What is The Fifth Amendment?

If you have watched mob documentaries or Senate hearing footage, you have almost certainly heard some version of this phrase spoken by a man in an expensive suit into a microphone:

“I respectfully decline to answer because I honestly believe my answer might tend to incriminate me.”

This is the formal invocation of the Fifth Amendment — the constitutional right against self-incrimination that gave the American Mafia its most reliable legal shield throughout the hearings and investigations of the 1950s and 1960s.

What the Fifth Amendment Actually Says

The Fifth Amendment to the United States Constitution was ratified in 1791 as part of the Bill of Rights. Its protection against self-incrimination states that no person “shall be compelled in any criminal case to be a witness against himself.”

In practice this means: a witness appearing before a court, grand jury, or congressional committee can be required to identify themselves and confirm basic biographical facts. But they cannot be legally compelled to answer any question whose answer might be used to incriminate them in a criminal proceeding. If they invoke the Fifth, they cannot be found in contempt for refusing to answer, and their silence cannot be used as evidence of guilt.

How the Mafia Used It

For Mafia figures called before the Kefauver Committee in 1950-51 and the McClellan Committee in the late 1950s, the Fifth Amendment was the answer to almost every substantive question. Senators would ask about criminal operations, specific murders, bribes, and associations. The witness would respond with the same formula regardless of the question.

Tony Accardo, the Chicago Outfit‘s boss, invoked the Fifth Amendment over 170 times in a single hearing. Vito Genovese, Joey Gallo, and dozens of other senior figures did the same. The result was politically embarrassing — the hearings made national television and the sight of powerful men refusing to answer questions about their alleged crimes enraged the public — but legally it was entirely sound.

Why It Mattered So Much

The Fifth Amendment’s importance to the Mafia went beyond simply avoiding specific criminal charges. It protected the entire network. A witness who answered one question about one crime might be compelled to answer questions about other crimes, other people, and other operations. The Fifth allowed complete silence on all of it — an impenetrable legal wall around the organisation’s activities.

The development of RICO in 1970 and the subsequent wave of prosecutions changed the calculus significantly. When the alternative to cooperation was a guaranteed life sentence under RICO, many members concluded that the Fifth Amendment was insufficient protection — and began talking. But through the 1950s and 1960s it was the Mafia’s most reliable legal defence.

Frequently Asked Questions

What is the Fifth Amendment?

The Fifth Amendment protects individuals from being compelled to testify against themselves. A witness can refuse to answer any question whose answer might incriminate them, without being penalised for that refusal.

How did the Mafia use the Fifth Amendment?

By invoking it in response to virtually every substantive question at Senate hearings and grand jury appearances. Tony Accardo invoked it over 170 times at the 1951 Kefauver hearings.

What does taking the Fifth mean?

Invoking the constitutional right against self-incrimination — refusing to answer a question on the grounds that the answer might be used against you criminally. A witness who takes the Fifth cannot be compelled to answer and cannot be penalised for the refusal.