“Taking the Fifth”

What does it mean when a person invokes his rights under the Fifth Amendment to the United States Constitution or “takes the Fifth” or  “pleads the Fifth”  or “lawyers up” as they say in the vernacular.  Of course, you could actually teach an entire law school semester on the various nuances involved, so this is just a summary (in 2,000 words or less) of the issues and concerns raised by invoking the Fifth Amendment.

A Brief History of the Fifth

The Fifth Amendment to the U.S. Constitution provides that “no person … shall be compelled in any criminal case to be a witness against himself.” Before it ever appeared in the U.S. Constitution (fully ratified in 1791), the privilege against self-incrimination was employed widely throughout the 13 colonies. The early settlers and colonists brought the doctrine with them from England;  it is not an American invention.  It was added as the fifth  Bill of Rights to remove all doubt that it was the Law of the Land.  The 14th Amendment made it applicable to all of the States.  The US  Supreme Court then expanded the doctrine through a series of cases to apply not only to criminal cases and police interrogations, but also to “any other proceeding, civil or criminal, formal or informal, where [one’s] answers might incriminate him.”  The right also prohibits prosecutors from making reference to a defendant’s refusal to take the stand and juries are admonished in criminal cases that they are to make no inference from a defendant’s refusal to take the stand. The Court has also held that a person could invoke the Fifth Amendment due to a concern about future criminal proceedings which had not even commenced.

Wrong Perception of Its Meaning and Purpose

The general perception is that someone taking the Fifth is guilty or has something to hide.  In fact, many state courts even believed this relatively recently. The Ohio Supreme Court, in 2000, for example, ruled that someone who had denied all guilt or who would deny all guilt to questions posed could not invoke the Fifth Amendment.  That decision was soundly reversed by a unanimous US Supreme in 2001 in Ohio v. Reiner.  The Court in that case (which contained Scalia, Thomas, Rehnquist and O’Connor, hardly flaming liberals) reaffirmed that one of the Amendment’s  “basic functions … is to protect innocent men … ‘who otherwise might be ensnared by ambiguous circumstances.”    The Court went on to add that “truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth. ”

I know what you’re thinking: How can truthful answers from an innocent person incriminate that person? The answer lies in the meaning of “incriminate”; it does not mean to prove one guilty as most folks think.  Here is the Merriam-Webster Dictionary definition of the term:

“Main Entry: self–in·crim·i·na·tion

Pronunciation: \-ˌkri-mə-ˈnā-shən\
Function: noun
Date: 1911

: incrimination of oneself; specifically: the giving of testimony which will likely subject one to criminal prosecution

(emphasis added by me).

So that it is an innocent person who might be wrongfully prosecuted through his own testimony that the Amendment tries to protect; not a criminal with something to hide.  In fact, the Supreme Court views very expansive protection under the Fifth.  In Hoffman v. United States, the Court held that The Fifth does not protect just potential answers to questions that may be enough to support a conviction (“I shot him”, for example) but in fact “embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.”  That’s the ticket: the testimony need only furnish a link needed not to convict but merely to prosecute the potential defendant.

What’s always been curious to me is how when I talk to jurors during jury selection in criminal cases, about our Constitutional rights they will quickly wave the flag and state how they are the fabric of our lives and an integral part of what makes this country great; but when I then ask them which rights are the ones that our soldiers are fighting and dying for, many of those asked mention the rights listed in the First Amendment,some mention the Second Amendment and it routinely stops there. Jurors at first blush seem to think those two comprise the entire Bill of Rights. So I take great pains to get them to acknowledge that the rights afforded by the Founding Fathers those of us caught up in the justice system – those encompassed by the Fourth, Fifth, Sixth, Seventh and Eighth Amendments – deserve equal footing and equal protection. Among those great protections, the Fifth’s privilege against self-incrimination was unique to the US and clearly evidences the Framers’ belief of its importance to the fair operation of the criminal justice system.

So Why Doesn’t Everyone Who is a Potential Target  “Take the Fifth?”

I have no idea.  I wish I had an answer to that question.  Experienced litigators and particularly experienced criminal defense lawyers will tell you that 9 out of 9.95  times if there is any remote possibility that you may be charged with a crime or become a target of a criminal investigation or proceeding, you should “take the fifth.” Lawyers are often confronted by their clients (innocent and otherwise) with the concern about the negative perception attached to the Fifth. This comes up most often in two scenarios: when the police want to question someone before an arrest has occurred or when you represent a public person (politician, celebrity) or someone involved in a scandalous, high-profile situation.

Under the first scenario, lawyers are contacted all the time by people who have in turn been contacted by the police over an incident.  The police will tell the client that he is just wanted to answer “a few questions.”  The client will then be concerned, when you tell him that he should not answer any questions, that it will make him look guilty. This is when it needs to be explained that it does not matter what the police think. If they have enough evidence to make an arrest they will do so; if they don’t, then they won’t.  Your refusal to answer questions will not change any of that.  I usually also explain what I wrote above, that you want to avoid being prosecuted by providing any link to evidence. For example, lets say the incident involves someone being assaulted at a party.  A close friend of the target is the one who actually assaulted the individual. I tell the client that by admitting that he was at the party at the time of the assault and knew that someone was assaulted he has “confessed”  to 90% of what the government would otherwise have to prove. All they need now is some witness to say that the client was the one who assaulted the victim and their case is complete. Why provide that assistance when the Constitution says you don’t have to?  The most extreme example of this situation is a case from New York,  People v. Claudio.  Angel Claudio was at a place where someone was murdered. No evidence linked him to the crime; the police did not even have him on their radar.  He went and retained a private lawyer, allegedly experienced in criminal law. The lawyer advised Mr. Claudio that it was best he go to the police and tell them all he knew about the incident. He did so. The only problem is that all he knew was that he had been the one who killed the victim; he fully confessed.  In upholding the conviction, the Court of Appeals, NY’s highest court, held that while the lawyer was clearly incompetent and “valueless” the right to effective assistance of counsel does not attach until a person is arraigned. So since he had no right to  a lawyer at all, he had no right to a competent lawyer either. Also, in this regard, one thing that DNA  has absolutely proven is that many people falsely confess to crimes for many reasons.  So, don’t answer questions posed by the police if they are looking for a suspect.

Under the second scenario, folks in public positions or celebrities are often concerned about their image if they take the Fifth. They can’t have their blessed public believing that they are criminals.   But this is the fault of the misperception about the Amendment as described above. If the American public truly understood the purpose behind the Fifth Amendment, it would not be seen in such a nefarious light. A quick example of how concern over public image effected a public  person is presented in Martha Stewart’s case. She was the target of an insider trading investigation.  Apparently concerned over “how it would look” if she invoked the privileges of the Fifth Amendment  she decided to answer questions posed by the Federal agents conducting the investigation. The only problem is that if you are found to have  lied to any Federal agent conducting an investigation, you will be convicted of a separate Federal crime. So Martha was acquitted of insider trading charges but convicted of that separate Federal crime and served a year in a federal penitentiary.  Her current popularity proves that the public has gotten over this; I imagine they would have gotten over her refusal to answer questions even quicker, especially if she had been acquitted of all of the charges she was facing.  Bill Clinton would likely not have been impeached had he refused to appear or answer questions posed by the Grand Jury convened by Kenneth Starr; no charges came out of the “Whitewater” investigation other than perjury.  So public people need to balance the concern over their image with their concern over prosecution.

I recently represented a well-known R & B singer involved in an incident at a Louis Vitton store.  The Manhattan DA  had sought him for questioning and under our advice, he refused to answer any questions.  The result – he was never arrested, never called to testify and never exposed to prosecution.  A notorious judge in Suffolk County, NY used to have a huge stuffed fish  behind his desk in his chambers.  The plaque underneath read  “I’d be OK if I had just kept my big mouth shut.” An important reminder.


So I think the moral of this story is that the perception of the Fifth Amendment must be changed. The American people must be made aware that this  Amendment and the principle it encompasses have themselves gotten a bad rap –  it is not the refuge of the guilty, it is the safe harbor of the innocent. The Founding Fathers are revered (as they should be)  for their foresight and the value they placed on individual liberties against government intrusion. We hold the Freedoms of Speech, Religion and the Press in high esteem. National organizations and political subdivisions have been created to protect the Right to Bear Arms. Educators from law school and college professors to high  school teachers of civics and history need to remove the stigma attached to someone invoking their right and privilege to remain silent under the Fifth Amendment.  It is of no less value than any of the other rights I mentioned above.

Our criminal justice system was ostensibly designed to protect the innocent, not to convict the guilty. Yet in practice it generally favors the prosecution. Facing any accusatory governmental entity is a daunting task that will alter your life regardless of the outcome. The stress, the shame, the expense, the time drain, all will have lasting impact even if you are acquitted. Folks would be wise to take advantage of the few protections put in place by the Constitution that protect the accused.  The public must understand that choosing to do so is much more often a declaration of your innocence than an admission of your guilt.

13 replies on ““Taking the Fifth””

I write to add that it is so outrageous that law and order types, NYPD cops included, will lamblast folks who “take the Fifth” as crooks who are “hiding something”. But when the NYPD cops are accused of crimes they regularly “take the Fifth” and went so far as to obtain from New York City a contractual provision that allowed NYPD cops a 48 hour respite from answering any questions.

Dear Joe: Excellent point. You are talking about General Order #15 (GO 15). Every officer is instructed to invoke GO 15 anytime a shooting or any allegation of wrongdoing occurs. They get the opportunity without fail of being left alone for 48 hours. Everyone knows how crucial those 48 hours are also. I agree with you its hypocritical to make others look bad for doing what NYPD officers do as a matter of routine practice. Since neither I nor my client leaked information to the press about any appearances, this information could only have come from the law enforcement side of this investigation. Thanks for your comment

So my understanding is if you take the fifth and then answer a question it cancels out, but if you make statement before hand (Lois Lerner) it dos’nt cancel out. It boils down to ” keep your mouth shut”,….. unless you are not involved, right ?

No it means “Keep your mouth shut” whether you are involved or not. The point of the Fifth is to protect the innocent. If you are being questioned its because law enforcement thinks you have some involvement in it. You may not even know the angle they are working or what they are interested in. They may just want you to admit that you were at a particular location or with a particular person. So just say “No Thanks, I will not.”

How does this apply to someone who is the victim of a crime? This seems to imply that crime should not be reported to police for fear of becoming a suspect, and that any interaction with police should be viewed negatively as it puts you at risk of prosecution.

Well crime victims who are also perhaps committing crimes are often cautious about calling police, that’s nothing new. But most crime victims are innocent people who have no remote possibility of being prosecuted. So I would never hesitate to advise folks who are victims of crime to call police unless you are yourself involved in some criminality which may be revealed by your filing of a police report.

There is a great video, it’s only 45 minutes, by Professor James Douane, on You Tube at where in the first 22 minutes, he shows that saying the truth to the police, even if you’re innocent, can be enough to get you convicted, and that you should never talk to the police under any circumstances. And after he spoke he had a Detective from the Virginia Beach Police Department who got 22 minutes in rebuttal, and the first thing he said was Prof. Duane was 100% correct.

Leave a Reply to Mike Parker Cancel reply

Your email address will not be published.