# Taking the 5th amendment...is there any restriction to it or can you claim it for all questions asked of you in a legal process? **URL:** \ **Category:** Factual Questions\ **Created:** [August 12, 2022, 1:05am UTC](https://boards.straightdope.com/t/taking-the-5th-amendment-is-there-any-restriction-to-it-or-can-you-claim-it-for-all-questions-asked-of-you-in-a-legal-process/969523 "2022-08-12T01:05:30Z")\ **Posts on this page:** 3\ **Page:** 1
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 12, 2022, 1:05am UTC](https://boards.straightdope.com/t/taking-the-5th-amendment-is-there-any-restriction-to-it-or-can-you-claim-it-for-all-questions-asked-of-you-in-a-legal-process/969523/1 "2022-08-12T01:05:30Z")
President Trump recently [took the Fifth Amendment 440 times](https://news.yahoo.com/trump-pleaded-fifth-more-400-052151421.html) in a legal proceeding. That is for context only. I mean for this to be a question for FQ. My question is, is there a downside to taking the fifth or should every person involved in a legal proceeding assert their fifth amendment rights to any and all questions? Can a court second guess the person and force them to answer a question (assuming that person has not been granted immunity)? ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [August 12, 2022, 1:19am UTC](https://boards.straightdope.com/t/taking-the-5th-amendment-is-there-any-restriction-to-it-or-can-you-claim-it-for-all-questions-asked-of-you-in-a-legal-process/969523/2 "2022-08-12T01:19:51Z")
> [@Whack-a-Mole](#): > > is there a downside to taking the fifth If you take the fifth in a civil case in which you are being sued, the other side is entitled to request an “adverse inference” based on your refusal to answer that, had you answered, you’d have answered in an incriminating way (there usually has to be a factual predicate that is established before this is granted) Therefore, taking the fifth as a defendant in a civil case creates a substantial risk of forfeiting the civil case, but is done to avoid the greater risk of being criminally prosecuted. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [August 12, 2022, 1:31am UTC](https://boards.straightdope.com/t/taking-the-5th-amendment-is-there-any-restriction-to-it-or-can-you-claim-it-for-all-questions-asked-of-you-in-a-legal-process/969523/3 "2022-08-12T01:31:23Z")
> [@Whack-a-Mole](#): > > Can a court second guess the person and force them to answer a question (assuming that person has not been granted immunity)? In trying to answer this question, I came across a United States Supreme Court decision, Ohio v Reiner > [@](#): > > We have held that the privilege’s protection extends only to witnesses who have “reasonable cause to apprehend danger from a direct answer.” _Id.,_ at 486. That inquiry is for the court; the witness’ assertion does not by itself establish the risk of incrimination. _Ibid._ A danger of “imaginary and unsubstantial character” will not suffice. _Mason_ v. _United States,_ [244 U.S. 362](https://www.law.cornell.edu/supremecourt/text/244/362), 366 (1917). But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. (In this case, a woman pled the 5th, then was given immunity to testify to the grand jury about injuries to a baby she had babysat, and when granted immunity said that she had nothing to do with it and had no idea how it happened. The Ohio court said that this was an improper invocation of the 5th. The Supremes disagreed) So, the court can review whether the question will in fact incriminate you, and force you to answer non incriminating questions, but they can’t overrule the sincerity of your decision to plead the fifth to incriminating questions. [https://www.law.cornell.edu/supct/html/00-1028.ZPC.html](https://www.law.cornell.edu/supct/html/00-1028.ZPC.html)