interpreted or used against her, states, "I invoke my Fifth Amendment right and will not answer any questions."

  Explanation: Sarah is "taking the Fifth" by exercising her right to remain silent during a police investigation. She is refusing to provide information that she fears could incriminate her, even if she believes she is innocent, preventing law enforcement from compelling her to speak.

• Grand Jury Testimony: A corporate executive, Mr. Davies, is subpoenaed to testify before a grand jury investigating allegations of financial fraud within his company. While Mr. Davies is not the primary target of the investigation, some of his past decisions regarding company accounting practices could be construed as negligent or even complicit in the alleged fraud. When asked specific questions about these practices, Mr. Davies' attorney advises him to "take the Fifth" on certain questions.

  Explanation: Mr. Davies is invoking his Fifth Amendment right to avoid providing testimony that could potentially lead to criminal charges against him. Even though he is a witness, his answers could expose him to legal jeopardy, so he can refuse to answer questions that might incriminate him.

• Criminal Trial Defense: John is on trial for assault. After the prosecution presents its case, it is his defense team's turn. John's lawyer advises him that while John maintains his innocence, testifying might expose him to intense cross-examination, where the prosecutor could highlight minor inconsistencies or past unrelated incidents, potentially confusing the jury or making him appear less credible. John decides not to take the witness stand in his own defense.

  Explanation: John is "taking the Fifth" by choosing not to testify at his criminal trial. The jury will be instructed that they cannot interpret his silence as an admission of guilt, nor can the prosecutor suggest that his refusal to testify implies he has something to hide.