We’ve all seen it: in a dramatic Hollywood movie, a witness on trial refuses to answer certain questions by “pleading the 5th,” or, on the news, some prominent politician or celebrity “asserts their right to remain silent.”
But what does “pleading the 5th” really mean, and how does it apply to you and your rights?
At Chris Perri Law, an Austin, Texas criminal defense law firm, this question comes up a lot. Sadly, people often misunderstand their 5th amendment rights, and if you’ve been accused of a crime, the consequences of this misunderstanding can be disastrous.
In this article, we’ll walk you through everything you need to know about “pleading the 5th” and your legal rights when it comes to the 5th Amendment of the United States Constitution. Whether in Austin or out in the Hill Country, it’s essential to fully grasp what rights this law guarantees, as it may be up to you to assert them.
Written by Chris Perri Law
______________________________
The 5th Amendment: What Is It?
The 5th Amendment is a law that was added to the U.S. Constitution in 1791 as part of the Bill of Rights and still stands today. The focus of the 5th Amendment is to safeguard the liberties of individuals, especially those facing criminal charges. The 5th Amendment ensures that, even if you’ve been accused of a crime, you are still entitled to certain rights, such as:
A grand jury in federal cases. This means that, before you’re potentially arrested, a group of independent jurors must examine all the evidence and agree that an arrest is reasonable.
Protection against “double jeopardy.” This means that you cannot be prosecuted for the same crime more than once, unless the first trial resulted in a mistrial.
Due process. Essentially this ensures that you’re guaranteed a fair legal process when facing criminal charges.
Eminent domain. This means that the government must provide you with market-rate compensation if they seize your land for a public good, such as the building of a road.
Protection against self-incrimination. An example of this would be refusing to speak to a detective in a criminal investigation or to offer testimony at trial. This is also known as “the right to remain silent.”
This last clause is what people most commonly think of when they hear of the 5th amendment, and for good reason. When someone “pleads the 5th” or “asserts their 5th amendment right,” this is the constitutional privilege they’re claiming: the right to remain silent and not have this fact used against them. Remember, the U.S. Constitution also pledges that everyone—including those who’ve been arrested for a crime—should be seen as innocent until proven guilty.
This should hold true even if a defendant makes the decision to “take the 5th.”
______________________________
To Ensure Your Rights, You Must Actually Say the Words, “I Plead The 5th.”
Many people assume that the right to remain silent without judgment is automatically applied. While it is true that once you’ve been arrested for a crime you have the right to remain silent without it being used against you, as is explained in your Miranda Rights reading, the issue is not so simple for those who are under investigation, though not under arrest. In other words, if you’ve been arrested for a crime, then yes, you have this right automatically, but if you’re merely being investigated, then no, the right is not automatic.
This discrepancy is due to a relatively recent Supreme Court case called “Salinas vs. Texas.” In this case, which involved a homicide and two brothers, the Supreme Court ruled that a person’s silence in an investigation can be used against them unless that person explicitly states that they’re exercising their 5th amendment right.
This is one of the most misunderstood issues in criminal law, so let us be loud and clear: if an Austin Police Department detective or investigator contacts you, you have the right to refuse to answer their questions. However, you can only do so without penalty if you, or a criminal defense attorney representing you, states that you’re asserting your 5th amendment privilege.
Now, you can word this assertion in whatever way you’d like, as long as your point is clear. For instance, you could say:
“I’m taking the 5th and refusing to answer your questions.”
“I’m asserting my constitutional right to remain silent.”
“I’d like to exercise my 5th amendment rights and not speak to you.”
At Chris Perri Law, we recommend our clients add the phrase, “under the advice of legal counsel,” to help bolster their statement.
So keep this in mind: if you remain silent but fail to explain to a detective why, this can be used against you. For instance, if you’re later arrested for the alleged crime, the detective can testify at trial that you refused to speak to them and ignored their attempts at communication, which could make you appear guilty. However – this bears repeating – if you tell the detective that you’re asserting your 5th amendment rights and then remain silent, they cannot later bring this up in a court of law as evidence of your guilt.
______________________________
Assessing Whether or Not to Plead The 5th
There are pros and cons to pleading the fifth. If you find yourself in a situation where you’re unsure which avenue to take, it’s wise to reach out to an Austin criminal defense lawyer for guidance. Even if you haven’t been arrested but are under investigation or fear you might be, it’s usually a good idea to connect to an attorney to consider what approach is most strategic for your unique situation.
That said, some general guidelines apply to most circ*mstances. For instance, one benefit of asserting your right to remain silent, especially when under investigation but not under arrest, is that the detectives will have less information. Without your story, they may not be able to gather enough evidence to prosecute you.
However, if you take the 5th, it might raise the suspicion of investigators. While it is true that in a court of law, your silence cannot be used against you, the reality is that detectives may naturally start to wonder what you’re hiding. This could make them dig deeper and talk to more witnesses, which could ultimately strengthen their case against you.
Even if you’re completely innocent of a crime, there are times it’s still appropriate to utilize your 5th amendment right to remain silent. In fact, many people feel uncomfortable speaking to the police under any circ*mstances. That said, there are other times when speaking to a detective could be in your favor. The choice to cooperate is rarely a simple one, and getting a lawyer’s advice can often be very helpful.
Facing criminal charges or undergoing a criminal investigation can be a harrowing experience, but it’s important to remember that you don’t have to go through it alone. If you’re debating whether to plead the 5th, the best step you can take is to reach out to a qualified defense attorney that you trust. Together, you should be able to come up with a plan that makes sense for you.
______________________________
