U.S. Constitution: Fifth Amendment

The right against self-incrimination applies whether you are in police custody or testifying in court. If someone states, “I plead the fifth," questioning must stop. The government cannot use someone's decision to plead the fifth against them in court.

The Fifth Amendment to the United States Constitution focuses on the rights of the accused, the due process of law, and related matters. It's important in criminal cases since it includes the right against self-incrimination and the protection against double jeopardy. It also prevents the government from taking your property without providing just compensation.

This article summarizes the Fifth Amendment's rights. It also includes links to annotations that provide more in-depth information about these rights.

The Fifth Amendment's Text

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.

Rights of the Accused

The Fifth Amendment to the U.S. Constitution addresses the rights of persons, mainly in the context of the criminal justice system. It provides certain safeguards for suspects and criminal defendants.

For instance, when police read you your rights -- the right to remain silent, to have an attorney, etc. -- it is based on the Fifth Amendment as interpreted through the U.S. Supreme Court's ruling in Miranda v. Arizona (1966).

The Fifth Amendment used to only apply to federal government action. However, the Fourteenth Amendment applied it to the states. Therefore, the Fifth Amendment privileges apply to state and federal government actions.

Double Jeopardy

The double jeopardy clause states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb...". The protection against double jeopardy has a rich history in the common law. It prevents the government from endlessly prosecuting a criminal defendant for the same crime. The protection generally applies regardless of the severity of the criminal charges.

The constitutional right against double jeopardy exists for several reasons:

  • It preserves the finality of a criminal prosecution and proceeding.
  • It limits the government's ability to bring endless criminal trials against defendants.
  • It protects criminal defendants from the stress and financial repercussions of multiple prosecutions.

The protection against double jeopardy has limits and exceptions. For example, if a defendant is never in danger of life and limb, the protection does not apply to them. Jeopardy typically attaches at the following times:

  • In a jury trial, when the court swears in the jurors
  • In a bench trial, when the court swears in the first witness

Suppose a court dismisses an indictment before the trial begins. In that case, double jeopardy did not attach to the defendant. Therefore, prosecutors may try the same defendant for the same offense later.

If the court declares a mistrial, the government can prosecute the defendant in a new trial. The court may declare a mistrial if, for example, the jury cannot reach a verdict. Jeopardy always ends if a jury or judge acquits a defendant.

The Double Jeopardy Under the Fifth Amendment annotation describes the protection in more detail. You can also learn more about the protection's scope and when it does and does not apply.

Privilege Against Self-Incrimination

Miranda rights, also known as the Miranda warning, appear in many TV shows and crime dramas. The warning gets its name from the Supreme Court case Miranda v. Arizona. In that case, the Court held that evidence obtained in violation of the defendant's Fifth and Sixth Amendment rights is inadmissible at trial.

Although law enforcement does not need to read the rights verbatim, the rights generally are as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You are entitled to an attorney. If you cannot afford an attorney, one will be appointed to you."

The rights apprise a suspect of their Fifth Amendment right against self-incrimination and their right to a defense attorney. Law enforcement must read these rights to suspects before they begin a custodial interrogation.

If police officers fail to read the rights before police questioning begins, the court may exclude any statements the defendant makes. If law enforcement reads the rights and the defendant subsequently makes incriminating statements, the prosecution can likely use such statements in the criminal case. In such instances, the defendant's conduct is considered a waiver of their rights.

The Fifth Amendment Protection Against Self-Incrimination annotation summarizes the right in more detail.

Due Process of Law and Eminent Domain

The Fifth Amendment protects people from the government's deprivation of their life, liberty, and property without the due process of law. The Due Process Clause applies to all government takings, whether it relates to infringing on one's life and liberty in a criminal prosecution or taking their property through eminent domain.

The government may deprive someone of life, liberty, or property, if they also afford the individual the due process of law. The government can put someone in jail for the rest of their life, but it can only do so if they follow criminal procedure and afford the individual a fair trial. The Due Process Clause is one of several constitutional guarantees that ensure defendants receive a fair trial.

The government may also take someone's property to convert it to public use. However, it cannot do so unless it provides fair compensation for the property. For example, the government decides to create a new highway to increase interstate commerce, but the proposed highway runs through a farmer's field. The government has the right to acquire the property for its plans, but they have a constitutional duty to compensate the farmer for the acquisition.

This process is known as eminent domain, which comes from the Fifth Amendment's Takings Clause. For more information, consider reading The Fifth Amendment's Takings Clause annotation.

There are generally two types of due process: substantive due process and procedural due process. The Substantive Due Process Under the Fifth Amendment annotation describes both types of due process. The following annotations provide more specific information about the Due Process Clause:

The Due Process Clause balances the government's ability to enforce the law and private citizens' rights to life, liberty, and property. Consider contacting a criminal defense attorney near you for more information about due process.

Other Fifth Amendment Rights

The following annotations provide more information about other rights the Fifth Amendment guarantees.

Indictment By Grand Jury

The Fifth Amendment guarantees a grand jury must charge a defendant with a felony in federal court when appropriate. A grand jury comprises a panel of citizens who consider the evidence and determine whether to indict a defendant. The Fifth Amendment Indictment By Grand Jury annotation describes the grand jury process, including its history and rationale. It also summarizes military exceptions to the grand jury requirement.

Regulatory Takings

Similar to eminent domain, the government also sometimes commits regulatory takings. A regulatory taking occurs when the government restricts a property owner's use of their property so significantly that it rises to the level of a taking. In these instances, the government must compensate the owner fairly for the taking. For more information, consider browsing the Regulatory Takings annotation.

Protect Your Fifth Amendment Rights With Help From an Attorney

The Fifth Amendment contains some of the most robust legal protections for those accused of crimes. A qualified criminal defense attorney can provide more specific information about these rights. For example, an attorney can provide you with information regarding the following:

If the government has charged you with a crime, consider contacting a criminal defense attorney near you.

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