Pleading the Fifth: What You Should Know


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Pleading the Fifth: What You Should Know

If you have ever enjoyed a crime drama on television, have ever listened to a true-crime podcast, have ever read a novel with a courtroom scene in it, or have been around the block a time or two, you have very likely heard the phrase pleading the fifth. Pleading the fifth in the media makes for a dramatic scene, and while you likely know that pleading the fifth means staying quiet on the matter at hand, there is a lot more to pleading the fifth than most people recognize. Having a better understanding of how it all works can come in handy if you ever need to actually plead the fifth.

The Fifth Amendment

The Fifth Amendment to the Constitution of the United States of America was added to the Constitution in 1791 as part of the Bill of Rights, and it is just as important today as it was then. The Fifth Amendment’s focus is safeguarding our liberties – especially in relation to criminal charges. Even if you are facing a criminal charge, the Fifth Amendment affords you specific rights that are important to know and to protect.

The Right to a Grand Jury in a Federal Case

Before you can be arrested for a federal crime, a grand jury, which is a group of independent jurors, must consider all the available evidence and conclude that the arrest is reasonable in the first place.

The Right to Protection against Double Jeopardy

You have the right not to be prosecuted for the same crime more than one time. This means that, unless a prior trial led to a mistrial, you could not be retried for the same crime (which is considered double jeopardy). If you are found innocent of the crime, you cannot be recharged when the prosecution suddenly comes up with new evidence against you.

The Right to Due Process

The right to due process is intended to ensure that, if you are facing a criminal charge, you are entitled to the full protection of the laws, which includes a fair legal process.

The Right to Be Fairly Compensated for Matters Involving Eminent Domain

Before the government can seize your land or property for the overall good of the public (such as to build a road), you must be compensated at the market rate.

The Right to Protection against Self-Incrimination

The right to protection against self-incrimination is where things get really interesting because this is what people generally mean when they plead or invoke the fifth. This is a very important component of the Fifth Amendment that allows you to not only remain silent when questioned by the authorities and/or in court but also to not have your silence used against you in the case. This is part of being innocent until proven guilty, and it matters.

If You Are Arrested

If you are charged with a crime, the officer who arrests you will read you your Miranda Rights, which specifically states that you have the right to remain silent. As such, you are not required to invoke your right to remain silent, and you may simply do so (by remaining silent). You certainly can, however, let the officer know that you choose to remain silent – and that you would like your attorney to be present (while you are at it). There are other situations, however, in which you must invoke your right to remain silent or to take the fifth.

When You Must Invoke Your Right to Silence

Until relatively recently, there was no specific legal requirement that you invoke your Fifth Amendment right to remain silent, but Salinas v. Texas changed all that. In this 2013 case, the Supreme Court cites another case in its finding that the privilege we are afforded not to incriminate ourselves is an exception to the general principle that the Government has the right to everyone’s testimony. In other words, the right to plead the fifth does not automatically extend to defendants who choose to remain silent during questioning in court or outside of arrest. If a witness wants to invoke protection against self-incrimination in these situations, he or she must specifically claim that protection, which puts the government on notice regarding his or her choice and allows it to respond accordingly. This can mean that the government will claim the testimony is not self-incriminating or that it will offer some form of immunity in exchange for the testimony. Two exceptions apply, and they are:

  • A criminal defendant at his or her own trial is not required to take the stand to specifically claim the privilege not to incriminate himself or herself.

  • If failure to claim the privilege not to incriminate oneself is due to government coercion, the failure must be excused.

In other words, if you are questioned regarding a crime (and are not under arrest at the time), you must invoke your Fifth Amendment right to remain silent by telling the person who is questioning you that you are pleading the fifth and will not be answering his or her questions, that you are taking the fifth and will not be answering questions, or that you are invoking your Fifth Amendment right/privilege to remain silent and will not be answering questions. It does not hurt to add – under the advice of counsel – to your statement. Mutely staring back at the person who is questioning you is not going to cut it in the eyes of the law. If you find yourself in such a situation and you let the officer questioning you know that you are invoking your constitutional privilege to remain silent, the fact that you did not answer any of his or her questions cannot be used against you if you are charged with the crime at a later date. If you fail to let him or her know, however, the fact that you refused to answer questions can be used against you, and it can hurt your case.


Pleading the Fifth: Pros and Cons

Pleading the fifth is not a great idea in every situation, and it is important that you understand the pros and cons of invoking your right to remain silent and make the right choices for you (in accordance with the situation at hand). To begin, if you are under investigation or think you might be, do not wait to find out if you need to voice your right to remain silent – instead, reach out to an experienced criminal defense attorney sooner rather than later. There are, however, some tried and true guidelines that generally apply.

Pro: Limiting Available Information

If you are under investigation but are not under arrest, the upside to asserting your right not to incriminate yourself is that the officers questioning you will have less information to go on, which can mean that no arrest will be forthcoming. Without the information that you are able to provide, there may be no case.

Con: Arousing Suspicion

While not invoking your right to remain silent cannot be used against you in a court of law, it can arouse the suspicion of the officers who are questioning you and might motivate them to dig deeper elsewhere – to figure out what you seem to be hiding. If the officers go out and question more witnesses and engage in more careful evidence gathering, it might bolster the case they have against you.

Pro: Buying Time

Even if you have absolutely no involvement in the crime you are being questioned about, you may simply have a healthy fear of being questioned by the police, and if this is the case, you are not alone. Ultimately, invoking your right not to answer questions because you prefer to have legal representation on your side is a valid response that is fairly neutral, and that can help to ensure that your rights are well protected moving forward.

Con: Dragging the Matter out Unnecessarily

If you have nothing to do with the matter that you are being questioned about and telling the officers what you know amounts to telling them very little, doing so may allow you to clear up the matter more quickly and put an end to it then and there. If this is the path you choose, however, it is important to move forward with clarity and purpose. And if things do go south for any reason (the police can be unpredictable at best), it’s time to plead the fifth and consult with an experienced criminal defense attorney.

Con: Casting a Pall

While juries are instructed not to read into a defendant’s decision not to take the stand, it can be difficult to extricate your right to do so from the way it makes you look, which is probably guilty. Jury members are human beings, and while it is easy to say you will not take a defendant’s decision not to testify into consideration, it can be difficult to accomplish when it comes to the jury’s deliberations. The fact is that the information may creep into one or more jurors’ decision-making processes.


How a Criminal Attorney Can Help

If you are facing a criminal charge, it is a good idea to understand your Fifth Amendment rights, but perhaps the most important step you can take is consulting with a dedicated criminal attorney for a wide range of important reasons.

Knowledge of the Judicial System

One of the most important reasons for working closely with a practiced criminal attorney is because of his or her keen knowledge of the judicial system. Criminal cases are notoriously complicated, and an error caused by your inexperience can cost you. Your attorney will take the guesswork out of the process and will help you make the right legal decisions for you in your unique situation.

Working Relationship with the Prosecutorial Team

Your criminal attorney has built up a working relationship with the prosecutorial team, which means that they trust one another to be on the up and up and are prepared to negotiate fairly with one another. Having this kind of working relationship can prove invaluable when it comes to making plea deals in relation to the charge you face and/or to the sentencing requirements involved.

Money Saver

When you think of hiring a criminal attorney, you probably do not think in terms of saving money, but in the long run, having a skilled attorney on your side can be a bargain. The cost of a conviction can be astronomical in terms of not only the penalties and fines you face but also the social ramifications involved. These can include:

  • Decreasing your social standing overall

  • Limiting your job opportunities

  • Making it more difficult to rent a home or to obtain a home loan

  • Limiting your opportunities as they relate to higher learning (in terms of school loans, acceptance into the school of your choice, and living on campus)

  • Causing you to lose professional licensure

Many of these can not only limit your ability to make a living but can also decrease your potential earnings overall. Bringing your strongest criminal defense can help you avoid a conviction or limit the financial strain that often accompanies a conviction. A good way to address the matter is to consider the cost of your experienced criminal attorney as an investment in your future.


Do Not Put off Consulting with an Experienced Killeen Criminal Attorney

If you are facing a criminal charge of any kind, Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a savvy criminal attorney who recognizes the gravity of your situation and who is committed to skillfully advocating for your case’s best possible resolution. Our trusted legal team has a wealth of experience helping clients like you prevail with favorable case outcomes, and we are here for you, too. To learn more about what we can do to help you, please do not wait to contact us online or call us at 254-501-4040 for more information today.

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