Many people assume that those who “plead the Fifth,” or invoke their Fifth Amendment rights when under law enforcement questioning or when testifying in court or other legal proceedings are guilty of some sort of crime. After all, the Fifth Amendment states that no one “shall be compelled in any criminal case to be a witness against himself….”
It’s important to remember that if a defendant in a criminal case chooses not to take the stand in their own defense jurors have to be reminded that they can’t take that as evidence of the person’s guilt. (Of course, it can certainly sway a person’s consideration of other evidence and the case as a whole.)
If a defendant does choose to testify in their own trial, they can’t pick and choose what questions they’ll answer. They’re considered to have waived their right against self-incrimination.
If you’re a witness, however, you have the right to plead the Fifth to specific questions. That’s because, unlike a defendant, if you’re subpoenaed to be a witness, you have to comply or face criminal penalties.
Supreme Court rulings have clarified legal interpretations of the Fifth Amendment
The U.S. Supreme Court has weighed in on Fifth Amendment matters throughout the 20th century and into the 21st. Typically, its rulings have broadened the grounds on which someone can plead the Fifth. For example, in a 1951 case, it ruled that a witness could take the Fifth if they had a reasonable belief that prosecutors could use their testimony as a “link in the chain” to build a case against them.
In a 2001 case, the court ruled that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing.” It also noted that the Fifth Amendment “serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”
Note that Supreme Court has also ruled that Fifth Amendment protections don’t extend beyond testimonial evidence. For example, a person can be legally compelled to provide a DNA sample and/or fingerprints.
Of course, it’s always advisable to plead the Fifth if you’re under questioning by authorities until you have legal representation. The decision to invoke those rights in any testimony as a witness or a defendant is a significant one and shouldn’t be made without legal guidance.