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Pleading the Fifth in Illinois: What You Need to Know
Last Reviewed & Updated: September 29, 2026
By: W. Scott Hanken | Former Sangamon County Prosecutor | Springfield Criminal Defense Attorney | Voted “Best Attorney” — Illinois Times Best of Springfield & State Journal-Register Reader’s Choice | Springfield, IL | Sangamon County | (217) 544-4057 | hankenlaw.com
The Fifth Amendment protects every person in Illinois from being compelled to give testimony that could incriminate them, but the privilege is not automatic. You have to affirmatively invoke it, question by question in most settings, and it does not automatically survive a grant of immunity or a presidential pardon. That second point has drawn national attention recently. On July 29, 2026, Dr. Anthony Fauci invoked his Fifth Amendment right against self-incrimination more than one hundred times during a Senate Homeland Security and Governmental Affairs Committee hearing, despite having received a preemptive pardon from President Biden covering his conduct through January 2025. The committee chairman argued the pardon eliminated any basis for the privilege. Fauci countered that the chairman’s repeated public calls for his prosecution meant anything new he said could expose him to fresh charges, and legal experts noted that the pardon could not cover statements he had not yet made.
Bottom Line: The right to remain silent under the Fifth Amendment belongs to you the moment you’re questioned by police, a grand jury, or a congressional committee, but you have to claim it out loud and on the record. Immunity can force you to talk. A pardon usually can too, but not always. And answering some questions on a topic under oath can cost you the right to refuse the rest.
At a Glance:
- You must affirmatively invoke the Fifth Amendment; staying silent without saying why usually isn’t enough on its own.
- Illinois gives prosecutors two immunity tools: full transactional immunity under 725 ILCS 5/106-1 and 106-2, or narrower use and derivative-use immunity under 725 ILCS 5/106-2.5(b), which the court must grant when the statute’s conditions are met.
- A pardon does not always eliminate the privilege; new testimony can create new exposure, and a federal pardon doesn’t touch state prosecution risk.
- Answering part of a subject voluntarily under oath can waive your right to refuse the rest of that same subject.
- Once a valid immunity order is entered, refusing to testify stops being a Fifth Amendment issue and becomes a contempt issue.
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What Is the Fifth Amendment Privilege Against Self-Incrimination?
The Fifth Amendment to the U.S. Constitution says, in relevant part, that no person “shall be compelled in any criminal case to be a witness against himself.” It was ratified in 1791 as part of the Bill of Rights, and it grew out of English common law revulsion toward the old ecclesiastical courts’ practice of forcing suspects to swear an oath and then answer any question the court chose to ask, before they even knew the charge against them. That history is why American courts have always read the privilege broadly: it protects not just a confession, but any answer that could become a link in the chain of evidence used to build a case.
For nearly two centuries, that protection applied only in federal court. The Supreme Court closed that gap in Malloy v. Hogan, 378 U.S. 1 (1964), holding that the Fourteenth Amendment applies the Fifth Amendment’s self-incrimination clause to the states, using the same standard in state court that applies in federal court. Illinois also protects the right independently. Illinois Constitution Article I, Section 10 states that “no person shall be compelled in a criminal case to give evidence against himself.” So in a Sangamon County courtroom, you’re protected twice over: once by the federal Constitution and once by the Illinois Constitution.
How Do You Actually Invoke the Fifth Amendment?
You have to say it. Silence by itself usually isn’t enough, and neither is simply not showing up. In most settings, other than testifying as the defendant at your own trial, you’re expected to appear in response to a subpoena and then invoke the privilege in response to the specific questions that would incriminate you. A blanket refusal to answer anything at all can be challenged, and a judge can order you to answer unless it’s clear from the nature of the proceeding that virtually every question would be incriminating.
The controlling standard comes from Hoffman v. United States, 341 U.S. 479 (1951). The Supreme Court held that the privilege covers not only answers that would directly support a conviction, but also answers that would furnish “a link in the chain of evidence” needed to prosecute you. To sustain the privilege, it only has to be evident from the question and its context that a truthful answer, or an explanation of why you can’t answer, might be dangerous. You don’t have to prove the danger, and you don’t have to explain what crime you’re worried about, because doing so could itself be incriminating. The judge only has to find it plausible.
Statute Callout — U.S. Constitution, Amendment V (Self-Incrimination Clause): “No person shall be…compelled in any criminal case to be a witness against himself.” Ratified December 15, 1791. Source: Constitution Annotated, Amendment V
Statute Callout — Illinois Constitution, Article I, Section 10: “No person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense.” Adopted 1970. Source: Illinois Constitution, Article I, Section 10
The most common mistake in Sangamon County criminal matters isn’t people invoking the Fifth Amendment. It’s people who talk first and call a lawyer second, not realizing that a casual, half-answered conversation with an investigator can do more damage than staying silent ever could.
Federal Protection vs. Illinois Protection: How the Immunity Rules Differ
| Issue | Federal Standard | Illinois Standard |
|---|---|---|
| Source of the right | U.S. Const. amend. V | Illinois Const. Art. I, § 10 |
| Applies in Illinois state court? | Yes, via Malloy v. Hogan, 378 U.S. 1 (1964) | Yes, directly |
| Immunity that overrides the privilege | Use and derivative-use immunity | Either transactional immunity (a full bar to prosecution) or use and derivative-use immunity; the State chooses which to seek |
| Governing authority | Kastigar v. United States, 406 U.S. 441 (1972) | 725 ILCS 5/106-1, 106-2, 106-2.5 |
| Who can grant it | Federal court, on request of the U.S. Attorney with DOJ approval, 18 U.S.C. § 6003 | The court, on the State’s motion |
What If I’ve Already Been Granted Immunity?
At the federal level, the government doesn’t have to promise you’ll never be charged to force your testimony. Under Kastigar v. United States, 406 U.S. 441 (1972), use and derivative-use immunity is enough. The government agrees not to use your compelled testimony, or anything it leads investigators to, against you. It can still prosecute you for the same underlying conduct, but only using evidence it can prove came from an independent source.
Illinois gives prosecutors a choice between two kinds of immunity. The broader one is transactional immunity. Under 725 ILCS 5/106-1, when the State moves for immunity before a grand jury or at trial, the court can order that “any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.” Section 106-2 confirms the effect: that order is “forever a bar to prosecution against the witness for any offense shown in whole or in part by such testimony or other evidence,” except for perjury committed in giving it. That’s transactional immunity: full protection from prosecution for the underlying offense, not just a promise not to use your words.
Illinois also authorizes the narrower, federal-style option. Under 725 ILCS 5/106-2.5(b), in lieu of Section 106-2 immunity, in any grand jury investigation or trial the court, on the State’s motion, shall order use and derivative-use immunity for a witness who has refused, or is likely to refuse, to produce evidence on Fifth Amendment grounds. The compelled evidence, and anything derived from it, can’t be used against the witness in a criminal case, except in a prosecution for perjury, false swearing, or failing to comply with the order. But the order does not bar a prosecution built on independent evidence. A separate subsection, 106-2.5(a), provides a similar use-immunity order for street gang members who testify in civil proceedings under the Illinois Streetgang Terrorism Omnibus Prevention Act. Which form of immunity a witness receives is the State’s choice, and the difference is enormous: transactional immunity ends the witness’s exposure for the offense, while use immunity only limits the evidence that can be used to prove it.
Statute Callout — 725 ILCS 5/106-1, Granting of Immunity: “In any investigation before a Grand Jury, or trial in any court, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.” Source: 725 ILCS 5/Art. 106, Illinois General Assembly
This situation comes up in Sangamon County grand jury proceedings tied to multi-defendant financial and drug cases, where the State’s Attorney’s office seeks an immunity order to compel testimony against a co-defendant. Once that order is entered under Section 106-1 or Section 106-2.5, refusing to testify stops being a Fifth Amendment issue and becomes a contempt issue. The time to get a lawyer involved is before the immunity motion is heard, not after.
Can I Be Held in Contempt After an Illinois Immunity Order?
Yes. Once a valid immunity order is entered, the Fifth Amendment no longer justifies refusing to answer, because the risk of prosecution the privilege exists to prevent has been legally removed. A witness who still refuses to testify can be held in contempt. That exposure is typically civil and coercive rather than punitive: a court can order confinement to compel compliance, with release available once the witness agrees to testify or the underlying proceeding ends, whichever comes first. Depending on the circumstances, continued refusal can also raise separate criminal contempt exposure apart from whatever the underlying investigation was about. This is exactly why a lawyer needs to be involved before the order is entered, rather than after a witness is already sitting in front of the grand jury.
Does a Presidential Pardon Eliminate the Fifth Amendment Privilege in Illinois?
This is the exact question at the center of the Fauci hearing, and it’s a genuinely unsettled area of the law. The traditional rule, going back to Brown v. Walker, 161 U.S. 591 (1896), is that once a pardon removes all criminal jeopardy for an offense, the privilege as to that offense disappears too, because there’s no longer any real danger of prosecution to protect against. Republican senators leading the hearing argued exactly that: a pardon should extinguish the risk, and with it, the right to stay silent.
But two carve-outs matter, and they’re the reason legal experts said Fauci’s invocation could hold up. First, dual sovereignty: a presidential pardon only reaches federal criminal liability, so if a state could still prosecute the same underlying conduct under its own law, the witness can still invoke the Fifth Amendment to avoid the risk of state charges, even after a full federal pardon. That carve-out matters just as much for an Illinois witness weighing whether a past federal resolution really closes the door on state exposure. Second, and more directly on point in the Fauci hearing, a pardon only covers conduct that happened before it was granted. It can’t immunize you against a new crime you commit while testifying, such as perjury or obstruction. Fauci’s pardon covers conduct only through January 19, 2025, so his live testimony in 2026 could still expose him to a new federal perjury or false statements charge that no pardon had touched.
On August 6, 2026, the committee voted along party lines to hold Fauci in contempt and referred the matter to the Justice Department without a vote of the full Senate. Neither side’s position has been tested by a court ruling as of this writing. What it illustrates for Illinois clients is that a pardon, a commutation, or even a completed sentence doesn’t automatically end your exposure. If you’ve served your time or been pardoned for one offense but get called to testify about the same conduct, whether in a Sangamon County courtroom or before a legislative body, the privilege may still be live depending on what other prosecution risk remains on the table.
Been contacted about a matter you thought was closed? Call (217) 544-4057.
What Happens If I Answer Some Questions and Then Want to Stop?
You can lose the privilege by using it too late. In Rogers v. United States, 340 U.S. 367 (1951), a grand jury witness voluntarily testified that she had been treasurer of a local political party organization and had turned its records over to another person, then refused to identify that person. The Supreme Court held that once a witness has voluntarily disclosed incriminating facts, she cannot refuse to supply the details where answering would not create a real danger of further incrimination. Allowing it, the Court said, would let a witness “select any stopping place in the testimony.” Partial testimony on a topic can waive the privilege for the rest of that same topic.
How Can You Accidentally Waive Your Fifth Amendment Rights in Illinois?
None of the following require saying “I waive my rights.” They happen through conduct.
- Staying quiet without saying why. In Salinas v. Texas, 570 U.S. 178 (2013), a suspect answered a series of police questions voluntarily, without being in custody or Mirandized, then simply went silent on one question instead of expressly invoking the Fifth Amendment. A three-Justice plurality of the Supreme Court concluded that his silence could be used against him at trial as evidence of guilt, because the privilege isn’t self-executing; two more Justices agreed with the result on different grounds. The practical lesson: outside of custodial interrogation, claim the privilege by name, because silence alone may not do the job.
- Testifying at your own trial. Taking the stand in your own defense waives the privilege as to any subject opened on direct examination. Brown v. United States, 356 U.S. 148 (1958), holds that the scope of that waiver is defined by the scope of relevant cross-examination, not by what you’d prefer to answer. You cannot answer your own attorney’s friendly questions and then invoke the Fifth Amendment when the prosecutor asks a harder one about the same subject.
- Partial disclosure in sworn testimony. As covered above under Rogers, volunteering part of the story under oath and then trying to stop can close the door on staying silent about the rest of that same subject. Talking to police works differently: you can stop answering at any point, but you should say out loud that you’re invoking your right to remain silent, and anything you already said can be used against you.
- Talking about the same conduct somewhere else first. Statements made in a civil deposition, to a co-defendant’s counsel, or in another proceeding can be used as evidence against you later. Courts generally treat a waiver as limited to the proceeding where it happened, so you can usually still invoke the privilege in a later, separate proceeding, but you can’t take back what you already said.
Where This Comes Up Most in Sangamon County Practice
The Fifth Amendment issue rarely shows up as a headline event in Sangamon County practice. More often, it shows up as a phone call after a grand jury subpoena connected to someone else’s case, a target letter in a financial crimes investigation, or a co-defendant situation where the State’s Attorney’s office is deciding who to flip. The pattern that matters most in Sangamon County Circuit Court practice is how quickly an immunity order changes a witness’s legal position, and how limited the options become once that order is entered. That’s a decision that needs to be made with a lawyer in the room before the motion is granted, not after.
If you’ve been contacted by police or received a subpoena, don’t try to sort out on your own whether your right to remain silent still applies to your situation.
Primary Authorities Cited in This Guide
- U.S. Const. amend. V
- Illinois Const. Art. I, § 10
- Malloy v. Hogan, 378 U.S. 1 (1964)
- Hoffman v. United States, 341 U.S. 479 (1951)
- Kastigar v. United States, 406 U.S. 441 (1972)
- Brown v. Walker, 161 U.S. 591 (1896)
- Rogers v. United States, 340 U.S. 367 (1951)
- Salinas v. Texas, 570 U.S. 178 (2013)
- Brown v. United States, 356 U.S. 148 (1958)
- 725 ILCS 5/106-1, Granting of Immunity
- 725 ILCS 5/106-2, Effect of Immunity
- 725 ILCS 5/106-2.5, Use Immunity
Frequently Asked Questions (FAQs)
Do I have to say “I plead the Fifth” using those exact words?
No, but you have to make clear you’re invoking the constitutional privilege against self-incrimination, not just declining to answer. Courts have rejected vague refusals that don’t identify the privilege being claimed.
Yes. The privilege applies whenever a truthful answer could expose you to criminal prosecution, even if the question is asked in a civil lawsuit, a divorce proceeding, or a licensing hearing. The catch is that in a civil case, the judge or jury is often allowed to draw a negative inference from your silence, which isn’t permitted in a criminal trial.
No, a target letter doesn’t reduce Fifth Amendment protection. If anything, it’s a signal to talk to a criminal defense attorney immediately, before any further contact with investigators, and before deciding whether to appear at all in response to a subpoena.
Yes, but only if the judge finds that the fear of incrimination isn’t reasonably justified, or if valid immunity has been granted. Absent one of those, a proper invocation should be honored.
In a criminal case where the person is the defendant, the law says it shouldn’t. The judge and prosecutor are barred from commenting on the decision not to testify, and if the defense requests it, the jury is instructed not to hold it against the defendant. That protection is specific to criminal defendants at their own trial; it works differently for witnesses in other settings.
That person can be prosecuted for perjury or obstruction, and a pardon or immunity covering earlier conduct won’t protect against it, because those are new offenses committed by the false statement itself.
Transactional immunity, available under 725 ILCS 5/106-1 and 106-2, bars prosecution for the underlying offense entirely. Use immunity, available under 725 ILCS 5/106-2.5, only bars the government from using compelled testimony, or evidence derived from it, against the witness; it doesn’t bar prosecution built on independent evidence. In Illinois, the State decides which form to request. When it moves for use immunity under Section 106-2.5(b) for a witness who has refused or is likely to refuse to testify, the court must grant it.
Yes. Once immunity removes the legal basis for the privilege, refusal to testify is no longer protected and can result in civil contempt, typically coercive confinement until the witness complies or the proceeding ends, and potentially separate criminal contempt exposure.
Does refusing to testify under a valid immunity order still count as pleading the Fifth?
No. Once a court-ordered grant of immunity removes the risk of self-incrimination for the matters covered, the constitutional basis for the privilege is gone. Continued refusal at that point is treated as contempt of court, not as an exercise of the Fifth Amendment.
Further Reading
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About the Author: W. Scott Hanken, Attorney at Law
Scott Hanken is a Springfield, Illinois criminal defense attorney with over 37 years of experience, including service as a former Sangamon County prosecutor. He has been voted Best Attorney by the Illinois Times and State Journal-Register, holds an Avvo 10.0 “Superb” rating, and has earned over 270 five-star Google reviews. He serves clients throughout Sangamon County and Central Illinois.
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This article is for general educational purposes only and does not constitute legal advice. Every case is unique — contact an experienced Springfield criminal defense attorney for guidance on your specific situation.
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