What Does It Really Mean To “Take the Fifth”?

The Fifth Amendment to the U.S. Constitution guarantees that an individual cannot be compelled by the government to provide incriminating information about herself – the so-called “right to remain silent.”  When an individual “takes the Fifth,” she invokes that right and refuses to answer questions or provide information that might incriminate her.

The Fifth Amendment can be invoked only in certain situations.

  • An individual can only invoke the Fifth Amendment in response to a communication that is compelled, such as through a subpoena or other legal process.
  • The communication must also be testimonial in nature. In other words, it must relate to either express or implied assertions of fact or belief.  For example, a nod would be considered a testimonial communication for purposes of the Fifth Amendment.  So would the act of producing documents or any other piece of evidence; the act of production communicates an implied assertion that the individual possessed the evidence.
  • Finally, the testimony must be self-incriminating, such that the information would provide a link in the chain of evidence needed to prosecute the individual for a crime. Thus, the information itself need not be incriminating; it suffices that the information would lead to the discovery of incriminating evidence.

Because the communication must be self-incriminating, an individual who has received immunity cannot invoke the Fifth Amendment as a basis for refusing to answer questions; any statements would not be incriminating because the immunity prevents the government from using those statements (or any evidence derived from them) in a criminal prosecution against the individual.  Likewise, an individual who has received a pardon may not have any basis for invoking the Fifth Amendment.  Finally, an individual who has been convicted of a crime and sentenced cannot invoke the Fifth Amendment.

When an individual takes the Fifth, her silence or refusal to answer questions cannot be used against her in a criminal case.  A prosecutor cannot argue to the jury that the defendant’s silence implies guilt.  And prosecutors typically cannot even call a witness before the grand jury if the prosecutor knows the witness will invoke the Fifth Amendment. 

But taking the Fifth can have severe consequences nonetheless.  In a civil case or a civil enforcement action, the judge or jury can draw an adverse inference to support liability when the defendant invokes the Fifth Amendment.  And an employee who invokes the Fifth Amendment in response to questions from federal agents who are investigating corporate wrongdoing might be fired as a result.

To learn more about corporate and executive criminal liability, follow us on LinkedIn.  “Brilliant lawyers with courtroom savvy” – Benchmark Litigation.  Copyright MoloLamken LLP 2018.

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