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What Do I Need to Know About the 5th Amendment?

Updated on May 8, 2017

Bill of Rights


What is the 5th 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.”

What does all that mean?

What does all that mean?

The 5th Amendment provides for 5 ( ironic right?) constitutional rights which are as follows:

1) The right to a Grand Jury for Capital Crimes

2) No Double Jeopardy

3) Right Against Self-Incrimination

4) Right to a Fair Trial

5) Right to just compensation

Grand Juries

Grand Juries- The 4th Branch of Government

In a 1956 United States Supreme Court case, Costello v. the United States, Justice Black stated " The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders "

The reason our Founding Fathers wrote the concept of a Grand Jury into the Bill of Rights was to ensure the citizens of the land affected by the alleged offense made the determination on whether enough evidence was present to move forward with trial via indictment. As opposed to practices in England where these matters were reliant on agents of the State, the Founders placed that power in the hands of the citizens.

In fact, Justice Antonin Scalia wrote in United States v Williams that the Grand Jury belongs to " no branch of government, serving as a kind of buffer or referee between the Government and the people.". It has been said that the Grand Jury in a sense, acts as the 4th Branch of government.

The purpose of a Grand Jury is to determine if probable cause exists to proceed with a felony prosecution. Grand Juries act without a judge present and is coordinated by a Prosecutor who directs the proceedings. Unlike other legal proceedings ( Bond Revocations, Jackson Deno Hearings ( hearings regarding whether or not statements made by the defendant are admissible), and trials) the Grand Juries work in secret. This process is done to ensure witnesses can speak without fear of reprisal and to protect the accused's reputation should the jury decide not to acquit.

Grand Juries do not require a unanimous consent to indict but does need a super majority to do so (the size of which varies depending on the jurisdiction). Even with an indictment, the prosecutor can choose not to prosecute. Also, if there is no Grand Jury indictment, the prosecutor can take the matter before a judge to argue that probable cause exists to indict. Some District Attorney’s will present a case to a Grand Jury with the intent to gauge how it will play out in court.

Grand Jury Investigations

Investigative Powers

Grand Juries can also be conveyed to investigate a criminal matter. Grand Juries are empowered with the ability to issue subpoenas which can compel the production of documents and witnesses in furtherance of the investigation. In the past, Grand Juries would conduct investigations into matters ranging from public corruption to suspected criminal activity. Today, those issues are still looked at by Grand Juries but not nearly as often. A famous example of such a Grand Jury investigation is the Grand Jury which was convened to look into the scandals of President Clinton’s administration. During the testimony to the Grand Jury, President Clinton lied under oath which lead to his charges of perjury and obstruction of justice.

Not every state uses Grand Juries- The States are not required to employ Grand Juries for indictments ( even though every State has the legal framework to do so, only 22 states make use of them.

No Double Jeopardy

No Double Jeopardy

Double Jeopardy prevents a person from being tried for the same crime, twice. The courts have made rulings in the past which established three distinct parts to the Double Jeopardy Clause: No second trial on an acquittal of a charge, No second trial on a conviction of a charge, and the defendant can not be punished multiple times for the same offense ( Brown v Ohio). This clause does not come into play for mistrials, however ( United States v Perez).

Right against Self- Incrimination

When you hear someone say "I plead the 5th", they are talking about this Constitutional Right. Known primarily from the Supreme Court Case, Miranda v. Arizona, it established a person's right against self-incrimination. Before the Miranda ruling, it was not a right to be informed of your right to an attorney or the right to remain silent. You had that right but it was not something law enforcement had to remind you of.

After the Miranda decision, that changed. The courts ruled that a defendant who was in custody had to be advised their rights to remain silent, rights to an attorney, and the understanding that anything they say may be used against them. They are also advised of the right to counsel, regardless of means to pay for said counsel. All this would only be required when two factors are in play simultaneously: 1) If a reasonable person would believe they were in custody and 2) if they are being interrogated. Interrogation is described as “ the use of words or actions to elicit an incriminating response from an average person".

Right to a Fair Trial

Also known as the right to Due Process. As in most cases with Constitutional Rights, there are different aspects which the Courts follow. In this case, Procedural Due Process and Substantive Due Process.

Procedural Due Process ensures a party their case will be fairly heard that they will receive timely notices ( requests for evidence, court dates, etc., etc.) as well as ensure that the proper court is hearing the case ( i.e. a State Court hearing a Misdemeanor case as opposed to a Superior Court).

Substantive Due Process is the notion of protecting individual rights deemed fundamental from government interference, even rights not clearly laid out in the Constitution.

Right to Just Compensation

The Federal government cannot seize your property for public use without providing you, the owner, "Just Compensation." What that means is if the government wants to take your land, for instance, they must provide you the fair market value of the property. The Supreme Court has ruled fair market value to mean " the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property's good and bad attributes, would pay".

Recommended Reading

What are your thoughts on the 5th Amendment? What changes, if any, need to be made?

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