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Pleading the Fifth: Your Right Against Self Incrimination

September 26, 2017 By Jeff King

Many Americans who watch television or movies on criminal proceedings, or read news reports of trials, know that a witness can “plead the Fifth.” But what does pleading the Fifth, sometimes termed “taking the Fifth,” mean?


The Fifth refers to the U.S. Constitution’s Fifth Amendment. The Fifth Amendment protects citizens against self-incrimination. The Fifth Amendment states “No person…shall be compelled in any criminal case to be a witness against himself…”


In practice, this means that during a trial, a defendant does not have to testify if the statements would give evidence that could be used to argue that he or she is guilty of a crime. When the defendant practices this Fifth Amendment right, it is referred to as “pleading the Fifth” or “taking the Fifth.”


Because the issues concerning the Fifth Amendment and Miranda rights in any trial are very complex, it is prudent to have an experienced Texas criminal defense lawyer like Jeff King on your side in any criminal proceeding. If you or someone you love is facing criminal charges, call today to make sure your rights are zealously defended.


While the U.S. Constitution was originally intended to apply only to Federal criminal trials, in practice the protections of the Fifth Amendment extend to state and local jurisdictions and to civil trials as well.


When Pleading the Fifth Works and When It Doesn’t

Bear in mind that the pleading the Fifth can be used for some questions and not for others. If a defendant does want to answer some questions, and does so in court, it will be considered a waiver of Fifth Amendment claims.


It is also wise to consider the effect of pleading the Fifth on a jury. First, although juries are routinely advised not to consider it, some individual jurors might privately do so, and consider it proof of guilt.


Miranda Rights: An Extension of the Fifth Amendment

The same television, movies, and news stories that refer to “pleading the Fifth” often refer to the “Miranda” rights of someone who has been arrested. “Miranda rights” mean that police arresting an individual must inform the person, at the time of arrest, that they have the right to remain silent. They must also be told that they have the right to have an attorney with them during any police questioning and the right, if they cannot afford an attorney, to have a government-appointed one.


Miranda rights are so named because they were codified into law as a result of a U.S. Supreme Court ruling on a case titled Miranda v. Arizona.


The ruling stated that Fifth Amendment rights had to be extended to apply not only to courtroom testimony, but to any event outside a courtroom involving testimony and personal rights.


If the police fail to give Miranda warnings, any testimony gained can be ruled inadmissible in court, because of the Supreme Court’s ruling.


Some rulings by courts since Miranda v. Arizona have held that any line of police questioning before a person is arrested does not violate Miranda rights.


Background on “Pleading the Fifth”


To understand why the Fifth Amendment was written into the U.S. Constitution, it helps to know a bit of its history.


Parts of the U.S. Constitution follow the standards in English criminal law at the time it was written. In the 1600s, the Puritans were considered dissenters against the established church of England. They were sometimes arrested and tortured in order to make them state their religious doctrine. The custom at the time was to consider them guilty if they did not confess.


As a result, the right against self-incrimination became part of English law in the mid seventeenth century. When the Puritans emigrated to America, they brought English law with them. The framers of the U.S. Constitution were trained in English law, and wrote many aspects of it into the document.


Eventually, the right against self-incrimination was placed in the Fifth Amendment. As such, it is part of the Bill of Rights.


It is because of this history that U.S. juries are cautioned not to regard pleading the Fifth as evidence that the defendant is guilty. Juries are to treat it as a neutral fact, and not to consider it when deliberating about the trial.


Need an Experienced Texas Criminal Defense Lawyer?

Dallas criminal defense attorney Jeff King can help you understand your rights in relation to the law. If you are facing criminal charges, don’t settle for second best when it comes to your reputation and your freedom. Call 469-399-7001 to arrange a free case review today.


Additional “Pleading the Fifth” Resources:

  1. Cornell Law School. Legal Information Institute. Fifth Amendment.
  2. United States Government. Government Printing Office. Fifth Amendment.
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