The Fifth Amendment to the US Constitution


police, arrest, detention

Amendment V

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 in any case shall be compelled 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 writers of the United States Constitution had just won a war for independence from Great Britain, which at that time was the most powerful empire in the world. They knew what it meant to commit a capital offense because the Revolutionary War was an outright rebellion. Every one of them had faced the possibility of execution for their actions. As Benjamin Franklin famously declared at the signing of the Declaration of Independence, “We must all hang together, or, most assuredly, we shall all hang separately.” 

The Right to a Grand Jury

Feeling the necessity of assuring that the accused receive a fair trial, our founders included the grand jury in our legal system. Institutionalized in the Magna Carta of 1215, this British tradition was designed to protect the rights of citizens against a tyrannical king. 

regular jury consists of 6 to 12 people hearing a trial and deciding whether the accused is guilty of the preferred charges. The prosecutor and defender are present along with the judge and the accused. Proceedings may be open to the public or closed, depending on the situation. The verdict must be unanimous.

In contrast, a grand jury of 16 to 23 impartial strangers sits down with the prosecutor and decides whether there is enough evidence to justify a trial.

This procedure is reserved for “a capital, or infamous crime” such as a high-profile murder case. The proceedings are more informal and the grand jury can consider evidence that would not be admissible in a regular jury trial.

The purpose is to explore the offense and to determine whether there is sufficient evidence to proceed with a trial. The grand jury trial is confidential so that the reputation of the accused will not suffer if not indicted, and so that the witnesses will speak freely. 

The prosecutor uses the grand jury to decide whether to go forward with prosecution, but can prosecute if the grand jury does not indict.

An indictment is the statement of the charge for which the accused is to stand trial. Depending on the jurisdiction, an indictment requires the vote of two thirds or three fourths of the grand jury.

If the grand jury does not indict, the prosecutor has to present evidence to the judge that the case should still be tried.

Military court replaces civilian court for the military service member. The commander of the accused decides whether to conduct a hearing and determines guilt and punishment. The accused may appeal the decision to the next higher commander.

The most serious crimes are tried in a general court-martial. An Article 32 investigation, similar to a grand jury, occurs before a general court-martial. The Article 32 officer makes a recommendation about whether to proceed, but this recommendation is not binding.

The court may consist of a single judge or a judge and not less than five members. Capital cases, with the possibility of a death penalty, are tried with the latter.

The members render a decision concerning guilt “beyond a reasonable doubt.” Conviction leads to a sentencing hearing. Guilty verdicts can be reviewed by a higher authority and can be appealed all the way to the United States Supreme Court.

The procedures put in place by the Constitution make it more difficult to convict someone of a crime, and that is necessary because in the United States a person is considered innocent until proven guilty in a court of law.

There is nothing more unfair than being punished for something you did not do. Our founders knew this and wrote the Fifth Amendment to the Constitution to make sure we had a chance to avoid punishing the innocent.

Double Jeopardy

Standing trial for a crime is humiliating, time consuming, and expensive. At the end of trial you may lose your freedom, your livelihood, and even your life. You have marshalled all your resources to pay the lawyers who will argue that you do not deserve prison, fines, or execution.

The media have been at your heels asking questions and trying your case in the court of public opinion. Your friends and family are divided on whether you did it.

Your boss, if you still have a job, is worried about the publicity. You have spent time in jail, posted bail, and lived a nightmare for weeks, months, or even years.

Finally the verdict comes down: “Not guilty!” It is over. You won. You can rest. Thanks to the Double Jeopardy clause in the Fifth Amendment, you cannot be tried twice for the same offense, whether you were found guilty or acquitted. 

This clause also prohibits being punished twice for the same offense. After one jurisdiction imposes a sentence for your crime, that’s it. The next state over cannot further punish you because the original punishment has already addressed your crime.

This does not bar an appeal. In a criminal case, the defendant can appeal a conviction, but the government may not appeal a not guilty verdict.

The process of appeal is the way in which disputed cases filter up to the higher courts until the appellant stops appealing or the next higher court refuses to hear the case. In this way a case can proceed all the way up to the Supreme Court of the United States.

The Double Jeopardy clause does not apply to civil cases. Criminal cases involve punishment, whereas civil cases provide compensation to a wronged party.

OJ Simpson, a well-known football player, was accused of killing his wife and her friend in Los Angeles in 1994. He was acquitted of both murders in criminal court based on reasonable doubt of the DNA evidence.

In 1997 a civil jury found Simpson responsible for both deaths in a wrongful death trial and awarded $33.5 million dollars to the families of the victims. 

Criminal courts must prove the guilt of the defendant “beyond a reasonable doubt.” The civil court standards only require “the preponderance of evidence,” which is much easier to prove. Thus OJ Simpson could be acquitted in criminal court on the basis of doubt but still be held responsible in civil court.

This is because civil courts only impose financial punishments, not “jeopardy of life or limb.” (We will get to the part about limbs when we cover the Eighth Amendment. They really were talking about body parts.)

Pleading the Fifth

“Do you swear to tell the truth, the whole truth, and nothing but the truth?” This is the expectation for testifying in court: that you tell the truth without embellishment or omission.

Failure to tell the truth in court is perjury, a punishable offense. There is an exception, however. You can plead the Fifth Amendment to the US Constitution, which states that you shall not be compelled in any criminal case to witness against yourself.

If you have watched many police shows on television, you can recite your Miranda rights with me now: “You have the right to remain silent. Anything you say can and will be held against you in a court of law. You have the right to an attorney. If you cannot afford an attorney one will be appointed for you.”

The Supreme Court determined in Miranda vs Arizona in 1966 that the defendant must be informed of his fifth amendment rights before police interrogation.

Our system of criminal justice works on the accusatorial system, in which the government finds out what happened by finding evidence, rather than the inquisitorial system, which requires the alleged offender to incriminate himself.

This is important because the defendant’s need for self-protection will override his compulsion to tell the truth. It also keeps the authorities in check.

You have heard of the Salem Witch Trials, in which suspected witches were tortured until they confessed to crimes they probably had not committed. That is the inquisitorial system at its worst.

You may invoke the Fifth in police interrogations and in court proceedings. The Fifth Amendment does not require the accused to remain silent. You may invoke your rights or you may waive your rights.

What you may not do is change your mind mid-confession. Once you have started to implicate yourself in a crime, the courts consider you to have waived your right to remain silent.

You may not claim the Fifth Amendment as a way to withhold documents that the government already knew about, but you can choose not to volunteer documents that have not been requested. A corporation cannot invoke the Fifth Amendment to protect its documents.

If you testify for the defense, you do not have the option of refusing to be cross-examined by the prosecution.

When a person who is not the accused has to testify, he too has the option to plead the Fifth if he fears his testimony will incriminate him in a crime.

The prosecutor has the option of offering immunity, meaning that the witness will be free from prosecution in exchange for his testimony.

Despite your favorite TV show’s tendency to show the cops badgering the accused, there are limits to how the police can extract a confession.

A forced confession is not deemed trustworthy. If you are in custody and you feel threatened, you might confess things you did not do just to feel safe.

The self-incrimination clause of the Fifth Amendment is a foundational statement of your right to be free from coercion when facing arrest or testifying in court. This keeps you from confessing what you did not do because you fear the government. It is a big part of what keeps America free.

Due Process

Under the Fifth Amendment, you have the right to due process.  Substantive due process is implicit and controversial. It covers rights not specifically enumerated in the Constitution and is therefore subject to interpretation. Proposed substantive rights include the right to work and to raise your family.

Procedural due process is the more obvious and accepted interpretation of the clause. The court cannot deprive you of life, liberty, or property without following the correct procedures.

  • Proper notice must be given.
  • The court must be unbiased.
  • The defendant must be able to give evidence and argue the case.
  • The prosecutorial evidence must be available to the defendant.
  • The defendant has a right to counsel.
  • The decision must be based on the evidence.
  • The record must show the reasons for the decision made by the court.

This keeps the court system from making arbitrary and capricious decisions.

Last Valentine’s Day HR 1236 was introduced in Congress. See it on the congress.gov website.

Termed the “Extreme Risk Protection Order Act of 2019” (ERPO) but commonly known as a Red Flag Law, this bill proposed “To support State, Tribal, and local efforts to remove access to firearms from individuals who are a danger to themselves or others pursuant to court orders for this purpose.”

The vague language of this short bill authorizes the courts to take away your weapons “based on a finding that the person poses a danger of causing harm to himself, herself, or others by having access to a firearm.”

In our legal system we require evidence that a crime has been committed before we apply a penalty. This bill does not meet that criterion.

The person “posing a danger” has not committed a crime. He just looks like he might. The bill singles out “individuals whose access to firearms poses a danger of causing harm to themselves or others by increasing the risk of firearms suicide or interpersonal violence[.]”

What defines the behavior that poses the risk? Is it a spoken threat, a dirty look, or a tendency to eat TV dinners in your underwear in front of the television?

Maybe your neighbor thinks you are planning an act of terrorism because you get a lot of signature-required shipments from UPS. Maybe your girlfriend’s father doesn’t like the way you talk. Maybe a jealous coworker wants your corner office.

It isn’t hard to paint a picture of a person whose stress level is out of control. It could be argued that anyone who is having a bad day might appear to be at an increased risk of violence. 

After a petitioner fills out an application describing the risk, the targeted individual is notified and given a hearing within 30 days. The court determines whether the risk qualifies and then may confiscate the person’s guns for 30 days to a year.

The firearms are retained by a law enforcement officer or agency or its contracted agents. The order “prohibits such person from having under his or her custody or control, owning, purchasing, possessing, or receiving any firearms, or requires the surrender or removal of firearms from the person,” all based on the possibility that said person could harm himself or others. No need to prove intent, just risk.

That’s all the detail you get on that bill. No enumeration of what sort of behavior makes it appear that a person will soon commit a violent act.

No indication of what the targeted person could do to appease the court’s worries. The burden of proof is supposed to be on the prosecutor, but here there is nothing to prove because nothing has happened; someone just thinks it might!

We can’t even use words like the “defendant” or the “accused” to described the person singled out for review because he has not been accused and has nothing to defend. 

Happily, no further action has been taken since HR 1236 was introduced last February with 211 cosponsors, two of whom were Republicans from New Jersey and Pennsylvania. The rest were Democrats. See the full list here on congress.gov and call your Congressperson to state your opinion of this gun-grabbing legislation.

Certain convicts, the mentally ill, and those who have a domestic violence restraining order against them are already barred from owning guns.

Those who think Americans are not capable of handling the responsibility of gun ownership would like to wrest the means of self defense from the rest of us by any means at their disposal.

Eminent Domain

The Fifth Amendment sets limits on public use of private property under the concept of eminent domain.

The most obvious example of the need for public land access is interstate travel. The Interstate Highway System comprises over 45,000 miles of roads with sufficient access needed on each side of the road for shoulders, ditches, and ramps.

It would not be fair to demand access to a stripe of a farmer’s land for the highway without paying for the land. The taking of the land must be compensated at the fair market value, typically determined with a survey.

Other uses of eminent domain include condemning land surrounding a hospital or university to make room for expansion of those institutions.

More controversially, eminent domain may be used to create industrial parks. Advocates justify these takings by pointing out the general economic improvement the community will enjoy.

Adversaries suggest that the government need not be involved in buying private land to reassign it to a private developer as this could be accomplished between the two private parties.

In addition to physical taking, the government may decrease the value of a property with regulatory takings, by changing the law so that the land cannot be used to economic benefit by its owner.

This can apply to contract rights, easements, personal property, trade secrets, and other intangible property.

The noxious use doctrine states that regulations for the health, safety, and welfare of the public do not require compensation. 

The public good must be balanced against individual rights, including the right to own private property. In America we are free to amass wealth and property, and this helps fuel private industry.

We innovate by creating new products or improving the products that we provide. The free market rewards us for our efforts by buying what we produce. They get things they need and want; we profit from our efforts. That is capitalism.

In some countries the control of property and industry is in the hands of the government. Controls are set about what can be made and at what price. Land and businesses are owned by the central government. When people need things, they petition the government to provide them. That is collectivism, which ranges from social democracy all the way to fascism.

As a nation we are sliding further down the path to fascism. In the name of the public welfare, state governments have closed entire industries so that close-contact services such as haircuts and massages would not spread the COVID 19 virus from person to person.

Schools were closed in March and reopening has not been guaranteed in the fall. Restaurants were forced to close or only operate as take-out. Churches were barred from meeting. Clothing stores were closed and those that have reopened are not allowed to use their dressing rooms.

Businesses small and large went bankrupt under the pressure of months of suspended business, including J Crew, Neiman Marcus, and countless mom-and-pop stores which make up the heart and soul of our economy.

Reopenings have begun for those who have survived, but with mandatory limits on how many people can visit a store, often only twenty percent of capacity. This mandate to shut down or drastically reduce capacity constitutes a severe limit to the use of the business owner’s property.

The United States government has issued a check to every American below a specified income level to ease the burden, but $1200 per adult and $500 per child will in no way replace the income lost, the livelihoods interrupted, and the businesses that have failed.

It will be interesting to see whether business owners decide to test the doctrine of eminent domain as it applies to the COVID 19 shutdown. Will the courts rule that killing businesses was justified? Or will they decide that your right to use your property to run a business was taken without just compensation?

Don’t give up your rights. Take action by watching the legislation and calling your representatives often. Speak openly with friends and acquaintances about any attempt you see to encroach on your rights.

If We the People don’t stand up for the Constitution, our elected officials will dismantle it right under our noses. Valuable advice can be found inscribed on a statue at the National Archives: “Eternal vigilance is the price of liberty.” Stay alert!

Read the Bill of Rights on this website and keep reading my blog as we explore our Constitutional rights.

I went to the Cornell Law School Site to beef up my fifth amendment knowledge before I wrote this article.

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Carla Pittman

Carla is a Speech Pathologist working in Home Health by day and a blogger by night. She married Chris in 2008 and is working to help him unite his love of guns with his passion for teaching others to carry safely. Her other impetus for blogging is to make Americans aware of their Constitutional rights, which are at risk in the current political environment.

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