taking the Fifth
Taking the Fifth, or "pleading the Fifth" is a common phrase for invoking the Fifth Amendment privilege against compelled self-incrimination. The privilege allows a natural person to refuse to provide compelled testimonial communications when truthful answers could reasonably be used in a criminal case or furnish a link in the chain of evidence leading to prosecution. It is not a general right to refuse every question, avoid producing all evidence, or remain silent in every setting. The privilege may be invoked in a criminal trial, before a grand jury, in a civil lawsuit, during an administrative investigation, at a legislative hearing, or in another proceeding if the answers could expose the witness to criminal liability. In Hoffman v. United States, 341 U.S. 479 (1951), the Supreme Court explained that a witness is protected when an answer itself would support a conviction or would provide a link in the chain of incriminating evidence. A witness normally must appear and assert the privilege in response to particular questions; the judge determines whether the claim has a reasonable basis while giving the privilege a liberal construction.
The privilege protects testimonial or communicative evidence, not every form of compulsion. In Schmerber v. California, 384 U.S. 757 (1966), compelled extraction and testing of a blood sample was not testimonial. Fingerprints, photographs, voice identification, and similar identifying or physical evidence also generally fall outside the privilege, although other constitutional rules may regulate how the evidence is obtained.
Documents require a separate analysis. The contents of records voluntarily created before a subpoena generally are not privileged merely because they are incriminating. But the act of producing documents can itself communicate that the documents exist, are authentic, and are in the person's possession. United States v. Hubbell, 530 U.S. 27 (2000) recognizes this act-of-production doctrine. Corporations and other collective entities have no Fifth Amendment privilege, and under Braswell v. United States, 487 U.S. 99 (1988), a custodian generally may not withhold corporate records on the ground that producing them would personally incriminate the custodian.
A criminal defendant's decision not to testify may not be treated by the prosecutor or jury as evidence of guilt, as held in Griffin v. California, 380 U.S. 609 (1965). In a civil case, however, an adverse inference from a party's invocation may be permissible in appropriate circumstances; see, Baxter v. Palmigiano, 425 U.S. 308 (1976). A valid grant of use and derivative-use immunity can displace the privilege and compel testimony; under Kastigar v. United States, 406 U.S. 441 (1972), the government then bears the burden of showing that evidence used in a later prosecution came from sources independent of the compelled testimony.
[Last reviewed in August of 2026 by the Wex Definitions Team]
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