Under the Fifth Amendment, a defendant is given the right to not testify. This means that the judge, prosecutor, and even the lawyer of the defendant cannot force them to testify on their own behalf in fear that they may self-incriminate without intending to do so.
Any time someone says, “I plead to the Fifth” or “pleading to the Fifth,” they are doing so because it is their right to not answer questions. When in the custody of police or when in court, a person can exercise their Fifth Amendment right to not self-incriminate.
The origin of this right is rather interesting in that it originates from the refusal of the Puritans to cooperate with the English interrogators. The Puritans would often be tortured or coerced into confessing their religious affiliation and they would be considered guilty if they were silent. English law granted the right for citizens to not self-incriminate in the mid-1600s when a revolution created the greater parliamentary power. This right then followed the Puritans to America, where it would be included in the Bill of Rights.
When you are pulled over for DWI or you are charged with any type of criminal offense, you do not have to answer the questions of law enforcement. You can invoke your Fifth Amendment right to stay silent until you have counsel present.
Your Miranda Rights say that you have the “right to remain silent” and that “anything you say or do can be used against you in a court of law.” It also states you have the “right to an attorney.”
When you contact your attorney after invoking your Fifth Amendment right, your attorney will advise you on what you should and should not say. You can have your attorney present during questioning so that you do not self-incriminate yourself. Even if you feel your statement is completely innocent, it can be misconstrued by law enforcement to mean something that it doesn’t and this can be used against you in court.
By invoking your Fifth Amendment right to counsel, you could be making the difference between freedom and conviction.
It is important to note that the Fifth Amendment right to self-incrimination does not extend to blood tests, fingerprinting, or DNA evidence that is being gathered for a criminal case. The Supreme Court has upheld that the privilege only extends to communicative evidence, such as interrogation. DNA and fingerprints, in particular are considered non-communicative or non-testimonial.