Television and movies teach us that only guilty people “take the fifth.” The Fifth Amendment right itself is often referred to as the right (or privilege) against self-incrimination. In fact, the most commonly formulated version of the Fifth Amendment invocation—“I refuse to answer on the grounds that it may incriminate me”—essentially assumes the speaker’s guilt. After all, if the witness weren’t guilty, his or her answer could not possibly be incriminating, and there would be no need—or legal basis—to “take five.” Based on a version of that logic, in civil cases, a jury is allowed to draw an adverse inference when a person asserts his or her rights under the Fifth Amendment. In substance, this rule entitles a civil jury to conclude that when a witness refuses to answer a question on Fifth Amendment grounds, the answer would have been terrible.
But the Fifth Amendment is for innocent people, too. In fact, the ability of an entirely innocent person to plead the Fifth Amendment and refuse to answer questions even under compulsory process such as subpoena or court order is a large part of why we have the right in the first place.
