Pleading The “Fifth”: Where It Came From and Why Plead It

Your phone rings. There’s no caller ID, so you let it ring out. They leave a voicemail; it’s Detective Jones. He says he has a few questions for you about last Friday night.

Your mind is racing; you need to find out what’s going on, so you call him back. He asks you to come down to the station to clear a few things up. “It’s no big deal,” he says; he just needs to ask you a few questions to finish his report.

Only guilty people say no, right? And, if you say no, it will only give him more reason to think you did something wrong? So why not just get ahead of whatever it is? You’re confident you didn’t do anything wrong, so you agree.

You get to the station, check in at the front desk, then take a seat in the lobby. A few minutes later, a guy about your age comes out to meet you and introduces himself as Detective Jones. He seems like a good guy. He takes you back to a room, thanks you for coming in, and reassures you that he only has a few questions for you.

After a few minutes of small talk, he asks you about last Friday night. You start talking. He then interrupts: “Did you sleep with a lady named Jane Doe that night?”


That answer just put you in the same room with her. It put you in the same bed with her; and, most significantly, engaging in a sexual act with her.

Nine months later you’re on trial. Jane Doe alleged she was too drunk to consent. You’re adamant that wasn’t the case, but it doesn’t matter. You’re still on trial; boxed in by what you said to Detective Jones. You’re drowning in debt with legal fees. Your good reputation is no longer. And at the end of it, there is a real possibility you could find yourself in prison and forever required to register as a sex offender for something you’re convinced you didn’t do.

Where Pleading The “Fifth” Came From

The right against self-incrimination is rooted in English history. In the 17th century, English courts required those accused of heresy to take the “oath ex officio” (i.e. to swear before God to truthfully answer all questions asked of them). In doing so, it left the accused facing a “cruel trilemma”:

Option 1: Refuse to take the oath, which constituted contempt and subjected the accused to torture;

Option 2: Take the oath and tell the truth about their religious beliefs, which, if heretical, was punishable by death; or

Option 3: Take the oath and lie, which was also punishable by death.

In 1638, a man named John Lilburne challenged it. When brought to court for printing and circulating unlicensed books, he refused to take the oath defying the court. While he paid for it with lashes, his refusal ultimately led to the end of the “oath ex officio,” setting the groundwork for the right against self-incrimination.

Fast forward to Post-Revolutionary America: at least six states drafted constitutions containing prohibitions against compulsory self-incrimination. The Bill of Rights soon followed and, in them, included the Fifth Amendment (emphasis added):

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

In 1966, the United States Supreme Court put the Fifth Amendment’s right against self-incrimination center stage with their decision in Miranda v. Arizona. The Court held that statements made by a defendant in response to questions asked of them in custody were admissible at trial only if the defendant was both informed of their Fifth Amendment rights and voluntarily waived them. Hence, implementation of the Miranda Warning:  

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Why Plead The “Fifth”

Despite this protection, people continue to consistently waive their rights and speak. Why? Maybe because they naively believe their “innocence” will set them free or that they will look guilty if they don’t, giving the police cause to arrest them. There are many ill-informed reasons to do so. Regardless, the consequences for waiving your rights—at worst—can be life ending. If not convinced, ask yourself why the Innocence Project continues to exonerate people on death row who “confessed.”

“Nobody of sound mind can dispute that there is something fundamentally wrong, and intrinsically corrupt, about a legal system that encourages police officers and prosecutors to do everything in their power to persuade you and your children (no matter how young or old) to ‘do the right thing’ and talk—when they tell their own children the exact opposite.” Duane, James J. You Have the Right to Remain Innocent. Little A, 2016.

Not only is it rarely in your best interest to talk, it’s also not healthy for our justice system to rely on people doing so. Said best by Supreme Court Justice Arthur Goldberg: “A system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.”

The Fifth Amendment is important. It guarantees the right to a grand jury; forbids double jeopardy; requires due process of law in any proceeding that denies a citizen life, liberty, or property; requires the government to compensate citizens when it takes private property for public use; and, most notably, establishes the right against self-incrimination. It’s not a technicality or a loophole for the guilty—it’s an indispensable constitutional right our founding fathers established for good reason.

When you are accused of a crime in this country, the cards are stacked against you—it’s you versus the Government and its practically infinite resources. The Government doesn’t need your help.

Hold the Government to its burden of proof. Don’t return Detective Jones’s call. Plead the “Fifth.”

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