U.S. Constitution: Fifth Amendment

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

Understanding the Fifth Amendment

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 apply only to federal government actions. However, the Fourteenth Amendment extended it to the states. Therefore, the Fifth Amendment privileges apply to state and federal government actions.

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 court. 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 this right in more detail.

Double Jeopardy

The double jeopardy clause states that no person shall “be subject for the same offense 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.

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 to infringe 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 it also affords the individual due process of law. The government can put someone in jail for the rest of their life, but it can only do so if it follows criminal procedure and affords 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:

• Fifth Amendment Due Process

• Procedural Due Process Under the Fifth Amendment

• Sexual Privacy as a Part of Due Process

• Abortion Rights as a Part of Due Process

• Medical Privacy Under Due Process

• Due Process and Personal Jurisdiction

• Due Process for Criminal Defendants

• Fifth Amendment Due Process: Burden of Proof and Evidentiary Issues

• Due Process and Taxation

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

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:

• The differences between criminal and civil cases

• General information about the protections the Bill of Rights provides to those involved with criminal law

• Appellate procedure in state court

• Whether a police interrogation violated your constitutional rights

• How the exclusionary rule can lead to an acquittal

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