Pleading the Fifth

September 2024

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“I plead the Fifth.”  That sentence, and the constitutional right behind it, are well enshrined in our country’s history.  More than 100 years ago, a man appeared before a grand jury and answered questions this way: “With all respect …, I must decline to answer for the reason that my answer would tend to accuse and incriminate myself.”[1]

Over the years, that refrain has echoed in courtrooms across the country.  “A witness’s answer could range from ‘I refuse to answer on the ground that my answer may tend to incriminate me’ to the more mundane ‘On the advice of counsel, I decline to answer.’”[2]

The Fifth Amendment guarantees that no person “shall be compelled in any criminal case to be a witness against himself,” although not everyone chooses to invoke that right.  In this article, we analyze the right to remain silent, along with best practices and potential implications.

I.             In General

At the outset, we should correct one common misconception: yes, even innocent people may invoke the Fifth Amendment.  The Supreme Court has emphasized that the Amendment protects even “innocent men who otherwise might be ensnared by ambiguous circumstances.”[3]  Anyone with “reasonable cause to apprehend danger from a direct answer” may invoke the constitutional right to remain silent.[4]  After all, “truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”[5] 

On the other hand, the Fifth Amendment cannot be weaponized to a person’s own advantage.  The “protective shield of the Fifth Amendment should [not] be converted into a sword.”[6]  Therefore, a witness, “in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.”[7]  As that quote suggests, a Fifth Amendment invocation is generally “limited by topic or subject matter.”[8]  Even if a witness “pleads the Fifth” on one subject, she may still be questioned on other topics.

The right to silence can arise in at least three contexts, each of which presents unique considerations.

II.          Civil Cases

First, a person can invoke the Fifth Amendment right to silence during civil proceedings, although there may be downsides to consider.  For instance, the Amendment permits “adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”[9]

Although such inferences are permitted, they may not always be required.[10]  Several courts, including the Fifth Circuit, have suggested that it may be improper to decide a case based solely on a person’s choice to remain silent—for instance, “a party seeking summary judgment [cannot] rely solely on the other party’s exercise of her fifth amendment rights.”[11]

In addition, a person in court must “do more than simply make a blanket assertion of the privilege,”[12] although he “cannot be expected to explain in detail … what testimonial communication he would make that would tend to incriminate him, as that would eviscerate the very purpose of the privilege.”[13]

Because of that tension, courts should respond to an assertion by asking questions “only far enough to determine whether there is reasonable ground to apprehend danger to the witness from his being compelled to answer.”[14]  And if the court finds a potential danger, it “must uphold the privilege.”[15]

III.       Police Interactions

Second, what about in the criminal context—what rights does a person have when being questioned by law enforcement?  If the person is in police custody and “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”[16]  But he must communicate that desire “unambiguously.”[17]

The refusal must also be clear as to scope.  If a person refuses to answer questions on one topic, an officer might still ask questions about other topics.[18]

IV.        Criminal Cases

Finally, what happens if a suspect becomes a criminal defendant?  If charges are filed, new rules will apply during the prosecution.  For example, if a defendant previously invoked the Fifth Amendment after receiving Miranda warnings (such as “you have the right to remain silent”), a prosecutor may not use that post‑Miranda silence against the defendant.[19]  In the same way, a jury “may not draw adverse inferences against a defendant merely because of his choice to remain silent.”[20]

Even if a defendant pleads guilty, Fifth Amendment rights still apply in the sentencing context.[21]  And the sentencing court may not decide factual questions by drawing an adverse inference from a defendant’s silence.[22]

[1] Brown v. Walker, 161 U.S. 591 (1896).

[2] Evans v. City of Chi., 513 F.3d 735, 740 n.4 (7th Cir. 2008).

[3] Ohio v. Reiner, 532 U.S. 17, 21 (2001) (cleaned up).

[4] Id. (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)).

[5] Id. (citing Grunewald v. United States, 353 U.S. 391, 421–22 (1957)).

[6] United States v. Robinson, 485 U.S. 25, 32 (1988) (quoting United States v. Hastings, 461 U.S. 499, 515 (1983) (Stevens, J., concurring)).

[7] Mitchell v. United States, 526 U.S. 314, 321 (1999). 

[8] United States v. Rought, 11 F.4th 178, 188 (3d Cir. 2021) (collecting cases).

[9] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

[10] Hinojosa v. Butler, 547 F.3d 285, 291–92 (5th Cir. 2008) (“In general, the decision as to whether to admit a person’s invocation of the Fifth Amendment into evidence is committed to the discretion of the district court.”); see also Hernandez v. Theriot, 709 F. App’x 755, 757 (5th Cir. 2017) (unpublished) (“Hernandez has failed to adduce any case law that indicates that a fact finder is required to draw such adverse inferences.”).

[11] State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 119 n.3 (5th Cir. 1990) (citing United States v. White, 589 F.2d 1283, 1287 (5th Cir. 1979) (“[W]e accept the proposition that a grant of summary judgment merely because of the invocation of the fifth amendment would unduly penalize the employment of the privilege.”)).

[12] United States v. Stafford, 273 F. App’x 319, 320 (5th Cir. 2008) (unpublished).

[13] Id.

[14] Id. (quoting United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir. 1976)).

[15] Id.

[16] Miranda v. Arizona, 384 U.S. 436, 473–74 (1966).

[17] Berghuis v. Thompkins, 560 U.S. 370, 381–82 (2010) (remaining silent does not unambiguously invoke the Fifth Amendment right to silence); Davis v. United States, 512 U.S. 452 (1994) (not enough to say “maybe I should talk to a lawyer”).

One Louisiana court even decided that it was insufficient for a suspect to tell police: “I know that I didn’t do it, so why don’t you just give me a lawyer dog ‘cause this is not what’s up.”  See State v. Demesme, 2017-KK-0954 (La. Oct. 27, 2017) (Crichton, J., concurring).

[18] See United States v. Ivy, 929 F.2d 147 (5th Cir. 1991) (“Ivy expressed his unwillingness to answer questions about where he obtained materials to make a bomb, and Lieutenant Waller honored this request by moving to a different subject.”).

[19] Doyle v. Ohio, 426 U.S. 610, 619–20 (1976).

[20] Hinojosa, 547 F.3d at 291.

[21] Mitchell, 526 U.S. at 326.

[22] Id. at 327–28.

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