This blog post is the second in a three-part series exploring the Fifth Amendment to the United States Constitution. To see the other posts in this series, click here.
In TV shows and in movies, characters are often heard to say, "I plead the Fifth" or "I exercise my right to not incriminate myself" or "under the advice of counsel, I assert my Fifth Amendment privilege." This statement is also commonly heard in real life. Recently, a Hillary Clinton IT staffer "Pleaded the Fifth" 125 consecutive times in response to questioning. And, of course, Detective Mark Furman, formerly of the Los Angeles Police Department, famously exercised his Fifth Amendment rights during the O.J. Simpson murder trial.
So, what does the Fifth Amendment privilege actually entail? The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. The essence of this basic constitutional principle is the requirement that the State, which proposes to convict and punish an individual, must produce the evidence against the individual by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his or her own lips.
The Fifth Amendment privilege allows an individual to refuse to answer official questions put to him or her in any proceeding, civil or criminal, formal or informal, where the answer might incriminate him or her in future criminal proceedings. The privilege only applies to people who have reason to believe their answers to questions will harm them. For example, if answers could expose a person to criminal charge or penalties, the privilege applies. However, if there is no evidence of danger, the privilege does not apply. Moreover, if the consequence of testifying against oneself is removed, for example by a grant of immunity, the privilege no longer applies. In this latter situation, the person would then have to testify, even though doing so may be unpleasant.
As with most areas of the law, there are many nuances to the Fifth Amendment that can only be assessed by a trained legal professional. If you are in a situation where you may be forced to incriminate yourself, it is important to contact a lawyer right away. Grant Borgen of Bird, Jacobsen & Stevens, P.C. handles issues involving the Fifth Amendment and is always available for a free consultation.