Kushner Law Group, PLLC
Kushner Law Group, PLLC
Vigorous Advocates Fighting For Your Rights

When can you “plead the Fifth” as a witness?

On Behalf of | Feb 17, 2022 | Criminal Defense |

Most everyone can recite some approximation of the Fifth Amendment of the U.S. Constitution. It says, in part that no one “shall be compelled in any criminal case to be a witness against himself.” 

The amendment has been clarified over the centuries by U.S. Supreme Court rulings. For example, in 1924, the court ruled that a person could also “plead the Fifth,” as we commonly say, in a civil case if answering the question could potentially have criminal consequences. A ruling in a 1944 case stipulated that organizations have no Fifth Amendment right to withhold evidence like documents on the grounds that they could be incriminating.

Generally, however, Supreme Court rulings have broadened people’s ability to use the Fifth Amendment. For example, a 1951 ruling said that a witness in a case could take the Fifth if they believed that their testimony could be used as a “link in the chain” to build a case against them – even if what they testified to didn’t directly involve any illegal activity on their part.

The Fifth Amendment can protect the innocent

But why would a person who knows they’ve done nothing illegal still plead the Fifth if they’re asked questions as a witness? In a 2001 Supreme Court case, the justices noted that the right against self-incrimination provided by the Fifth Amendment “protects the innocent as well as the guilty.” The court added that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing.” The ruling noted that innocent people “might be ensnared by ambiguous circumstances.”

Witnesses in a judicial proceeding can choose to plead the Fifth to certain questions while answering others. If a defendant chooses to testify on their own behalf, however, they’ve waived their Fifth Amendment rights and must truthfully answer all questions.

Cases involving white collar crimes often involve large numbers of people with highly varying degrees of legal culpability. If you’re questioned by authorities or called as a witness in a case against someone else, it’s crucial to understand your rights as well as your obligations – and to fully understand the Fifth Amendment before you invoke it. Would answering a question potentially lead to legal jeopardy for you or would not answering it lead to more scrutiny of your actions? It’s wise to have legal guidance before you talk to any authorities.