How to Take the Fifth

Take the Fifth

You hear it all the time--in the news, on television and movies, you even use it in jest while hanging out with family and friends. "I take the fifth!" But what does it actually mean to take the fifth? Who can do it, and why? And what protection does it actually offer you?

Michaele and Tareq Salahi--the infamous White House gatecrashers who left President Obama infuriated and millions of viewers in shock--are about to find out. The party-crashing husband-and-wife team announced they would be invoking their rights to take the fifth and refuse to testify to in response the Homeland Security Committee's decision to subpoena them. And now the entire world is wondering: can they really do that?

The short answer is, surprisingly, yes. A well-known loophole allows a witness to decline to testify against someone else if that testimony will incriminate her, even if she participated in the crime, as well. The protection doubles when the witness is married to the accused, because a wife cannot be forced to testify against her husband (and he against her) if she chooses to keep quiet. If the Salahis make good on their threat, prosecutors may have a tough time proving the couple's guilt--assuming, of course, the Salahis didn't do anything stupid, like pose for a picture with the President while being videotaped for a national broadcast.

Of course, when your crime just happens to be witnessed by millions of Americans on national television, your right to avoid self-incrimination isn't likely to do you much good. For those of us who prefer to commit our criminal acts in private, taking the fifth might actually do some good:

First, you must understand what it means to "take the fifth." This is a common phrase used by witnesses, which allows them to invoke their Fifth Amendment rights. Under the Fifth Amendment of U.S. Constitution, a witness has the right to remain silent on the stand if testifying would cause him to incriminate himself. Think of it as the courtroom equivalent of your right to remain silent while being arrested: if answering the question would implement you in a crime, you can refuse to answer.

For married couples, an additional protection allows spouses to avoid testifying against each other. Called "spousal privilege," this protection draws on the concept of marital confidence; that is, when spouses share intimate information with each other, it is done with the confidence that the other spouse will never reveal the information to anyone else. Courts cannot take advantage of marital confidence, and cannot force a spouse to testify against her partner, even if she her partner revealed details about the crime to her, she witnessed him commit the crime, even if she participated in the crime herself.

With all of this in mind, you, too, can take the fifth and invoke your right to spousal privilege, and avoid testifying against your spouse. Just take care that your crime wasn't televised and watched by an entire nation, first.

Preparing For Court

Obtain a copy of the subpoena that you were served requiring you to testify at the preliminary hearing, if you haven't already. If you have lost your original subpoena, you can contact the clerk of the court where the criminal matter is being handled and request a new copy by providing the docket number or the name of the individual who is being charged. If you have legal representation, provide your attorney with a copy of the subpoena immediately.

Prepare to attend the preliminary hearing. This is the first chance you will have to take the fifth, so you'll definitely want to be present. Dress accordingly: business professional, which means a knee-length skirt, conservative dress or full-length slacks, button-down shirt, conservative blouse or sweater, and a suit jacket for women; slacks, a button-down shirt or polo, suit jacket or three-piece suit, and tie for men. No sneakers, jeans, t-shirts, tracksuits, dresses, revealing clothing, "club wear," ripped or stained clothing, or anything you wouldn't wear to Sunday mass for either gender. Remember, the courtroom is not the place to be setting fashion trends. The goal is to look as professional as possible and blend in with the rest of the crowd.

Arrive at court on the day the hearing is scheduled at least 20 minutes early. Bring along your copy of the subpoena, your photo identification (like your driver's license) and any other documents related to the case that you previously received. Enter the room where the hearing is schedule; you can ask a security guard or clerk for assistance. Find a seat in the gallery and wait quietly. When the bailiff calls the case name and docket for which you were called to testify, approach.

Pleading the Fifth

When you are called to the stand to testify, you will hear the prosecutor say something akin to, "the prosecution calls (your name) to the witness stand." Approach the witness stand, which is the box located next to the judge's bench at the head of the courtroom. The bailiff will then ask you if you "swear to tell the truth, the whole truth, and nothing but the truth, under penalty of perjury, so help you God?" Respond with "I do" or "yes," then sit down.

Immediately after sitting, turn to the judge and say, "Your honor, I respectfully invoke my rights under the Fifth Amendment of the U.S. Constitution on the grounds that answering questions may incriminate me." The judge may direct you to provide your full name, to which you should comply. Answering any other questions will effectively waive your right to take the fifth, and you will then need to answer any additional questions asked of you while on the stand.

Wait until you are excused from the witness stand, then step down and return to the gallery. If you have no other business in court to attend to, you may leave as soon as you are excused.


  • You can only take the fifth to avoid answering incriminating questions in matters where you are a witness. If you are charged with a crime and you choose to take the stand to testify in your own defense, you cannot take the fifth to avoid questioning by the prosecution. You can, however choose not to testify at all, and effectively avoid all questioning on the witness stand.

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