Maggie Cramer
October 11, 2019
Common Phrases
Even if you didn’t go to law school or have never been part of a criminal trial, you’ve probably heard the legal phrase plead the Fifth. That’s because it’s also used colloquially, outside of legal settings—not to mention, regularly during nearly every courtroom drama that airs on television today! But what does the phrase mean, both when used in front of and away from a judge’s ears? Read on to find out.
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Also sometimes phrased as to take the Fifth or demand the Fifth, to plead the Fifth literally means to refuse to answer questions under oath in a court of law—especially by a criminal defendant during a criminal case—because the answers to those questions might be self-incriminating. In other words, the responses you would give during your testimony could cause you to become a witness against yourself; they could implicate, or show, that you committed a crime or otherwise be harmful to you and your life.
The term became more widely used and was on the tip of everyone’s tongues in 1951 thanks to televised Senate hearings on organized crime. During the hearings, a series of crime bosses took the witness stand, with each stating, one after the next, that they “took the Fifth.” They sounded like a broken record, repeating the phrase over and over, and so it became more popular than it once had been.
Because of this popularity, the phrase can also be used figuratively in nonlegal contexts to convey an unwillingness to answer a potentially embarrassing, damning, or damaging question. In everyday use, it is often seen as a humorous expression and said as a response to an inquiry along with a laugh or chuckle. Here are some example sentences using plead the Fifth in this figurative way:
When asked what happened to his homework assignment, John replied, “I plead the Fifth!”
She plead the Fifth when her boss asked where she had been on her lunch break.
When my daughter asked if I ever did anything my parents didn’t like, I had to plead the Fifth.
Note that Fifth is always capitalized when writing this phrase. That’s because it is a reference to the Fifth Amendment to the United States Constitution. The Constitution of the United States established this country’s government and its laws, and guaranteed certain basic rights for its people. It was signed by delegates to the Constitutional Convention in Philadelphia—including George Washington, James Madison, and Benjamin Franklin—on September 17, 1787. The Bill of Rights, which encompasses the first 10 amendments to the Constitution, became part of the Constitution in 1791, further guaranteeing and protecting the rights of citizens. While the phrase is often italicized in this article, because the phrase itself is being referenced, you do not typically need to italicize the expression in writing.
The Fifth Amendment to the United States Constitution outlines a person’s rights when facing criminal charges and helps clarify criminal procedure. It was ratified as part of the Bill of Rights in 1791, and it applies to all levels of government, from local government to the federal government. The U.S. Supreme Court furthered the protections to citizens offered by this amendment through a clause in the Fourteenth Amendment.
Specifically, the Fifth Amendment says that no person:
“…shall be compelled in any criminal case to be a witness against himself…”
Thus, to plead the Fifth is to exercise one’s constitutional right to refuse to testify as a criminal defendant during a criminal trial. Despite the clear wording that this right applies to criminal cases, the right has been found to apply to civil cases as well.
The Fifth Amendment of the US Constitution also protects citizens against double jeopardy. The amendment’s Double Jeopardy Clause says that nobody should be prosecuted, meaning put on trial, twice for the same offense. Like plead the Fifth, the phrase double jeopardy is also sometimes used figuratively, to imply a risk of trouble or danger from two sources at the same time.
Proposed by Congressman James Madison, the more complete language that became the Fifth Amendment reads:
“No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without just compensation…”
The Fifth Amendment’s protection against self-incrimination, as stated above, was crucial in the establishment of Miranda rights after a landmark 1966 Supreme Court case. Also known as a Miranda warning, Miranda rights are now routinely delivered by law enforcement to a potential suspect before questioning. The warning begins, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.”
It is important to note that neither a judge nor jury should make any assumption about a defendant’s guilt or innocence based on them taking or pleading the Fifth. In fact, in the 1960s, the Supreme Court ruled that a jury cannot infer guilt because a defendant invokes their right to remain silent and refuses to testify. In other words, they cannot take a defendant’s refusal to testify into consideration when reaching a decision of guilty or not guilty. Although some people may find pleading the Fifth suspicious, it is not and should never be taken as an admission of guilt.
Note that witnesses can also exert their Fifth Amendment right to stay silent and to refuse to answer questions from a defense attorney, if doing so would implicate them in any crime (not limited to the case being tried and for which they are testifying). Also note that a defendant cannot plead the Fifth in objection to the collection of evidence, such as DNA or fingerprint evidence.
Curious about the right way to cite the US Constitution? Here’s how.
It’s interesting to note that protection against self-incrimination was likely born out of the Puritans’ refusal to respond to English investigators in the 17th century. The Puritans were a group of English Protestants who were discontent with the Church of England and sought to reform its practices. They were often coerced into stating their religions affiliation and their part in the religious reform movement that came to be known as Puritanism, and punished once they confessed. Ultimately, in the mid 1600s, English law did grant its citizens protection against self-incrimination. Still, Puritans fled religious persecution by coming to America. In so doing, they brought with them the idea that we should have the right to remain silent and protect ourselves in criminal proceedings. This idea is now woven into the legal fabric of this country.
PS: Ever wondered the difference between an attorney and a lawyer? Get the scoop here.
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