The term ‘pleading the fifth’ has become very common on television shows and in movies. Even those who have no connection with the law have heard this phrase on television. The phrase actually refers to the Fifth Amendment to the United States Constitution and states that defendants and witnesses cannot be forced to incriminate themselves on the stand. Sometimes during a case it is better to remain silent, and that is when pleading the fifth becomes a good idea.
During the trial, the defendant has the right to choose whether they want to testify or not. The judge, prosecution or defense attorney has no right to force the defendant. But if the defendant does choose to take the stand, they may not choose to answer some questions and ignore others. The Fifth Amendment right is waived off once the defendant takes the stand. The law asks the jury to keep in mind that pleading the fifth does not mean that the defendant is guilty. They might be choosing to stay quiet because they feel threatened or scared about the outcome.
Even though the defendant waives of their right to plead the fifth when taking the stance, this is not true for witnesses. They can choose to plead the fifth in order to protect themselves and answer only those questions that do not implicate them along with the defendant. The Fifth Amendment does not apply to DNA and fingerprint evidence because the law does not consider it to be testimonial.
Whether you are a defendant or a witness thinking of taking the stand, it is important to discuss the possible implications with an experienced defense attorney. The attorney will elaborate your rights and give you advice according to the circumstances.