A closer look at the Fifth Amendment of the U.S. Constitution — II

Last week, our blog started providing some basic background information on the Fifth Amendment, which sets forth several distinct constitutional protections and limits on police procedure. As always, the intent was to help shed some light on the sometimes confusing area of criminal law.

In keeping with this theme, today’s post will examine how the Fifth Amendment protects individuals from self-incrimination at both the state and federal level.

I’ve heard the phrase “plead the Fifth” used quite a bit, what does it mean?

The language of the Fifth Amendment provides, in part, that no person “shall be compelled in any criminal case to be a witness against himself.” This essentially means that defendants cannot be forced to testify at criminal trials.

Similarly, the Fifth Amendment allows those witnesses who testify at criminal trials to refuse to answer questions if they believe that doing so would prove self-incriminatory. This is likely the context in which you’ve heard “plead the Fifth.”

Does the Fifth Amendment’s protection against self-incrimination only apply in the courtroom?

No. Thanks to the decision of the Supreme Court of the United States in Miranda v. Arizona, the Fifth Amendment’s protection against self-incrimination is applied to any scenario where personal freedom is somehow curtailed.

Does this mean it applies to arrests?

The Fifth Amendment’s protection against self-incrimination applies anytime law enforcement officials take someone into custody. Indeed, they must inform all suspects of what are known as their Miranda Rights, including:

  • The right to remain silent
  • The right to have an attorney present during interrogation
  • The right to secure the services of a government-appointed attorney if they are unable to cover the cost of hiring a private attorney

We will continue to take a closer look at the Fifth Amendment’s protection against self-incrimination in our next post, including the conditions under which a suspect can waive their Miranda rights and what happens when a suspect’s Miranda rights are violated.