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 to incriminate yourself. This right comes from the Fifth Amendment of the Bill of Rights in our U.S. Constitution.

Typically, you would plead the Fifth when you’re called to testify in a trial or when being deposed. However, much of the public confuses taking the Fifth with an excuse to avoid testifying. In actuality, you can’t refuse to answer any relevant question, unless the answer will incriminate you. If your answers to the questions could be used to convict you of a crime, you can assert this right.

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.

There are some exceptions to these rules. Because 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 EVEN ONE question during the proceeding, the protection of the Fifth Amendment is lost.

Although the Fifth Amendment generally only protects you against matters that may later be used against you, in some cases the spousal privilege protects you against making incriminating statements against your spouse.

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

If you or a loved one is arrested, you will need an experienced and aggressive attorney to defend you. William Daley is a San Diego criminal defense and San Diego DUI lawyer with over thirty years of experience defending his clients and getting their charges reduced or dismissed. Call THE LAW OFFICE OF WILLIAM DALEY at (619) 238-1905 to set up a free 30 minute consultation today!