Fifth Amendment Right Against Self-Incrimination If you have watched any TV crime drama shows, you have probably seen a trial scene where the criminal defendant or a witness pleads the Fifth and refuses to answer a question. They are invoking—or at least pretending to—invoke their rights under the Fifth Amendment to the U.S. Constitution. What are your rights to plead the Fifth in real life?

What Are Your Rights Against Self-Incrimination?

The Fifth Amendment provides that no one “shall be compelled in any criminal case to be a witness to himself . . .” This important constitutional right protects you in criminal proceedings in both state and federal courts. It gives you the following rights:

  • You have the right not to testify in your criminal case, and the judge, prosecutor, or your attorney cannot force you to do so.
  • If you take the witness stand in your criminal case, you are waiving your right against self-incrimination.
  • If you do choose to testify, you cannot pick questions to answer and refuse to answer other ones.
  • Your refusal to testify cannot be used against you in a criminal trial determining your guilt.

Can You Assert Your Right Against Self-Incrimination in a Civil Case?

When you are charged with a crime, you can also face potential civil liability to the victim of your actions. For example, if you were charged with reckless driving that resulted in a car accident, you can face liability to the victims who suffered injuries in a civil case. Fortunately, your Fifth Amendment rights apply to many proceedings, including civil litigation, administrative hearings, grand jury hearings, and depositions. This means that you can refuse to testify in the civil case if it could lead to you facing criminal charges.

However, if you plead the Fifth in your civil case, the jury can take this into account when making their decision. In addition, if you invoke your Fifth Amendment rights, you may be prohibiting certain evidence from being introduced in your defense. If you waive your right against self-incrimination and testify, you will be required to answer all the questions—even if they are self-incriminating.

Can You Refuse to Testify as a Witness in a Civil or Criminal Case?

You have a right as a witness in a civil or criminal case to invoke your right not to testify if it could lead you to facing criminal charges. This is true even if the charges would be unrelated to the case where you would be testifying. However, your rights are different depending on if you are a witness or a criminal defendant.

As a witness, you could be forced to testify if you are served with a subpoena. You may be able to invoke your right against self-incrimination regarding questions that may incriminate you but still be required to answer questions regarding unrelated matters.

Does the Fifth Amendment Right Against Self-Incrimination Apply to the Taking of Blood Tests and Fingerprints?

Unfortunately, your right against self-incrimination does not give you the right to refuse to be fingerprinted, to have blood tests drawn, or to have DNA samples taken. The Fifth Amendment only applies to communicative evidence, such as testimony. These tests are considered non-testimonial.

While you have a clear right against self-incrimination, how it is enforced and whether you may waive your right is subject to interpretation and many court decisions. If you are being charged with a crime or are even worried that you may be charged with a crime, you need to consult with an experienced criminal defense attorney before attending any court hearings where you would need to testify. This is true even if you are just a witness.

Are You Looking for a Criminal Defense Lawyer in Charlotte, NC?

If you are facing criminal charges, you need to speak with an experienced criminal defense attorney as soon as possible. Please contact us online or call our Charlotte office directly at 980.207.3355 to schedule your free consultation.


C. Todd Browning
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Charlotte Criminal Defense and DWI Lawyer