The Fifth Amendment to the US Constitution grants the right not to testify against oneself in court, but this right is limited and does not apply if it would incriminate another person. It is available to any witness in criminal or civil trials when testifying under oath. Defendants who invoke this protection usually refrain from appearing. Witnesses can use this protection on an “on and off” basis. Refusing to answer questions can be overcome by offering witness immunity or plea deals. The phrase “plead the fifth” is also used in casual speech.
“Apply the Fifth” is the commonly used phrase in the United States legal system that describes a person’s right not to share self-incriminating information in a trial. The fifth here refers to the Fifth Amendment to the US Constitution, which grants various rights to people, including the right not to testify against yourself in court. It is important to note, however, that the scope of this right is very limited: the amendment does not allow a person to decide not to testify if doing so would incriminate another person. Outside the courtroom people sometimes use this phrase more casually, usually as a way of insinuating that they can’t say anything about a certain subject without making themselves look bad.
Who can use it
Fifth Amendment rights are available to any witness in criminal or civil trials, but apply only when a person testifies under oath. Most of the time they only apply to actual crimes, not just civil misdemeanors. Entitlement emerges in civil trials if a person is asked about something that might relate to a crime unrelated to the heart of the case.
When people who are themselves accused of crimes, known as “defendants,” invoke the amendment’s protections, they usually refrain from appearing. That means they never take the witness stand; in most cases they are not allowed to answer some questions but avoid others. Other witnesses, however, are usually able to choose and may use Fifth Amendment protections on a more “on and off” basis.
Even though the requirement stems from the Constitution, people usually don’t have to be US citizens to use it. A lot depends on your place of residence and legal status, but in most cases anyone brought to testify in a US court will be covered by the amendment’s protections.
Trial approaches
When a witness or defendant testifies under oath and doesn’t want to answer a specific question on the grounds that it might be self-incriminating, they might respond with a variation of “I plead the fifth,” “I’ll take the fifth.” “,” or “I refuse to answer because that could incriminate me.” Most of the time, people do this if the information they would share would actually make them guilty of a crime for which they could be arrested or charged at the conclusion of their trial.
While refusing to answer questions can be a stumbling block for trial attorneys, there are some ways around witnesses who want to use this tactic. A common approach is to offer witness immunity. That is, attorneys can promise not to prosecute a witness in exchange for his or her potentially incriminating testimony. This is usually only a good idea if the witness testimony greatly bolsters the case or if it provides some sort of “missing link” of information needed to solve the case.
If the prosecutor is unwilling to grant immunity in exchange for testimony, either because the testimony is not so damning or because the admitted crime is too serious not to be charged, a prosecutor may file a plea deal with the witness. In a plea deal, a prosecutor promises to indict that witness on a lesser charge or recommend a lesser sentence in exchange for testifying. However, these approaches aren’t always foolproof, and defense attorneys often use information about these deals to attack the credibility of witness testimony.
The importance of honesty
Regardless of the approach, if a prosecutor obtains a witness in the dock, he must do so with reasonable belief that the testimony offered is true. Lawyers are prevented from knowingly allowing witnesses to make truly false statements on the witness stand, and doing so can open up the possibility of professional charges, fines and penalties. Trials in which knowingly perjury was given are also often ordered to start over, which is known as a “retrial.”
In casual speech
The legal phrase “to plead the fifth” is also sometimes used in everyday speech. People may say this in casual contexts when asked about something they just don’t want to answer, usually because that answer might make them look bad. The phrase has no legal weight outside the courtroom and is typically used as an idiom to imply, sometimes almost jokingly, that the speaker wants to avoid self-incrimination.
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