Protection Under the Fifth AmendmentA defendant or witness to a crime may not wish to speak about what he or she may have seen or heard at the scene or how he or she may have been involved in what took place. If this is the case, the defendant or witness may opt to “claim the Fifth?” When someone “claims the Fifth,” he or she is refusing to answer questions on the grounds that the answers may incriminate him or her. “Claiming the Fifth,” is relying on the rights provided through the Fifth Amendment of the United States Constitution. The Fifth Amendment states that “no person shall be compelled in any criminal case to be a witness against himself.” This means, an individual does not have to answer questions that may lead to his or her own prosecution for a crime. The decision to use your Fifth Amendment right against self-incrimination in a civil or criminal proceeding is a complicated one to make. The decision should not be made without first consulting with a knowledgeable criminal defense attorney. This will ensure the best decision is made regarding whether or not to “claim the fifth.” If providing a testimony could lead to you getting in trouble with the law, don’t speak before meeting and going over the facts of the case, from your angle, with a skilled defense lawyer.

Invoking “The Fifth”

A person can “claim the Fifth” to ward against self-incrimination in criminal and civil proceedings. They can rely on the Fifth Amendment in federal or state courts and in trials, depositions and other proceedings. Often, a criminal defense attorney will advise his or her client that it is best to “claim the Fifth” when being asked to answer questions that could be incriminating. However, there may be times when it is best not to rely on the right of the Fifth Amendment and answer the questions being asked. It is important to note that if a person invokes the Fifth before trial, he or she will be barred from offering testimony on the matter later, for example. It is important to discuss the issue with an attorney before “claiming the Fifth,” especially if you could supply credible answers to help form a strong defense.

Testifying and the Fifth Amendment

At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant’s own lawyer cannot force the defendant to take the witness stand if he or she does not want to do so. A defendant can’t answer some questions and not others, though. Once someone “claims the Fifth,” there is no opportunity to answer the questions later either. Jurors are told, however, that whether or not the defendant pleads the Fifth, this fact should not be taken into consideration when determining his or her guilt.


If you have additional questions about your Fifth Amendment right against self-incrimination, or need legal representation in the State of California, contact the Law Office of Peter Blair today to speak with a criminal defense attorney.