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Plead the 5th Rights

We've all seen congressional hearings or courtroom dramas where someone answers a question by “pleading the Fifth.” The fifth refers to the 5th Amendment to the U.S. Constitution and is a protection against self-incrimination. The 5th Amendment protects individuals from being compelled to say something by the government.

If you are facing a government investigation or criminal prosecution and you want to know about your legal rights in California, contact Gorelick Law Offices for a free consultation.

What does the Fifth Amendment protect?

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 offense 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.

“The Constitution of the United States," Amendment 5.

The 5th Amendment protects individuals from being forced to testify against themselves. An individual who pleads the 5th cannot be required to answer questions that would tend to incriminate himself or herself. Generally, there is no penalty against the individual for invoking their 5th Amendment rights.

According to a Supreme Court decision, the 5th Amendment privilege can be, “asserted in any proceeding, civil or criminal, administrative or judicial, investigative or adjudicatory.” The witness can refuse to answer any questions that “the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”

The right applies to testifying against their own self-interests but generally does not apply to testifying about somebody else unless that testimony could incriminate the speaker.

Does Pleading the 5th Make You Look Guilty?

Some people worry that pleading the 5th will make them look guilty. However, just because you don't want to answer a question does not mean you did anything wrong. The Constitution gives people a lot of rights against government overreach or abuse of power. It is an individual's right to be able to use those rights to protect their life and liberty.

The 5th Amendment protections can be used even if someone has nothing to hide and is innocent of any crime. A person's words and admissions can be used against them even if they did nothing wrong. It is the prosecutor's job to get enough evidence to prove beyond a reasonable doubt that the suspect is guilty of a crime. The suspect does not need to be the one that gives the prosecutor any evidence against their own self-interest.

Example of Pleading the Fifth

Jake broke into Sarah's house to take back his computer that she would not return to him. Jake left with his computer and went home. Later, Sarah's house had burned down after a candle that had been left burning unattended.

The police knock on Jake's door and tell him they want to ask him some questions. Jake says he wants to have his lawyer present before he answers any questions. Jake and his lawyer sit down to talk to the police. 

The police ask Jake if he was at Sarah's house. Jake did not want to admit that he had broken into Sarah's house because he was worried that he would be prosecuted for burglary. When the police ask Jake if he was at Sarah's house, Jake responds, “on the advice of my lawyer, I invoke my 5th Amendment privilege against self-incrimination.”

Jake can plead the 5th even though he is innocent of burning down the house. The police may suspect Jake of arson. If Jake responded that he was at the house but did not start a fire, the police may charge Jake with arson even though he is innocent of that crime. If the police did not know about taking the computer, Jake admitting to it could also result in prosecution for burglary.

When Can You Be Forced to Testify?

As a witness in a legal proceeding, a person may be compelled to respond to questions. For example, a subpoena can be used to compel testifying before the court under penalty. A subpoena can also be used to compel someone to produce evidence.

If someone does not comply with the subpoena, he or she could be found in contempt of court an face fines and/or jail time. However, if the testimony may expose the witness to prosecution, the witness may still be able to plead the 5th.

Can I Plead the 5th to Not Give Fingerprints or Blood Samples?

Generally, the 5th Amendment rights against self-incrimination do not extend to fingerprints or blood samples for a DNA test. The Supreme Court has held these types of evidence as “non-testimonial.” Even if a fingerprint may incriminate a suspect, that suspect generally does not have a right to withhold the use of their finger to take a print.

Protect Yourself and Your Rights Against Self-Incrimination in California Criminal Cases

Lynn Gorelick has more than 30 years of criminal defense experience defending her clients in the East Bay. Before responding to questions that you worry may make you a suspect in a crime, talk to your criminal lawyer about your rights. If you or a family member is being investigated or has been arrested in Alameda or Contra Costa County, contact Gorelick Law Offices today.

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