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:

• grand juries for capital crimes

• a prohibition on double jeopardy

• a prohibition against required self-incrimination

• a guarantee that all criminal defendants will have a fair trial

• a promise that the government will not seize private property without paying market value.

While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has interpreted the Fifth Amendment’s provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment.

Grand Juries:  Grand juries are a holdover from hundreds of years ago, originating during Britain’s early history. The grand jury originally served to protect the accused from overly-zealous prosecutions by the English monarchy.  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.

Double Jeopardy:  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.

Self-Incrimination:  The Fifth Amendment 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. 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.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violative of the Fifth Amendment’s 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.

Due Process Clause:  The guarantee of due process for all citizens 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 a 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.

Cases:

Miranda v. Arizona:

Facts of the case:  This case represents the consolidation of four cases, in each of which the defendant confessed guilt after being subjected to a variety of interrogation techniques without being informed of his Fifth Amendment rights during an interrogation.

On March 13, 1963, Ernesto Miranda was arrested in his house and brought to the police station where he was questioned by police officers in connection with a kidnapping and rape. After two hours of interrogation, the police obtained a written confession from Miranda. The written confession was admitted into evidence at trial despite the objection of the defense attorney and the fact that the police officers admitted that they had not advised Miranda of his right to have an attorney present during the interrogation. The jury found Miranda guilty. On appeal, the Supreme Court of Arizona affirmed and held that Miranda’s constitutional rights were not violated because he did not specifically request counsel.

Question:  Do the Fifth Amendment’s protection against self-incrimination extend to the police interrogation of a suspect?

Outcome:  Chief Justice Earl Warren delivered the opinion of the 5-4 majority.

The Fifth Amendment’s protection against self-incrimination is available in all settings. Prosecution may not use statements arising from a custodial interrogation of a suspect unless certain procedural safeguards were in place. Such safeguards include proof that the suspect was aware of his:

right to be silent,

that any statement he makes may be used against him,

that he has the right to have an attorney present,

that he has the right to have an attorney appointed to him,

that he may waive these rights if he does so voluntarily, and

that if at any points he requests an attorney there will be no further questioning until the attorney arrives.

The Court held that interrogation techniques used in the underlying cases did not technically fall into the category of coercive, but they failed to ensure that the defendant’s decision to speak with the police was entirely the product of his own free will.