Fifth Amendment

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The Fifth Amendment to the United States Constitution reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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

Parsing the Fifth Amendment[edit]

  • Grand Jury (for capital crimes, consisting of 16-23 members)
  • No Double Jeopardy (being tried twice for the same crime)
  • Right to Silence (freedom from self-incrimination)
  • Due Process (no arbitrary punishment without a fair trial)
  • Just compensation (for land seized by the government for eminent domain purposes)


While pleading the Fifth in criminal cases can be advantageous to avoid self-incrimination, it is much less likely to be advantageous in civil cases because the judge may allow the jury to draw an inferences of guilt in civil cases.[1] It is for this reason that pleading the Fifth "in a civil case in federal court is never helpful, is rarely harmless, and is typically very damaging — indeed, it’s often fatal to the party’s claims or defenses."[2] Some states have more stringent standards than federal courts that do not allow drawing negative inference in civil cases either.[2] But even in criminal cases, pleading the Fifth can be disadvantageous because the witness cannot subsequently provide testimony on the the same subject in support of their case.[1]


  1. 1.0 1.1 What happens if you take the Fifth in a civil case? by Eugene Volokh (August 28, 2015 at 9:07 a.m. EDT) The Washington Post.
  2. 2.0 2.1 Pleading The Fifth Amendment And Adverse Inferences In Civil Litigation by Max Kennerly (June 12, 20190 Litigation & Trial.