May 15, 2025 | Kentucky Law
If you’ve ever watched a court movie, you have probably heard about someone pleading the Fifth. This phrase means someone is invoking the Fifth Amendment to the United States Constitution.
The Fifth Amendment protects people from self-incrimination. The rules around pleading the 5th and when someone can invoke these rights are not so simple. You may have heard that you have the right to remain silent, but that right has limits. There are times when one can and cannot invoke the 5th Amendment.
What Is Self-Incrimination?
Self-incrimination is a legal term. It means admitting guilt or providing information to the government that may lead to criminal prosecution. The 5th Amendment only applies to testimonial communications.
A person can incriminate themselves to the police or another government official. Self-incrimination often happens during police interrogation or while testifying in court.
When Can You Invoke the Fifth Amendment?
You can invoke the Fifth Amendment anytime that you are compelled by the government to make a statement that could incriminate you. Some common times when a person may invoke the Fifth Amendment are during:
- Police questioning
- Court testimony
- Depositions
- Traffic stops
- Congressional testimony
There are also times when you cannot invoke the Fifth Amendment.
When You Can’t Invoke the Fifth Amendment–Immunity
The most common scenario when pleading the fifth might not be available is when a person is granted immunity from prosecution. The government can grant someone immunity for crimes they testify about or crimes they discover because of the testimony.
This is common in criminal investigations with co-conspirators or accomplices. The government may need one person to testify against the other. To do so, they will grant the witness immunity, and therefore the witness cannot plead the 5th. The immunity can be either transactional immunity or use immunity.
Transactional immunity protects someone from prosecution for any offense stemming from the testimony. Use immunity doesn’t protect someone from future prosecution. It protects them from having their statements or evidence from their statements used against them. However, the government can still use independent evidence for a future prosecution.
Pleading the Fifth as a Witness
There is a specific procedure for pleading the 5th Amendment as a witness. Most people are surprised to learn that they still need to show up to court. This applies even if they received a subpoena and are planning to invoke their 5th Amendment rights.
Generally, the witness will take the stand and answer introductory questions. However, once the witness reasonably believes that their honest answers will incriminate them, they can plead the 5th. In practice, they may plead the 5th to some questions and not others.
However, witnesses should be careful. If a witness answers some questions that incriminate them, the court may find that they waived the 5th. It’s always best for witnesses who plan to plead the 5th to have the assistance of counsel to guide them through testimony.
Waiving the Fifth Amendment
A person can waive the 5th Amendment if they choose. A waiver can be either explicit or implicit. An explicit waiver may be required if someone is agreeing to waive their rights as part of a plea bargain.
An implicit waiver can happen through someone’s actions. This is common when someone is subject to police interrogation. Even if they know they don’t need to answer questions, they could waive their rights by answering anyway.
The danger of waiving 5th Amendment rights in court is that you generally cannot get them back. Once you begin answering the incriminating questions, you have to finish truthfully, or else you may be held in contempt.
The exception is during police interrogations. In this case, you can choose to answer questions and then stop at any point. However, any criminal defense attorney will tell you not to answer police questions without a lawyer.
Contact the Cincinnati Criminal Defense Attorneys at Suhre & Associates DUI and Criminal Defense Lawyers For Help Today
For more information, contact the criminal defense attorneys at Suhre & Associates DUI and Criminal Defense Lawyers give us a call today at (513) 333-0014 or visit us at our Cincinnati Law Office.
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