Fifth Amendment (1791)

What It Says

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 offenses 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.

What It Means

Rooted in English common law, the Fifth Amendment seeks to provide fair methods for trying people accused of committing a crime. To avoid giving government unchecked powers, grand jurors are selected from the general population, and their work, conducted in secret, is not hampered by rigid rules about the type of evidence that can be heard. Grand jury charges can be issued against anyone except members of the military, who are subject to courts-martial in the military justice system. In the U.S. federal courts and some state courts, grand juries are panels of twelve to twenty-three citizens who serve for a month or more. If the jurors find there is sufficient evidence against individuals accused of crimes, the grand jury will indict them, that is, charge them with a crime.

Grappling with the Right Against Self-Incrimination

In the midst of the Cold War, the U.S. House of Representatives had a Committee on Un-American Activities (HUAC) that investigated individuals and organizations who were associated with the U.S.Communist Party. In 1949, the committee called Julius Emspak, an official of the Electrical, Radio, and Machine Workers of America Union, to testify. The committee asked him 239 questions about the union and its relationship with the Communist Party. He declined to answer sixty-eight of these questions, citing “primarily the first amendment, supplemented by the fifth.” A district court later held that Emspak’s statement about his rights was insufficient; he needed specifically to invoke his right against self-incrimination under the Fifth Amendment. He was found guilty of refusing to testify before a committee of Congress. Emspak appealed that decision to the Supreme Court, which closely analyzed the conditions that needed to be met in order for people to claim their right against self-incrimination and refuse to answer certain questions. The justices decided that witnesses need only state their wish to be protected under the Fifth Amendment in a way that the court could “reasonably be expected to understand.” Next the Court addressed the government’s claim that Emspak had waived his rights when he answered “no” to a question about whether he thought admitting his knowledge of certain people would lead him to a criminal prosecution and found that the release of constitutional rights cannot be inferred, and that Emspak’s “no” was not a definite release of his right against self incrimination. The Court decided that Emspak could choose not to answer the questions that the committee asked him, reasoning that if he were to reveal his knowledge of the individuals about whom he was asked he might have uncovered evidence that could have helped prosecute him for federal crimes. Finally, the Court found fault with the House committee for not overruling Emspak’s refusal to answer certain questions and instructing him to answer during the hearing. This would have given him a choice between answering or being sentenced for refusal to testify. Accused persons must refuse to answer knowing that they are required to answer. In Emspak v. United States (1955), the Supreme Court therefore set aside his fine and prison sentence.

Once indicted, defendants stand trial before a petit (from the French word for “small”) jury of six to twelve citizens who hear the evidence and testimony to determine whether the accused are guilty or innocent.

The Fifth Amendment protects people from being put in “double jeopardy,” meaning they cannot be punished more than once for the same criminal act and that once found innocent of a crime they cannot be prosecuted again for the same crime. The double jeopardy clause reflects the idea that government should not have unlimited power to prosecute and punish criminal suspects, instead getting only one chance to make its case.

The Fifth Amendment’s right against self-incrimination protects people from being forced to reveal to the police, a judge, or any other government agents any information that might subject them to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors find other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may prohibit the confession from being used as evidence at trial. Popularly known as the “right to remain silent,” this provision prevents evidence taken by coercive interrogation from being used in court and also means that defendants need not take the witness stand at all during their trials. Nor can the prosecution point to such silence as evidence of guilt. This right is limited to speaking, nodding, or writing. Other personal information that might be incriminating, such as blood or hair samples, DNA samples, or fingerprints, may be used as evidence, with or without the accused’s permission.

The right to due process of law protects those accused of crimes from being imprisoned without fair procedures. The due process clause applies to the federal government’s conduct. The Fourteenth Amendment, ratified in 1868, contains a due process clause that applies to the actions of state governments as well. Court decisions interpreting the Fourteenth Amendment’s due process rights generally apply to the Fifth Amendment and vice versa. Due process applies to all judicial proceedings, whether criminal or civil, that might deprive someone of “life, liberty, or property.”

The “taking clause” of the Fifth Amendment strikes a balance between private property rights and the government’s right to take property that benefits the public at large. The superior power the government can exert over private property is sometimes referred to as “eminent domain.” Government may use eminent domain, for instance, to acquire land to build a park or highway through a highly populated area, so long as it pays “just compensation” to the property owners for the loss.

The Fifth Amendment was designed to protect the accused against infamy as well as against prosecution.

Justice William O. Douglas, dissenting opinion, Ullmann v. United States (1956)

Fifth Amendment TIMELINE

1856 – Seizure of property without full hearing does not violate due process

The federal government seizes property from a man who owes it money. He argues that the lack of a hearing violates his Fifth Amendment right to “due process.” The Supreme Court rules in Murray’s Lessee v. Hoboken Land and Improvement Co. that different processes may be legitimate in different circumstances. To determine the constitutionality of a procedure the Court looks at whether it violates specific safeguards in the Constitution and whether similar types of proceedings had been used historically, particularly in England. In this case, because a summary method for the recovery of debts had been used in England, the procedure is constitutional in the United States.

1857 – Slaves cannot be taken from their owners by federal law

In Dred Scott v. Sandford, the Supreme Court decides that Dred Scott, who had moved with his owners to the free state of Illinois, returned to slavery when his owners moved back to Missouri, a slave state. The Court rules that slaves are property and that therefore the Missouri Compromise, which forbids slave owners from taking their property into free states violated the owners’ Fifth Amendment rights not to have private property taken from them without just compensation. The Court further declares that slaves are not citizens of the United States entitled to the protection of the Fifth Amendment.

1876 – The government can take private property

In Kohl v. United States, the U.S. Supreme Court upholds the federal government’s right to take land in Cincinnati, Ohio, to build a post office. The government’s ability to exercise the power of eminent domain contained in the Fifth Amendment is ruled essential to the government’s ability to fulfill its duties to the public. This important goal outweighs any inconvenience to individuals living on the land.

1922 – Conviction in both federal and state court is not double jeopardy

A defendant who had been convicted in state court objects to having to stand trial in federal court for the same crime. In United States v. Lanza, the U.S. Supreme Court rules that the double jeopardy clause was not violated because the state and federal legal systems are different government “units,” and that each can determine what shall be an offense against its peace and dignity.

1922 – Due process requires a hearing before someone is deported

In Ng Fung Ho v. White, the U.S. Supreme Court rules that the Fifth Amendment due process clause requires the government to hold a hearing before deporting a U.S. resident who claims to be a citizen, arguing that otherwise the person is deprived of liberty, and possibly in danger of losing property and life.

1924 – The right against self-incrimination applies in some civil cases

The U.S. Supreme Court considers the question of whether a debtor who testifies at his own bankruptcy hearing is allowed to refuse to answer questions that might incriminate him. In McCarthy v. Arndstein, the Supreme Court holds that the Fifth Amendment privilege against self-incrimination applies to defendants in civil cases, not just criminal cases, if criminal prosecution might result from the disclosure.

1943 – Curfew regulations do not violate due process rights

In the wake of Japan’s attack on Pearl Harbor, Congress passes a law requiring Japanese Americans to live in restricted areas and obey curfews. In the case of Hirabayashi v. United States, the U.S. Supreme Court rules that this is not a violation of the Japanese Americans’ Fifth Amendment right to due process, as they may have divided loyalties during wartime and their segregation is necessary to protect national security.

1944 – Organizations do not have the right against self-incrimination

In United States v. White, the U.S. Supreme Court rules that a labor union under criminal investigation cannot refuse to turn over its records on the grounds of self-incrimination, explaining that the Bill of Rights was enacted to protect individuals, not organizations, from government control.

1966 – A suspect has the right to remain silent

In Miranda v. Arizona, the U.S. Supreme Court rules that the right against self-incrimination is not limited to in-court testimony, but also applies when a suspect is taken into police custody for questioning. Before any questioning can begin, police must explain that the suspect has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The court refuses to accept as evidence any statements made after the right to remain silent has been invoked. These mandatory statements by police are known as Miranda rights and the process of informing is known as Mirandizing.

1969 – Double jeopardy applies to state trials

At first the Bill of Rights was seen as a limitation on the federal government’s powers, not on the state government. In Benton v. Maryland, the U.S. Supreme Court rules that the double jeopardy clause represents a fundamental ideal of “our constitutional heritage,” and extends double jeopardy protection to defendants in state court trials. The justices also cite the Fourteenth Amendment’s prohibition on state governments limiting liberty without due process. Double jeopardy, they rule, violates the due process rights of the accused.

1993 – Prior notice and a hearing are required

Four years after police found drugs and drug paraphernalia in a man’s home and he pleaded guilty to drug offenses under Hawaiian law, the federal government files a request to take his house and land because it had been used to commit a federal drug offense. Following an ex parte proceeding (in which only the prosecution participates), a judge authorizes the property’s seizure without prior notice to the individual. The Supreme Court, in United States v. James Daniel Good Real Property, rules that the property owner was entitled to advance notice and a full hearing before the government could take his home and land.

2003 – A death sentence imposed after retrial is not double jeopardy

A defendant is convicted of first-degree murder, but the jury cannot reach a unanimous decision whether to sentence the defendant to death or to life in prison. By default, a life sentence is imposed. The defendant appeals his conviction and wins a retrial, but at the second trial the jury unanimously hands down a death sentence. In Sattazahn v. Pennsylvania, the U.S. Supreme Court rules that this second verdict does not violate the double jeopardy clause because the first jury’s inability to reach a unanimous verdict means that there was no official finding of the facts regarding what kind of penalty the defendant deserved. As these questions remain open at the time of the second trial, the second jury can look at the facts again.