5th Amendment

What Is 5th Amendment Law?

The principles contained in the 5th Amendment are vital to a person accused of a crime. Although the amendment contains several provisions, four elements protect a person accused of a crime: the right against compelled self-incrimination, the right to a grand jury, the right of protection against double jeopardy and the right to due process.

What Is Self-Incrimination?

No person accused of a crime may be compelled to be a witness against himself or herself. The Supreme Court has ruled that this applies not only to the trial but also police interrogations. Thus, a person in police custody may refuse to answer any questions relating to the crime that he or she is suspected of committing.

An extensive line of Supreme Court cases addresses what “custody” and “interrogation” mean:

• “Custody” usually means the suspect has been arrested, although there are instances when the Supreme Court has found a suspect to be in police custody even though the person was not arrested or even handcuffed. Courts apply an objective standard, asking whether an average person under the circumstances would feel free to leave. If the answer is no, then the suspect was “in custody.”
• “Interrogation” means any statement by the police that is likely to elicit an incriminating statement.

When suspects are given Miranda warnings, they can either waive their rights by answering questions or invoke their rights under the 5th amendment. Suspects may invoke their right to remain silent in one of two ways:

• by physically remaining silent and refusing to answer questions, or
• by requesting an attorney.

If a suspect invokes their rights, the police must immediately stop all questioning.

At the trial level, the right against compelled self-incrimination means that defendants may not be forced to testify. They can, however, testify if they desire. Witnesses, either at the trial level or in grand jury proceedings, also may refuse to speak for fear that they might incriminate themselves. This is known as “pleading the Fifth.”

What Is a Grand Jury?

A grand jury is a group of individuals who determine whether enough evidence exists to charge a suspect. The Supreme Court has not ruled that this requirement applies to the states; therefore, only about half use the grand jury system. Grand juries are, however, a requirement for federal felonies.

In a grand jury proceeding, the prosecutor presents evidence against the suspect. The grand jury then either returns an indictment or a “no bill.” An indictment means the suspect will be formally charged with the offense; a no-bill means the suspect will not be charged with the offense.

Although the grand jury requirement protects a suspect so that they cannot be held without sufficient evidence, the proceedings are advantageous for a prosecutor for three reasons.

• First, the proceedings are secretive. Only the prosecutor and the jury are present. The defense attorney is not allowed in unless the prosecutor allows it, which is rare.
• Second, the exclusionary rule does not apply to grand jury proceedings, so evidence illegally obtained may be shown to the jury, even though such evidence will be suppressed at trial.
• Third, the prosecutor may choose which evidence to present to the jury. Therefore, if any evidence tends to show that the suspect might not have committed the crime, the prosecutor may refuse to present that evidence.

To indict a suspect, a grand jury must have probable cause, which means a reasonable belief that a crime has been committed and that the suspect committed the crime.

What Is Double Jeopardy?

The prohibition against double jeopardy means a person may not be tried or punished twice for the same crime. Double jeopardy is a complex area of the law that even the Supreme Court has struggled with, but it basically protects a defendant in three ways.

• First, a defendant may not be tried for a crime of which he or she already has been acquitted.
• Second, a defendant may not be tried for a crime of which he or she already has been convicted.
• Third, a defendant may not be punished multiple times for the same offense.

Like most areas of the law, there are exceptions to this rule. The main exception is that a defendant may be tried and punished twice if he or she is prosecuted separately at the state and federal level. For example, if a state government charges a person with drug possession, the federal government also may charge that person with drug possession. The reason for this is, under the Constitution, state and federal governments are separate, sovereign entities, free to prosecute any crime that violates their respective laws.

Another exception is when a defendant asks for a mistrial and is granted one, the defendant thereby waives the right against double jeopardy. The same is true of an appeal: If a defendant appeals a guilty verdict, he or she waives the right against double jeopardy. Thus, if the case gets overturned on appeal, the defendant may be tried again for the same crime.

Finally, although not technically an exception, double jeopardy applies only to criminal prosecutions. An individual may be tried both criminally and civilly for the same act. Perhaps the most famous instance of this is the murder case involving O.J. Simpson. Simpson was found not guilty of the murder charges but was subsequently sued in a civil court for wrongful death. He was found liable and forced to pay damages. The reason for this exception is that criminal acts are prosecuted by the government; civil cases, however, require one party to file suit against another.

What Is Due Process?

The 5th Amendment states that no one may be deprived of life, liberty or property without due process of law. There are two types of due process: procedural and substantive.

Procedural due process is based on the concept of fundamental fairness. It means that a person must be notified of the charges and proceedings against them and have an adequate opportunity to respond. This is done through an indictment (or an “information,” in the case of a misdemeanor), which is a formal document detailing the charges. Additionally, throughout the trial, the judge must protect the defendant’s due-process rights by ensuring the defendant understands every phase of the proceedings.

Substantive due process, just as procedural due process, extends beyond the context of criminal prosecutions. For example, the right of privacy, although not explicitly stated in the Bill of Rights, is a substantive right of the people that stems from the Due Process Clause of the Fifth Amendment.

In the area of criminal law, substantive due process means that the government may not prosecute an individual for conduct that affects certain fundamental rights. The Supreme Court has said that fundamental rights include freedom of speech, freedom of assembly and the free exercise of religion. Therefore, if the government wants to make a certain activity illegal in a way that infringes on a fundamental right, it must show that it has a compelling interest in doing so. Because of this standard, laws that restrict a fundamental right rarely are upheld.

The Supreme Court has set another standard for laws that infringe on non-fundamental rights, such as the right to physician-assisted suicide, late-term abortion, and international travel. If the government makes these types of activities illegal, all it must show is that it has a rational basis for doing so. This is a much lower standard to meet; therefore, laws prohibiting these activities frequently are upheld.

Other Resources

• 14th Amendment Equal Protection Clause
• 6th Amendment Simplified
• Fundamental Rights of the Accused
• Misdemeanor
• Notarized Document
• Copyrighting
• Status Offense