Fifth Amendment: An Overview
The Fifth Amendment of the U.S. Constitution provides, "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 offense 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."
The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Process Clause from the Magna Carta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: 1) right to indictment by the grand jury before any criminal charges for felonious crimes, 2) a prohibition on double jeopardy, 3) a right against forced self-incrimination, 4) a guarantee that all criminal defendants have a fair trial, and 5) a guarantee that government cannot seize private property without making a due compensation at the market value of the property.
While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has partially incorporated the 5th amendment to the states through the Due Process Clause of the Fourteenth Amendment. The right to indictment by the Grand Jury has not been incorporated, while the right against double jeopardy, the right against self-incrimination, and the protection against arbitrary taking of private property without due compensation have all been incorporated to the states.
Grand juries are a holdover from the early British common law dating back to the 12th century. Deeply-rooted in the Anglo-American tradition, the grand jury was originally intended to protect the accused from overly-zealous prosecutions by the English monarchy. In the early phases of the development of the U.S. Constitution, the Founding Fathers have decided to retain the Grand Jury system as a protection against over-zealous prosecution by the central government. Although the Supreme Court in Hurtado v. California in 1884 has refused to incorporate the Grand Jury system to all of the states, most states have independently decided to retain a similar form of Grand Jury, and currently, all but two states (Connecticut and Pennsylvania) have the grand jury.
Congressional statutes outline the means by which a federal grand jury shall be impaneled. Ordinarily, the grand jurors are selected from the pool of prospective jurors who potentially could serve on a given day in any juror capacity. At common law, a grand jury consists of between 12 and 23 members. Because the Grand jury was derived from the common law, courts use the common law as a means of interpreting the Grand Jury Clause. While state legislatures may set the statutory number of grand jurors anywhere within the common law requirement of 12 to 23, statutes setting the number outside of this range violate the Fifth Amendment. Federal law has set the federal grand jury number as falling between 16 and 23.
A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct "fishing expeditions" or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may make a presentment, informing the court of their decision to indict or not indict the suspect. If they indict the suspect, it means they have decided that there is a probable cause to believe that the charged crime has indeed been committed by the suspect.
The Double Jeopardy Clause aims to protect against the harassment of an individual through successive prosecutions of the same alleged act, to ensure the significance of an acquittal, and to prevent the state from putting the defendant through the emotional, psychological, physical, and financial troubles that would accompany multiple trials for the same alleged offense. Courts have interpreted the Double Jeopardy Clause as accomplishing these goals by providing the following three distinct rights: a guarantee that a defendant will not face a second prosecution after an acquittal, a guarantee that a defendant will not face a second prosecution after a conviction, and a guarantee that a defendant will not receive multiple punishments for the same offense. Courts, however, have not interpreted the Double Jeopardy Clause as either prohibiting the state from seeking a review of a sentence or restricting a sentence's length on rehearing after a defendant's successful appeal.
Jeopardy refers to the danger of conviction. Thus, jeopardy does not attach unless a risk of the determination of guilt exists. If some event or circumstance prompts the trial court to declare a mistrial, jeopardy has not attached if the mistrial only results in minimal delay and the government does not receive added opportunity to strengthen its case.
The Fifth Amendment also protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may "plead the Fifth" and not answer if the witness believes answering the question may be self-incriminatory.
In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. 384 U.S. 436 (1966). Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights. Known as Miranda rights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.
However, courts have since then slightly narrowed the Miranda rights, holding that police interrogations or questioning that occur prior to taking the suspect into custody does not fall within the Miranda requirements, and the police are not required to give the Miranda warnings to the suspects prior to taking them into custody, and their silence in some instances can be deemed to be implicit admission of guilt.
If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violating the Fifth Amendment protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of the Miranda rights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement. The Fifth Amendment right does not extend to an individual's voluntarily prepared business papers because the element of compulsion is lacking. Similarly, the right does not extend to potentially incriminating evidence derived from obligatory reports or tax returns.
To be self-incriminating, the compelled answers must pose a “substantial and ‘real,’ and not merely a “trifling or imaginary hazard” of criminal prosecution.
After Congress passed the Crime Control and Safe Streets Act, some felt that the statute by implication overruled the requirements of Miranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt that Miranda represented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. In Dickerson v. United States, the U.S. Supreme Court rejected this argument and held that the Warren Court had directly derived Miranda from the Fifth Amendment.
Due Process Clause
The guarantee of due process for all persons requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive any person of life, liberty, or property. Due process essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding. While the Fifth Amendment only applies to the federal government, the identical text in the Fourteenth Amendment explicitly applies this due process requirement to the states as well.
Courts have come to recognize that two aspects of due process exist: procedural due process and substantive due process. The procedural due process aims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensures that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the 20th century as protecting those substantive rights so fundamental as to be "implicit in the concept of ordered liberty."
Just Compensation Clause
While the federal government has a constitutional right to "take" private property for public use, the Fifth Amendment's Just Compensation Clause requires the government to pay just compensation, interpreted as market value, to the owner of the property, valued at the time of the takings. The U.S. Supreme Court has defined fair market value as the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property's good and bad attributes, would pay. The government does not have to pay a property owners' attorney's fees, unless a statute so provides.
In 2005, in Kelo v. City of New London, the U.S. Supreme Court had rendered a controversial opinion in which they held that a city could constitutionally seize private property for private commercial development, where the redevelopment would economically benefit an area that was “sufficiently distressed to justify a program of economic rejuvenation. 545 U.S. 469 (2005). However, after the Kelo decision, some state legislatures passed statutory amendments to counteract Kelo and expand protection for the condemned. See e.g., Condemnation by Redevelopment Auth. of Fayette Certain Land in Brownsville Borough v. Redevelopment Auth., 152 A.3d 375, 376 (Pa. Commw. Ct. 2016). Nevertheless, Kelo remains a valid law under the federal context, and its broad interpretation of "public use" still holds true under the federal protection for the Fifth Amendment right to just compensation.
Last Edited by Elvin Egemenoglu, February 2020
menu of sources
U.S. Constitution and Federal Statute
- U.S. Constitution:
- CRS Annotated Constitution:
- Fifth Amendment: Rights of Persons and Self-Incrimination
- Sixth Amendment: Right to Trial by Impartial Jury
- Eighth Amendment: Further Guarantees in Criminal Cases
- Fourteenth Amendment: Criminal Procedure
- U.S. Code: 18 U.S.C., Part I - Crimes
Federal Agency Regulations
- Code of Federal Regulations: 28 C.F.R., Chapt. I - Dept. of Justice
Federal Judicial Decisions
- U.S. Supreme Court:
- U.S. Circuit Courts of Appeals: Recent Criminal Law Decisions
Conventions and Treaties
- Dealing with Human Rights (Including in the Criminal Justice Context)
Key Internet Sources
- Federal Agencies:
- House Committee on Oversight and Government Reform, Subcommittee on Domestic Policy
- House Judiciary Committee (includes information from Subcommittee on Crime)
- Senate Judiciary Committee
- Buffalo Criminal Law Center
- Vera Institute of Justice
- United Nations Office on Drugs & Crime
- CopNet - Police Departments Around the Country and World
- National Criminal Justice Reference Service
- Bureau of Justice Statistics
- National Archive of Criminal Justice Data
- Rights of Suspects and Defendants (Nolo)
- ABA Criminal Justice Section
- National Criminal Justice Association
- Centre for Criminology Library, University of Toronto