The Fifth Amendment protects US citizens from self-incrimination and double jeopardy, as well as government appropriation of private property. Witnesses can refuse to answer questions to avoid incrimination, but it may be seen as a sign of guilt. The Fifth Amendment does not protect against tax law violations.
The phrase taking the fifth is most commonly used in relation to the Fifth Amendment to the United States Constitution. This amendment, designed to protect American citizens from judicial abuses by the government, often addresses the areas of self-incrimination in a criminal or civil trial. The amendment also covers the concept of “double jeopardy” and the government’s appropriation of private property during an eminent domain dispute. The Fifth Amendment reads as follows:
No one shall be held liable for a capital or otherwise infamous crime, except upon presentation or indictment by a grand jury, except in cases arising in the land or naval forces, or militia, when on actual service in times of war or public danger; nor shall any person be liable for the same offense to be twice endangered to life or limb; nor shall he be compelled in any criminal proceeding to testify against himself, nor shall he be deprived of life, liberty, or property, without due process of law; nor may private property be used for public use, without just compensation.
To protect a trial witness from incriminating himself in criminal or civil liability, he may refuse to answer questions asked by a judge or attorney. As seen in countless mob movies and crime dramas, the witness can assert this right by stating that he is “getting the fifth” or “losing the fifth”. The founders of the US Constitution created the Fifth Amendment, in part, because of their historical awareness that confessions were often obtained through torture. By granting American citizens the right to refuse to answer questions in a court of law, it was hoped that the use of torture would be futile.
Taking the fifth, a witness isn’t necessarily helping his case. While the maneuver protects a person from inadvertently incriminating themselves in illegal activity, it can also hinder their ability to defend themselves. Judges and juries could also interpret one’s “pick the fifth” as a sign of guilt, indicating that the witness wants to keep the information withheld.
There are some scenarios under which individuals are not allowed to claim the fifth. The Fifth Amendment is not a total protection and in specific areas one may be forced to provide answers or information that will incriminate them in illegal actions. The most common of these is related to US tax law. Failure to file a required federal tax return, or failing to file your own income, would be a situation where the government’s need-to-know supersedes the Fifth Amendment.
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