You've probably heard the term "I am taking the Fifth" many times - on TV or heard it in the news. What exactly does it actually mean to "take the Fifth"? Who can do it, and why?

What Does It Mean to "Take the Fifth?"

In criminal law, "taking the Fifth," also called "pleading the Fifth," is when you refuse to testify under oath because your answers could later be used as evidence against you.

This right is similar to the right to remain silent when being questioned by police officers and comes from the same amendment - the Fifth Amendment in the Bill of Rights, which says that a person can't "be compelled in any criminal case to be a witness against himself."

How Does It Work?

Typically, you would plead the Fifth when you're called to testify in a trial or when being deposed. Generally, you can't refuse to answer any relevant question, unless the answer incriminates you. If your answers to the questions could be used to convict you of a crime, you can assert this right.

The Fifth Amendment generally only protects you against matters that may later incriminate you. However, in some instances, the spousal privilege protects you against making incriminating statements against your spouse as well.

You can only take the Fifth to avoid answering incriminating questions in matters where you're a witness. If you're charged with a crime and choose to take the stand to testify in your own defense, you can't take the Fifth to avoid questions by the prosecution. You can, however, choose not to testify at all, and avoid all questioning on the witness stand.

Exceptions to the Fifth Amendment

Since federal grand juries have the power to subpoena people and force them to take the witness stand, defendants in such proceedings generally refuse to answer any questions, citing their Fifth Amendment rights. However, if the defendant does choose to answer any question during the proceeding, the protection of the Fifth Amendment is lost.

Also, the Fifth Amendment doesn't protect you from having to answer questions in civil cases once there is no possibility of a criminal charge. For example, once the criminal case is resolved, or if the statute of limitations has passed and you can no longer be charged.

You could ask for immunity for your actions in exchange for your testimony. This could reduce or dismiss any charges coming from your testimony.

Recent Example Pleadings

In more recent times, Rod Blagojevich, the former Illinois governor was arrested on federal corruption charges in 2008. He was accused of creating a bribery scheme to fill Barack Obama's empty Senate seat. His trial date is set for June 3, 2010.

Blagojevich's attorney says the former governor will take the stand in his fraud claim, but claim his Fifth Amendment right if asked about other charges against him. One suit involves 4 casinos forced to pay $90 million to 5 racetracks based on bills that Blagojevich signed to get campaign money.

Remember, taking the Fifth offers some protection, but there are other ways the court can make you testify.

Questions for Your Attorney

  • I don't know if my testimony will incriminate myself. Should I testify, or refrain?
  • In what situations must I testify against my wife?

Tagged as: Criminal Law, Fifth Amendment, criminal lawyer