Taking the Fifth Amendment In No Way Implies Guilt

James McManis, Gregory Ward

Always a champion of the First Amendment to the U.S. Constitution, the news media unfortunately often give little weight to another important right: the right against self-incrimination.  Recent reporting on a criminal investigation conducted by a Santa Clara County grand jury insinuated that a public official who asserted the Fifth Amendment when called before the grand jury must be guilty of the crime under investigation.  This presumption of guilt shows a profound misunderstanding of the nature of the constitutional privilege.

There is nothing inconsistent between asserting rights under the Fifth Amendment in a judicial proceeding and publicly declaring one's innocence. As the U.S. Supreme Court has repeatedly stated, "one of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances."  In a criminal case, the burden remains exclusively on the prosecution to prove a defendant's guilt, and every citizen enjoys the right to refuse to provide any information that may assist the prosecution in its efforts.

Justice Felix Frankfurter described the Fifth Amendment as "one of the greatest landmarks in man's struggle to make himself civilized."  Although the privilege against self-incrimination is sometimes considered to be a shelter to the guilty, it is also highly regarded as a protection to the innocent.  Both the guilty and innocent may avail themselves of the privilege, and a witness who declares innocence in an informal public setting does not "lie" by refusing to answer questions when forced to appear before an accusatorial body.

Unlike a trial jury, which hears cases in open court, a grand jury conducts its activities in secret, with only a prosecutor admitted to assist in its investigations.  It is the prosecutor who conducts the examination of witnesses, who are not allowed to have an attorney present to object to ambiguous questions, seek clarification or ask questions designed to show innocence, rather than guilt.  Only the prosecutor has the right to make a closing argument.  As a general rule, the only prudent course for a witness who may be the subject of a grand jury investigation is to refuse to testify.

In the words of Justice Frankfurter, the view that people who invoke their rights under the Fifth Amendment are guilty of a crime, "does scant honor to the patriots who sponsored the Bill of Rights."  It is the law that no inference whatsoever may be drawn from a witness' reliance on the Fifth Amendment.  The invocation of one's rights says nothing about guilt, and the conclusion that a witness who exercises his or her right not to testify is guilty is unfounded and unworthy of those who honor the Constitution.


James McManis is an attorney with McManis Faulkner.  His practice focuses on both businesses and individuals in commercial and employment disputes, civil rights actions, family law matters and the defense of criminal prosecutions. 

The Hon. Gregory Ward is Of Counsel to McManis Faulkner.  His knowledge and experience – both as a civil and criminal trial lawyer and a Superior Court Judge (Retired) –enable him to represent clients effectively in many areas of the law.  

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About the author James McManis

A member of the trial bar for 50 years, Jim has unparalleled experience and skill in preparing and presenting cases for adjudication – whether by jury, judge, arbitrator, mediator or the parties themselves.

About the author Gregory Ward

Greg’s breadth of experience – both as a civil and criminal trial lawyer and a Superior Court Judge – allows him to represent clients in virtually every area of the law.