Donald Trump and 5th Amendment Protection from Self-Incrimination

the 5th amendment and privilege against self-incrimination

No matter where you live, odds are you have heard about the indictments handed down to Donald Trump. The former president has several ongoing cases, but one in particular—the financial fraud case led by New York Attorney General Letitia James—is at the forefront of the news.

This past month, Trump decided against testifying. As predicted, his supporters agree with this decision. His detractors, on the other hand, believe it proves his guilt.

There is only one issue with that. Refusal to testify in your own trial does nothing to prove innocence or guilt. Nor does it permit a prosecutor or jury to question the defendant’s motives or make note of this silence as proof of guilt. It simply protects the accused from self-incrimination.

 The Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Privilege Against Self-Incrimination

Read this statement again: “nor shall be compelled in any criminal case to be a witness against himself.”

This clause derives from the maxim, “nemo tenetur seipsum accusare,” or “No man is bound to accuse himself.” In other words, a defendant is not obligated to help the prosecution (or the court, state, or federal government) prove its case against him. Under certain contexts, individuals can manipulate and construe words to have a different meaning. The founders included this clause to protect the accused from words being used against them.

Because Trump adamantly believes the trial is nothing but a witch hunt, his refusal most likely means he felt he might somehow be entrapped by the state into saying something that could be misrepresented as guilt.

Self-Incrimination and Pleading the Fifth

Your fifth amendment protection from self-incrimination is often referred to as pleading the fifth. Television shows and films have use this term frequently. However, unlike a lot of those fictionalized trials, any defendant who takes the stand during a criminal trial in real life waives their right to invoke the fifth amendment.

This is another reason why Trump refused to testify. The only way to invoke his fifth amendment right and “plead the fifth” was not taking the stand. Otherwise, he would have opened the door to an interrogation the court could use against him.

Exceptions from The Fifth Amendment

The Supreme Court has debated multiple levels of the fifh amendment over the last hundred years. Because of this, they have excluded several incidents from its definition.

Self-incrimination is a personal matter. No business or corporation can plead the fifth.

Evidence considered non-testimonial, such as getting fingerprinted, providing a handwriting test, or having DNA swabbed or drawn, is not protected under the fifth amendment.

The fifth amendment does not negate voluntary statements made by the accused or a witness, either before or after being charged.


Whether you like the former president or not, Trump has a constitutional right to refuse to testify against himself. As do you. If you have been criminally charged for any reason, contact King Law Firm Attorneys at Law, Inc. for help in protecting your right during trial.

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