What You Need to Know About Your 5th Amendment Rights

What You Need to Know About Your 5th Amendment Rights

“I plead the 5th.” You’ve heard it plenty of times on television.

“You have the right to remain silent.” You’ve heard that too. You’ve even read about it on this blog, whenever we’ve advised you to invoke your right to remain silent while in custody.

But do you really understand your 5th amendment protections? If you don’t, you could make a mistake which removes the protections you’re entitled to. Here are a few things you need to know whenever you deal with law enforcement or the court system.

#1) The 5th Amendment only applies if you’re under compulsion to provide information to the government, and in cases where the information is indeed incriminating.

This means it applies when you’re in police custody, or in a case where you’re being called to testify under oath as a witness, and such testimony could incriminate you for the crime at issue or related crimes. You have to be providing a statement of some kind for the privilege to apply.

You won’t receive 5th Amendment protection just because the consequences could be embarrassing, or even because they could lead to a civil lawsuit.

#2) You have to invoke your 5th Amendment rights, or they don’t apply.

The 2013 case Salinas v. Texas involved a murder case in which the police interrogated petitioner Salinas for many hours without his receipt of Miranda warnings. In addition, the police had not placed him into custody.

During the interrogation he refused to answer a question about the murder weapon. Later, the prosecutor went on to use Salinas’ silence as evidence of his guilt.

Salinas eventually brought the case before the Supreme Court, claiming that the prosecutor violated his 5th Amendment rights by using his silence against him.

The Supreme Court ruled against Salinas. In writing the majority opinion, Justice Alito wrote: “To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who ‘desires the protection of the privilege…must claim it’ at the time he relies on it.”

Remaining silent isn’t enough. You have to say something explicit like, “I’m sorry, but I prefer not to answer that question,” or “I’m invoking my 5th Amendment rights.”

#3) The 5th Amendment won’t protect you if you lie.

Lying to federal agents is a crime, and because lying can be used against you in court, it’s a bad idea when you’re dealing with state or local police officers, too.

The Supreme Court settled the question of whether you could use your 5th Amendment rights to protect you if you choose to lie to a federal agent in the 1998 case Brogan v. United States.

In this case, the defendant, Brogan, lied when federal agents asked him whether he had taken any bribes. He was trying to use a 5th Amendment Privilege and a principle known as the “exculpatory no,” which excludes false statements that consist of the mere denial of wrongdoing.

In his opinion, Justice Scalia wrote: “The Fifth Amendment does not confer a privilege to lie, E.g., United States v. Apfelbaum, 445 U.S. 115, 117. His final argument that the ‘exculpatory no’ doctrine is necessary to eliminate the grave risk that §1001 will be abused by overzealous protectors seeking to “pile on” offenses is not supported by the evidence and should, in any event, be addressed to Congress.”


If you’re not sure whether it’s a good idea to answer a question and don’t have an attorney present, it’s always safest to say, “I’m sorry, I prefer not to answer that question” in a case where you are not “compelled” and “I invoke my 5th Amendment rights” in situations where you are.

You can also answer any question with a statement that you will only answer questions with an attorney present.