TV dramas that are loosely based on the American legal system often have a trial scene where a lawyer is asking the witness several questions and the witness “pleads the Fifth.” Once the character pleads the Fifth, he no longer has to speak on the subject and a loud gasp is heard in the courtroom as the witness defiantly walks off the stand.
Pleading the Fifth Amendment in real life is not as dramatic, but it does give the user several benefits. Here are some things you should know about invoking the Fifth Amendment.
What is the Fifth Amendment?
The Fifth Amendment of the U.S. Constitution provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…nor shall [any person] be compelled in any criminal case to be a witness against himself…”
The Fifth Amendment protects witnesses from having to testify if they may incriminate themselves in the process through this testimony.
When Can the Fifth Amendment Be Invoked?
Witnesses can assert the Fifth Amendment against self-incrimination in both civil and criminal proceedings. They can claim the privilege in state or federal court in trials, depositions, administrative law proceedings, and investigatory proceedings such as grand jury hearings. However, the privilege does not apply to people who fear exposure to prosecution in countries other than the United States.
What’s the Difference between Invoking the Fifth Amendment in Civil versus Criminal Cases?
There really is no procedural difference in invoking the Fifth for Civil and Criminal cases. In both cases, a witness can invoke the Fifth in trials, depositions, administrative law proceedings, and investigatory proceedings.
It is not uncommon for a witness to be involved in a civil and criminal case at the same time. For example, a witness may be called to testify in a civil deposition while a criminal case against him is in its investigative stages. In this case, the witness will likely invoke the Fifth Amendment. Because a criminal proceeding’s consequences can be more severe than civil cases in that criminal findings can include prison or jail time, a witness may be able to get a judge to postpone (or “stay”) the civil matter until the criminal one is concluded. Even if no stay is granted, a witness would be better off invoking the Fifth Amendment in the civil case in order to prevent self-incrimination in the criminal case.
Can You Waive Your Fifth Amendment Privilege?
Yes. If a witness invokes the privilege, but later makes statements about the topic in question, he automatically waives the privilege as to that point. For instance, if a witness invokes the Fifth but answers questions about that specific subject matter later, the judge could decide that the privilege was waived. While a witness can waive the privilege after asserting it, judges are hesitant to rule that the privilege was waived because inadvertent waiver of the privilege can have serious implications.
Are There Any Limits on the Fifth Amendment Privilege?
There’s no limit on the amount of times you can invoke the Fifth Amendment in any proceeding. Hilary Clinton’s IT specialist recently invoked the Fifth Amendment 125 times during his deposition. However, not every disclosure can be subject of a Fifth Amendment assertion. Instead, only statements that the witness “reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used” are subject to the Fifth Amendment. The question then becomes whether the other side can use the statements against the witness. The witness is entitled to claim the privilege against self-incrimination if the other party could reasonably use the statements as evidence against the witness.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law
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