When Should You Plead the Fifth in Kansas?

Use these links to jump to different sections:

• Know Your Rights: The Fifth Amendment
• Your Silence Cannot Be Used as Evidence of Guilt in a Criminal Trial
• To Testify or Not to Testify: A Kansas Criminal Defense Attorney Can Help

If you have seen any police procedurals, you are probably familiar with the concept of “pleading the Fifth.” However, you may not be sure of when and how a defendant should actually plead the Fifth in practice. The term “Fifth” comes from the Fifth Amendment—a section of the U.S. Constitution that contains some of your most important individual rights. In this article, you will learn the key things to know about taking the Fifth in Kansas after alleged criminal activity.

Know Your Rights: The Fifth Amendment

The Fifth Amendment to the United States Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” In effect, this means that you have the right to hold your silence if you are facing potential criminal liability. It is useful to distinguish between your Fifth Amendment right and remaining silent more generally. Here is what you should know:

• Pleading the Fifth: Technically speaking, the Fifth Amendment right against self-incrimination can only be invoked in certain situations. For example, it is often invoked in response to a compelled communication such as a subpoena or compelled testimony in criminal court.
• Remaining Silent: Miranda rights also arise from the Fifth Amendment. You are not required to answer a police officer’s questions. You can invoke your Miranda rights and decline to respond during police questioning. While this is not technically “pleading the Fifth,” the concept is similar.

Your Silence Cannot Be Used as Evidence of Guilt in a Criminal Trial

Many people are worried that pleading the Fifth will make them appear guilty—say, on the witness stand before a judge or jury. It is an understandable concern. After all, declining to answer direct questions can sometimes come across as “suspicious” to a layperson.

That being said, United States law is clear: A person’s silence cannot be used as evidence of guilt in a criminal case. If you refused to answer a police officer’s question—whether at the scene of an incident or in an interrogation—the prosecutor cannot introduce that as evidence in court. Further, juries in criminal cases are instructed that pleading the Fifth is not evidence of guilt.

To Testify or Not to Testify: A Kansas Criminal Defense Attorney Can Help

Whether or not it is the best strategy to plead the Fifth depends on a wide range of different factors. As noted previously, taking the Fifth cannot be used as evidence of guilt. However, you may lose out on your opportunity to testify. A person facing serious criminal charges should consult with a defense lawyer who can help them evaluate the risks and benefits associated with testifying. Ultimately, pleading the Fifth is complicated—it is always best to address this issue with guidance from a skilled criminal defense professional.

If you were arrested and you have any questions about pleading the Fifth, reach out to an experienced Kansas criminal defense attorney for legal advice. If you’d like to learn more about this area of the law, please see our criminal law overview.