What It Really Means to “Plead the Fifth” And When You Should Use It

When a person “pleads the Fifth,” they are claiming the legal protections guaranteed by the Fifth Amendment of the U.S. Constitution. The Fifth Amendment is one of the cornerstones supporting our basic civil liberties and the freedoms we sometimes take for granted.  

Though there are other important rights guaranteed to us by the Fifth Amendment, when someone “pleads the Fifth,” they are invoking their Constitutional right to refuse to answer questions or make statements that might cause them to incriminate themselves. 

“No person . . . shall be compelled in any criminal case 

 to be a witness against himself . . .” 

from Amendment V, U.S. Constitution 

Who Is Allowed to Plead the Fifth? 

Under U.S. law, everyone enjoys the right to refuse to answer questions if the answers may tend to incriminate them. The same privilege applies to all people present in this country, whether you are an American citizen or an undocumented immigrant.  

The purpose of the Fifth Amendment’s protection against self-incrimination was to protect people suspected of crimes from being compelled to give verbal evidence against themselves, either in court, on the street, or in a police interrogation room. 

Some History the Fifth Amendment and the Right to Remain Silent 

The U.S. Supreme Court decided the Fifth Amendment’s protection against self-incrimination was so important that, in 1966, it ruled in the case of Miranda v. Arizona that the police and prosecutors could not use a defendant’s confession against them in court unless the police had first informed the arrestee of their right to remain silent. 

You might wonder, if the Fifth Amendment was part of the U.S. Constitution since 1791, why was it only in 1966 that the Supreme Court required police to notify the suspects they arrested about their right to remain silent? It was because many confessions offered as evidence in court before Miranda were obtained by harsh or abusive police treatment of arrestees. The law already gave everyone the right to refuse to answer police questions, but if you didn’t know about your rights, you wouldn’t know that you had a choice to refuse to answer questions.  

More importantly, the Supreme Court was attempting to impose a strong penalty against police who used violence or other forms of coercion to force the suspect to confess. The best way to stop the police from using police brutality to get a confession was to prevent them from using the confession in court. The same theory was applied to other police abuses of power like unreasonable searches and seizures. 

When You Should “Plead the Fifth” or “Take the Fifth” 

Everyone who is questioned by the police about suspected wrongdoing should “take the Fifth” and refuse to answer any questions at least until you speak with a lawyer. You do not need to be “under arrest” or in police custody to invoke your right to remain silent. If you are questioned by police on the street, you can politely tell them you choose not to answer any questions. 

Some people who were involved in illegal activity think they will be able to “talk their way out of it.” They try to answer police questions by explaining away facts the police confront them with, all in the hope that they will avoid being arrested or charged with a crime. We do not recommend you attempt that strategy.  

Attorney Ben Stechschulte is a top Tampa criminal defense lawyer with career long experience dealing with Fifth Amendment issues in police investigations, trials, and public hearings. Our litigation skills and knowledge of criminal law and procedure are what you need when you or your loved one face criminal charges. 

Won’t the Police Suspect You More If You Refuse to Answer Questions? 

The police never appreciate someone who declines to speak to them or answer questions. And yes, the police might well have stronger suspicions that you are involved in something illegal if you refuse to speak with them. But remember, if answering questions truthfully will incriminate you, then you are better off remaining silent. Lying to the police usually has no positive effects and only destroys your credibility if you do decide to tell them the truth after you consult with a lawyer. 

If you are not in police custody, the police do not need to read you your Miranda rights. But whether you are in custody or not, you have a legal right to refuse to answer questions.  

Taking the Fifth in Court or Under Oath (Being a Witness) 

Testifying in court or in another official proceeding is another occasion to consider “taking the Fifth”.  

If you are subpoenaed to testify, you are legally obligated to show up, but you are not obligated to answer anyone’s questions if your truthful answers would tend to incriminate you. You can invoke your Fifth Amendment right and decline to answer. However, there are times when answering one question about an incriminating event may lead to a court ruling that you waived your Fifth Amendment right on the whole topic.  

 On rare occasions, a judge may grant the prosecution’s request to grant you immunity from prosecution from any crime you admit to in your testimony. Once granted immunity, since you no longer face criminal prosecution from your answers, you can legally be ordered to answer questions. If you refuse then, you can be held in contempt of court and jailed until you purge your contempt by testifying.  

Protecting You at Trial 

Experienced Tampa criminal defense lawyers like Stechschulte Nell understand the legal system and will guide you through the most challenging legal circumstances. Contact our Florida board-certified attorney in Tampa, FL to get advice on your criminal defense strategies. Call 813-280-1244 or request a case review. 


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