By Jedidiah McKeehan

During your life you may have been participating in a healthy eating diet with your spouse and you snuck out and had ice cream without telling them.  And then, when they ask you about the ice cream stain on your shirt you blurt out, “I plead the Fifth!”  You have no idea why you just said that, but it sounded good and you heard someone else say it somewhere in a similar situation.  But what does it actually mean when someone, “pleads the Fifth.”

First, the Fifth is a reference to the Fifth Amendment of the Constitution, which states, “No person…shall be compelled in any criminal case to be a witness against himself.”  This means that the defendant in a criminal case cannot be forced to testify in a criminal case if they do not wish to do so.

The ability to use the Fifth Amendment to avoid testifying is a very limited protection.  It does not apply during the police investigation of a matter or in a civil case.  During the investigation portion, the defendant is entitled to their Miranda rights, which means they, “have the right to remain silent.”  That right is very similar to a defendant’s Fifth amendment rights, but is technically different.

For example, in a domestic assault (criminal) case, the defendant cannot be made to testify unless they choose to do so, but if there is an order of protection (civil) case against the defendant regarding the same set of facts, then the defendant can be made to testify about what occurred.  There are nuances to how this occurs, but that is generally how it works.

So why is this right so important that this is one of the first laws ever made for our entire country?  I do not know for certain, but I can make some guesses.

Witnesses testify after swearing they will tell the truth.  If witnesses always told the truth (spoiler alert: many do not), and the prosecution could call the defendant as a witness and ask them, “did you kill, Mr. XYZ?” and the witness told the truth, then prosecuting cases would be the easiest thing ever.

Instead, the prosecution must obtain convictions of defendants through the testimony of other witnesses to the crime.  They cannot simply call the defendant to the stand in the case against them and interrogate them about whether they committed the crime with which they are charged.

The two important takeaways are: you cannot be made to testify in a criminal case in which you are the defendant, and you are probably going to get in trouble for that ice cream stain on your shirt.

Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties.  He works in many areas, including personal injury, divorce and custody, criminal and landlord-tenant law. Visit for more information about this legal issue and other legal issues.