Do Innocent People “Take the Fifth?”

The phrase “Taking the Fifth” has received a lot of attention lately in light of IRS official Lois Lerner’s high-profile refusal to testify before Congress on May 21. Senator John Thune (R., S.D.) stated that Lerner’s decision to take the Fifth “would suggest there’s an admission of guilt right there.”

But what does it mean to “Take the Fifth” and is it fair to assume that someone who takes the Fifth is guilty?

“Taking the Fifth” refers to invoking your Fifth Amendment Constitutional Right to remain silent. The Fifth Amendment states:

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 offense 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 Fifth Amendment privilege extends not only “to answers that would in themselves support a conviction,” but also to answers that might tend to incriminate someone, i.e. answers that would “furnish a link in the chain of evidence needed to prosecute the claimant.” Hoffman v. United States, 341 U.S. 479, 486 (1951).

Too often, society believes that someone who asserts their Fifth Amendment privilege against self-incrimination is guilty or trying to hide something. However, it is important to remember that “one of the basic functions of the privilege is to protect innocent men.”Grunewald v. United States, 353 U.S. 391, 421 (1957). Grunewald stated:

Too many, even those who should be better advised, view this privilege as a shelter for wrong-doers. They too readily assume that those who invoke it are either guilty of a crime or commit perjury claiming the privilege. . . . The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.


An example given in the Grunewald case is if an innocent person agrees to testify before a grand jury and then testifies differently at trial, then any inconsistencies between their testimonies could be used against them to demonstrate they are lying and are, therefore, guilty.

A person may choose to exercise their Fifth Amendment privilege against self-incrimination when they are compelled to testify before grand juries, Congress, or certain administrative agencies that are not required to abide by the Rules of Evidence, and do not provide the person the right of cross examination, a lawyer, judicial oversight, and other basic due process protections like there would be at a trial.

As stated in Grunewald:

For many innocent men who know that they are about to be indicted will refuse to help create a case against themselves under circumstances where lack of counsel’s assistance and lack of opportunity for cross-examination will prevent them from bringing out the exculpatory circumstances in the context of which superficially incriminating acts occurred.

Id. at 423.

A defendant’s decision to exercise his Fifth Amendment privilege at trial also cannot be considered by the jury in determining his guilt or innocence.  It is also improper for a prosecutor to comment on a defendant’s election not to testify.

In his concurrence in Grunewald , Justice Black wrote:

It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution.

Id. at 426.

It is up to the government to prove the defendant guilty beyond a reasonable doubt.  It is not up to the defendant to prove that he is innocent.

Therefore, is it absolutely unfair to assume that someone who takes the Fifth is guilty. The decision of whether to take the Fifth is a difficult and complicated one. My partner, Martin Pinales, always tells clients, “You never get in trouble for what you DON’T say.” So, when in doubt, the best advice is to invoke your Constitutional right to keep your mouth shut!

Posted by: Candace C. Crouse