What You Should Know about the Fifth Amendment to the United State Constitution Criminal Process and Other Areas of the Constitution Are Covered under the Fifth Amendment to the US Constitution |
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| Author:
| Anderson, Henry P. |
| ISBN: | 979-8-3567-6800-2 |
| Publication Date: | Oct 2022 |
| Publisher: | Independently Published
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| Book Format: | Paperback |
| List Price: | USD $10.99 |
Book Description:
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What Exactly Does "Taking the Fifth" Mean? A person's "right to stay silent"--the so-called "right to remain silent"--cannot be violated by the government, according to the Fifth Amendment of the U.S. Constitution. When a person "takes the Fifth," she exercises that option and refuses to respond to inquiries or divulge anything that may be used against her. Only specific circumstances allow for the Fifth Amendment to be used. A person may...
More Description What Exactly Does "Taking the Fifth" Mean?
A person's "right to stay silent"--the so-called "right to remain silent"--cannot be violated by the government, according to the Fifth Amendment of the U.S. Constitution. When a person "takes the Fifth," she exercises that option and refuses to respond to inquiries or divulge anything that may be used against her.
Only specific circumstances allow for the Fifth Amendment to be used.
A person may only make use of the Fifth Amendment in response to forced communication, such as that which results from a subpoena or other legal procedure.
Additionally, the message must be of a testimonial type. It must thus be related to explicit or implicit declarations of truth or belief. For Fifth Amendment reasons, a nod would be seen as a testimonial statement. The same would apply if someone produced papers or any other kind of evidence; doing so conveys an inferred claim that they were in possession of the evidence.
The testimony must also be self-incriminating in order to construct a piece of the puzzle that would allow for the prosecution of the witness in a criminal case. Therefore, it suffices that the knowledge would result in the finding of damning evidence rather than that the information itself be incriminating.
An individual who has been granted immunity cannot use the Fifth Amendment as a justification for refusing to respond to questions because the communication must be self-incriminating; any statements would not be incriminating because the immunity bars the government from using those statements (or any evidence derived from them) in a criminal prosecution against the individual. Similarly, a person who has been pardoned could not have any justification for using the Fifth Amendment. The Fifth Amendment cannot be used by someone who has already been punished for a crime and found guilty of it.
When someone exercises their right to the Fifth Amendment, her silence or reluctance to respond to inquiries cannot be used against her in court. A prosecutor is not allowed to tell the jury that the defendant is guilty simply by remaining silent. Additionally, if the prosecution is aware that a witness will raise the Fifth Amendment, the person usually cannot even be called to testify before the grand jury.
However, using the Fifth might still have negative effects. When the defendant claims the Fifth Amendment in a civil proceeding or a civil enforcement action, the judge or jury may draw an unfavorable inference to establish responsibility. And as a consequence, an employee who raises the Fifth Amendment in answer to inquiries from federal authorities looking into business misconduct may lose their job.