Self-incrimination
The Fifth Amendment protects
witnesses from being forced to incriminate themselves. To "plead the
Fifth" or to "take the Fifth" is to refuse to answer a question
because the response could form incriminating evidence.
Civil or criminal proceedings
Fifth Amendment
protections apply wherever and whenever an individual is compelled to testify.
The U.S. Supreme Court has ruled that the privilege against self-incrimination
applies whether the witness is in Federal or state court (see Malloy v. Hogan,
378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see
McCarthy v. Arndstein, 266 U.S. 34 (1924)).
People have asserted the privilege in grand jury or
in congressional hearings in the 1950s, where witnesses testifying before the
House Committee on Un-American Activities and the Senate Internal Security
Subcommittee claimed the privilege in response to questions concerning their
alleged membership in the Communist Party. The amendment has also been used by
defendants and witnesses in criminal cases involving the Mafia. The Supreme
Court has also used the incorporation doctrine to apply the self-incrimination
clause against the states under the Fourteenth Amendment.
Source:
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution
The New Jersey Supreme Court recognized the right
of a witness to "take the 5th" if called as a witness at a trial.
State of New Jersey v. P.Z. (A-21-96) - Decided November 26, 1997
The Supreme Court wrote:
"The Fifth Amendment
privilege against self-incrimination, made applicable to the states through the
Fourteenth Amendment, provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. As
explained in Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493, 12 L. Ed.2d
653, 659 (1964), the Fifth Amendment protects “the right of a person to remain
silent unless he chooses to speak in the unfettered exercise of his own free
will, and to suffer no penalty . . . for such silence.” It reflects our
understanding that government is “constitutionally compelled to establish guilt
by evidence independently and freely secured, and may not by coercion prove a
charge against an accused out of his own mouth.” Ibid.
In New Jersey, the privilege is derived from the
common law and is codified in our statutes and rules. State v. Reed, 133 N.J.
237, 250 (1993); see N.J.S.A. 2A:84-19; N.J.R.E. 503. Its importance is not
diminished by the lack of specific constitutional articulation; rather, from colonial
times, “New Jersey has recognized the right against self-incrimination and has
consistently and vigorously protected that right.” Reed, supra, 133 N.J. at
250.
A person invoking the privilege against self-incrimination may do so
“'in any . . . proceeding, civil or criminal, formal or informal, where the
answers might tend to incriminate him in future criminal proceedings.'”
Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed.2d 409,
418 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322,
38 L. Ed.2d 274, 281 (1973)); Banca v. Town of Phillipsburg, 181 N.J. Super.
109, 114-15 (App. Div. 1981); see New Jersey Div. of Youth & Family Servs.
v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994). However, the privilege is
not self-executing under either federal or state law and must be invoked by
anyone claiming its protection. Murphy, supra, 465 U.S. at 428-29, 104 S. Ct.
at 1142-43, 79 L. Ed. 2d at 419-20; Reed, supra, 133 N.J. at 251. Generally,
when the privilege is not asserted and the person questioned chooses to answer,
the choice to respond is considered voluntary. Murphy, supra, 465 U.S. at 429,
104 S. Ct. at 1143, 79 L. Ed. 2d at 420; State v. Fary, 19 N.J. 431, 435
(1955)."
