Understand When You Can (And Maybe Should) Plead The Fifth

Most people know that if they are involved in a crime, the Fifth Amendment to the U.S. Constitution grants them the right to not incriminate themselves. However, "pleading the Fifth" can be a complicated decision. Here's what you should know.

If You Are Being Questioned By Police

The best time to exercise your right to remain silent, and not incriminate yourself, is the moment that you realize that you're a suspect in a police interrogation. The best thing to do is to decline to talk to officers in any police investigation (even if you're told that you aren't the subject of the investigation and you want to be helpful) until you've spoken with an attorney, like the ones at King Law Firm. You need to understand that the police are allowed to lie to you -- so it is simply smarter to consult with an attorney before you discuss your knowledge of any criminal activity.

For example, you may believe that you're only a witness to a crime because you happened to be driving the car when your best friend went into a liquor store at night and robbed it at gunpoint. After all, you didn't realize that was what he was going to do. However, when he jumped back in the car and tossed the gun down on the floor, he told you that he robbed the place and you frantically drove off because you didn't know what else to do. Driving off like that could end up getting you charged as an accessory after the fact.

If you've already been arrested, you absolutely want to stop talking until after you've spoken to your defense attorney. You may or may not have already said something to damage your case, but the less talking you do, the more likely that your attorney can try to mitigate the damages.

If You Are The Defendant In A Criminal Trial

If you are the defendant in a criminal trial, your right to not take the stand is clear. In most jurisdictions, juries are even told that they are not to make any inference of guilt just because you choose not to testify. Innocent people plead the Fifth all the time, for fear that their words will be twisted against them and they'll be wrongfully convicted or they'll have to reveal, on the witness stand, some secret they'd rather keep.

However, you have to consider an obvious problem: some people automatically believe that you're guilty if you plead the Fifth. Because of that, deciding whether or not to testify at your own trial is often a very difficult decision.

You also have to consider another facet of the decision: if you do decide to testify on your own behalf, you automatically waive your right to take the Fifth once it comes time for the prosecutor to start asking questions. If you testify at all, you have to testify all the way.

If You Are A Witness In A Criminal Trial

If you're a witness in a criminal trial, taking the Fifth becomes even more complicated. You may very well want to avoid testifying for any number of reasons. Maybe you're afraid that you'll somehow incriminate yourself, or maybe it's your best friend on trial and you don't want to send your friend to jail. However, unless what you have to say could reasonably result in your prosecution, you can't take the Fifth. If it can, the prosecutor can still compel your testimony by giving you immunity. If that happens, you don't have the right to refuse to testify. If you refuse, you can be jailed indefinitely on contempt of court charges.

If you've been involved in a crime, even if you don't think you are guilty of anything, talk to an attorney about the situation so that you can determine your potential liability should the case end up in court.