What Does 'Plead the Fifth' Mean?

A constitutional primer if you’re in the position to submit to questioning

By Benjy Schirm, J.D. | Last updated on January 12, 2023

A witness is on the stand in the final day of a high-profile trial. The prosecutor, zeroing their questioning on the crux of their case, gets ever closer to incriminating the accused. The drama at its peak. Months of investigation have led up to this question. News cameras roll and the jury breathlessly looks on as the witness answers: “I plead the Fifth.”

This phrase has come up time and time again, but what does it mean and why does it happen?

The United States Constitution has protections for citizens to prevent the government from overstepping its powers. The Fifth Amendment states, “No person … shall be compelled in any criminal case to be a witness against himself.” This phrase protects people only in a criminal trial setting and only to the extent that they cannot be compelled to testify against their own interests.

Taking the fifth is a narrowly tailored shield. It only protects someone in very specific contexts. Only as a witness, in a criminal trial setting, or while being interrogated by a member of the government, can this protection be invoked. It is very similar to the protections given through Miranda rights. This ability to remain silent when being questioned, and your right to invoke the Fifth Amendment privilege of speaking to an attorney, are all protections granted by the U.S. Constitution.

Technically speaking, if one invokes their right to counsel, they are not “pleading the Fifth.” While one is using the Fifth Amendment protections afforded them under the law, the only place that someone can “plead the Fifth” is on the stand in a criminal trial setting.

This is an important distinction to make, because pleading the Fifth does not stop police from questioning someone in an investigation. Invoking the constitutional right to counsel, however, may stop the police from questioning a suspect in police custody or witness until their attorney is present. One must invoke that right clearly and unequivocally. (Unlike the Louisiana suspect in 2017, who allegedly said, “just give me a lawyer, dog,” which the state supreme court ruled was not an unambiguous invocation of his right to counsel.)

Criminal defendants accused of a crime are rarely put on the stand to testify in their own trial, yet this is where fifth amendment rights are relevant. However, in the example of a conspiracy trial, a witness may be called upon to testify against alleged co-conspirators. If by answering questions under oath that witness implicates themselves in a crime, which prosecutors could later use as evidence in charging them with a crime, they may “plead the Fifth.”

If you find yourself in any of these situations, you need an experienced criminal defense attorney. Stop talking to the police and unambiguously invoke your right to speak to a lawyer. If you are served a subpoena to be a witness in a criminal proceeding, it is in your best interest to consult with an attorney or contact a law firm understand your rights and to answer questions. For more information on this area of law, see our civil rights overview.

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