Fifth Amendment Rights


The Fifth Amendment to the Constitution provides that a person cannot “be compelled in any criminal case to be a witness against himself.” The Miranda rights are based on this amendment. However, even a person who is not protected by Miranda rights can assert his or her Fifth Amendment rights. Criminal law calls this action “taking the Fifth” or “pleading the Fifth.”

Any person who is a witness may assert his or her Fifth Amendment rights while testifying in court or otherwise under oath. Ultimately, it means that a person cannot be forced to make statements that will implicate him or her in a crime. The government cannot force individuals to cooperate and testify against themselves.

Process Behind the Fifth Amendment

When a person testifies, he or she will be asked questions from attorneys on both sides. During this process, the witness must answer all relevant questions, except if the answer tends to incriminate the witness in a crime. If the answer to any question may provide the government with evidence of a crime against the witness, the witness may assert his or her Fifth Amendment rights.

The Fifth Amendment generally only protects the witness from matters which may later incriminate him or her. However, certain privileges do exist for married couples. These are referred to as spousal privileges. Under certain circumstances, a person may refuse to testify against his or her spouse. For this privilege to exist, the couple must be legally married. A long-term couple does not qualify for this privilege. The prosecution can force a girlfriend or boyfriend to testify against a significant other.

The Fifth Amendment only applies to witnesses, not defendants. If a defendant chooses to testify, he or she must answer all of the prosecution’s questions even if these questions tend to incriminate him or her. A defendant may choose to not testify at all and avoid any questioning by the prosecution.

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Fifth Amendment Exceptions

In some instances, exceptions will exist to the Fifth Amendment. The basic exceptions are:

  • Statute of limitations
  • Witness immunity
  • Federal Grand Jury

If there is no ability for the government to charge a crime, then the witness cannot take the Fifth Amendment. For example, if the statute of limitations on a particular crime has expired, the witness cannot “plead the Fifth.”

The prosecution may provide immunity to witnesses. If a witness has been given immunity, then the witness cannot be charged later with any crimes to which he or she testifies.Houston criminal defense attorney Mario Madrid

Finally, the Federal Grand Jury may subpoena and ask information from any witness, even potential defendants.

To discuss testifying in a specific case or for more information on the Fifth Amendment, contact Madrid Law today at 713-877-9400.

Houston Criminal Defense Attorney Mario Madrid