Where the term ‘plead the Fifth’ comes from

Chances are, you've heard the phrase

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Chances are, you’ve heard the phrase “plead the Fifth.”
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Chip East/Reuters

  • Many people have heard characters “plead the Fifth” on TV shows and movies.
  • The term comes from the Fifth Amendment to the US Constitution, which guarantees a defendant’s right not to provide self-incriminating testimony in a criminal trial.
  • Used colloquially, it can mean “I’d rather not answer that” for the sake of not admitting something.
  • The Supreme Court has upheld a person’s right to invoke their Fifth Amendment right without being considered guilty for it by a jury.

Whether you’ve heard the term tossed around colloquially or you watch a lot of court shows, you’ve probably come across the phrase “plead the Fifth.”

But you may not have realized it’s your constitutional right.

‘Plead the Fifth’ comes from the Fifth Amendment to the Constitution

As you can probably gather from context clues, when someone “pleads the Fifth,” the person is excusing him or herself from answering a question, typically when it could incriminate themselves.

The term comes from the Fifth Amendment to the Constitution, which outlines some of the rights a person has when facing criminal charges. The amendment reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The clause being referenced here is “nor shall be compelled in any criminal case to be a witness against himself,” or what’s known as the privilege against self-incrimination.

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“Plead the Fifth” can often be heard on criminal procedural shows, like “Law and Order.”
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NBC

Colloquially, ‘plead the Fifth’ is used when you don’t want to incriminate yourself. Legally, it can also protect you in court.

In some cases, a court may force a person to testify in a case, sending them what’s called a subpoena. What this clause of the Fifth Amendment does is prevent the prosecution from mandating the defendant come to the stand and testify against themselves and then being held in contempt of court if they refuse.

So, if you hear a person – whether in a legal setting or a casual one – “plead the Fifth,” they’re invoking their right to avoid giving information that could incriminate them.

The amendment passed as part of the Bill of Rights in 1789 and was ratified in 1791, but more recent Supreme Court cases have tested the limits of the privilege against self-incrimination – namely, that a jury should not be able to infer guilt from a person pleading the Fifth, thus making a person worse off for utilizing their right guaranteed by the Constitution.

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