The Fifth Amendment: What it is AND what it is NOT

So how many times have you heard about somebody taking the Fifth or pleading the Fifth and thought to yourself, “Well, that means that they must be guilty.” Well, you’re not alone. It’s pretty common misconception. So today I want to talk to you about what the Fifth Amendment is and what it is not and why some people take it. So stick to it, stick around and find out.

Happy Friday everybody. Hope you had a great week and like I said today, I want to talk to you about the Fifth Amendment and it comes up a lot and I see a lot of people, especially online, who posts things, sort of like this and it is a pretty common misconception and one that I wanted to address in a video.

So first things first. If somebody takes the Fifth or pleads the Fifth, is that the same as an admission of guilt? No. And I can’t say that clear enough. No, it is not. It is not an admission of guilt. In fact, if it was an admission of guilt, then the Fifth Amendment and all of the protections it provides, would be relatively useless because that’s the whole point of the Fifth Amendment.

So, there’s a lot of reasons why somebody, when being compelled to give a statement might exercise their constitutional right to plead the Fifth Amendment and to remain silent and to not answer those questions. So I wanted to go over some of those with you here. What are some reasons why somebody who is not guilty might plead the Fifth Amendment?

So first, this one’s easy. Because they can. All right. It is a right, guaranteed to them by the Constitution of the United States. They are allowed to do that. There aren’t any other constitutional rights that I can think of that when we exercise them, somebody says, “Well, that’s because you’re doing something wrong.” First Amendment says, we get the right to say what we want to say. When we do that, nobody says, “Well, that’s because you’re doing something wrong.”

Second Amendment, right to bear firearms. If we exercise that right it’s not because somebody says we’re doing something wrong. The Constitution allows us to say, “I’m not answering that question.” Think of it this way. How many times growing up, or even once you’re grown, has somebody that you don’t really like come up to you and ask you some type of personal question and your response is, “It’s none of your damn business.” Right?

The fifth Amendment kind of acts the same way. You are allowed to tell the government, “It is none of your business. I don’t have to answer that question. You can’t compel me to answer that question.” Right.So, reason number one why somebody might exercise their Fifth Amendment right is because they can.

Reason number two. How many times have you been speaking to a person or you’ve seen me do this in these videos, where you’ve had, what’s called a slip of the tongue. You mean to say one word and another word comes out. You mean to say one name and another name comes out. It happens to me all the time with my kids. I forget who I’m yelling at and I start naming them other things. What if that happens but the answer that you’re giving is the difference between you remaining free or going to jail for a very long period of time? We wouldn’t want that kind of mistake. That kind of Freudian slip, that kind of slip of the tongue, to dictate somebody going to prison. So we don’t force them to get up on the stand and answer questions that they do not wish to answer. That’s a big one.

Reason number three. How many of you out there have an absolute fear of public speaking? I know that’s one of the top five fears in America, is people have fears of public speaking. Now, again, imagine that not only are you publicly speaking, but you’re publicly speaking in front of six or 12 individuals who are deciding your future, deciding the fate of you, for the rest of your life. Pretty stressful and something that some people just physically aren’t able to do. So again, that’s a reason why they say, “I’m not going to testify. I’m not going to give a statement.”

Another reason, I went to school to become a lawyer. I am trained in cross-examination. I take classes every year and I practice almost on a daily, weekly, monthly basis, on cross-examining witnesses into saying things that I want them to say that they don’t want to say. I know how to do that. So, if somebody who is not trained in that sort of thing, who has never testified in open court before, doesn’t want to sit up on the witness stand and subject themselves to the cross-examination of a trained prosecutor, then that’s perfectly understandable. So that’s a reason why somebody should say, or somebody could say, “I’m going to take my Fifth Amendment right and not testify.”

I mean, and again, this one kind of relates to point number one, because they can, but remember, especially in a criminal case, the burden of proof is on the government. The government has the burden of proof, always, always, always in a criminal case. And so sometimes it is the advice of me, the lawyer that says, “Look, client, if you get up there and testify and you lay your story out, then the jury is going to inherently, because it’s what our brains do, do this thing where they start weighing, do I believe him or do I believe him? Do I believe party A, do I believe party B?” They start weighing this and whichever party comes out a little bit ahead, they may say that party wins. It’s something that our brains kind of automatically do. We can’t help it. It’s just how we go through life but what that does is, it’s shifting the burden away from the government and it’s putting the burden on you to prove yourself innocent, which you should never have to do.

So again, these are just some of the reasons. There are a whole host of other reasons why somebody might plead the Fifth, especially in a criminal case, when they have nothing to hide. They’re not guilty. They’re simply availing themselves of a protection that the Constitution guarantees.

So please keep that in mind. Don’t propagate this myth that if somebody pleads the Fifth, they must be guilty. It’s not true. It’s not accurate and it’s why judges specifically instruct juries that if a client does not testify, they are legally not allowed to hold that against them in any way, shape or form. It’s very, very important. It’s a vital, vital part of our criminal justice system.

So don’t want to make this video go way too long. There’s a whole lot of other things we can discuss when it comes to the Fifth Amendment, like the negative inference of a Fifth Amendment plea, when you’re dealing with a civil case. There’s when a Fifth Amendment is and is not applicable. All those are other videos I can do, so if there’s interest in any of those and what those mean, let me know. I’m happy to do them but for now, I just wanted to make it kind of a brief overview that answered the question, is the Fifth Amendment a way to imply somebody who’s guilty. And the answer is categorically no.Hope that helps.

I look forward to talking to you guys again next week. Have a wonderful weekend. stay safe out there and enjoy it.

Author Bio

James P. Whalen

James P. Whalen is the managing attorney and founder of Whalen Law Office, a Texas criminal defense firm offering personalized legal representation for various federal criminal charges. With a commitment to providing comfort and guidance during challenging times, Mr. Whalen serves as both an attorney and counselor to his clients, helping them navigate their cases while striving to restore normalcy to their lives.

In an inherently unbalanced criminal justice system, Mr. Whalen takes on cases with unwavering dedication. With decades of legal experience, he offers representation across various criminal charges, including white-collar crimes, violent crimes, drug charges, and more. Mr. Whalen’s numerous accolades, including Super Lawyer recognition and board certification in Criminal Appellate Law and Criminal Law, reflect his unwavering commitment to ethical and high-quality legal representation.

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