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How “Pleading the 5th” Works in Florida


You’ve no doubt heard the phrase “plead the 5th,” but do you may not know the full history behind it and its application to your civil rights. Generally, you may make this claim when you need to exercise your Fifth Amendment right against self-incrimination. The language in the US Constitution, and the parallel provision in Florida’s Constitution, is a guarantee that you cannot be forced to act as a witness against yourself in a criminal case. Unfortunately, police may still try to obtain incriminating statements from you in violation of this prohibition – and they know it’s easy to get you to do when you don’t have legal counsel.

As such, it’s essential to retain a Florida criminal defense attorney in connection with any criminal charges. You might also find it informative to read an overview of how pleading the 5th works.

Pleading the Fifth as a Defendant: Once you’ve been arrested, you have the right to exercise your Fifth Amendment rights in connection with both state and federal court. This means you don’t have to take the stand at trial, but your civil liberties also apply when you’re being questioned by police. If you’re thinking that NOT testifying may create the appearance of guilt, the US Supreme Court has taken up this issue. In a 1965 case, the Justices ruled that a jury cannot infer guilt simply because the defendant invoked the 5th and refused to testify.

Your Fifth Amendment Rights as a Witness: Even when you’re not the defendant in a criminal case, you can still invoke this constitutional guarantee. You can refuse to answer a question posed by a prosecutor or defense attorney if you fear that your statements will incriminate you. There are a few important factors to note in this type of situation:

  • The criminal activity you don’t want to testify on does NOT have to be related to the case in which you’re a witness;
  • If you do plead the 5th, you may still offer testimony regarding matters that are not self-incriminating; and,
  • A prosecuting attorney may offer you immunity in exchange for your testimony, even when it does incriminate you. With this agreement, you cannot be later charged for admitting to criminal activity.

Pleading the Fifth is NOT a Guaranteed Protection: The Fifth Amendment doesn’t protect you when the evidence is considered non-communicative. In other words, if there are facts that don’t require your statements, they can still be used in court against you. Examples include DNA, your fingerprints, and the results of breathalyzer and other chemical tests.

A Florida Criminal Defense Lawyer Can Advise You on Your 5th Amendment Rights

As you can see, the best way to protect your right against self-incrimination is to have experienced legal counsel at your side from the earliest stages of a criminal case. To learn how our team can help, please contact the office of Fort Lauderdale criminal attorney Kevin J. Kulik. We can set up a free consultation to review your situation and provide additional information.


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