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5th Amendment Criminal Law Protections

9. What protections does the 5th Amendment provide to individuals subject to criminal charges?

The 5th Amendment provides several procedural, due process rights to citizens. In additional to the right to due process of law, the 5th Amendment includes the following notable protections.

  • Right to Grand Jury – The 5th Amendment provides that anyone tried of a capital or infamous crime must receive a presentment or indictment by a grand jury.
  • Protection Against Self-incrimination – The 5th Amendment protects against compulsory self incrimination. It protects the accused from being compelled to testify against herself. It does not protect against being compelled to produce evidence. For example, a business executive can be made to produce documents. It only protects testimony that is related to an assertion of fact or the disclosure of information. The protection against compulsory self-incrimination does not apply to business entities. The only entity (quasi-entity) protected is the sole proprietorship, because the entity and individual are one in the same.
  • Protection Against Double jeopardy – No “person shall be subject for the same offense to be twice put in jeopardy of life or limb.” If an illegal activity violates both federal and state laws, double jeopardy does not prohibit two trials, one in federal court and the other in the state court system.

Procedural due process rights apply to civil, administrative, and criminal proceedings. The basic premise is that individuals enjoy 5th Amendment protections from government infringement of their rights (including rights to property).

  • Discussion: Why do you think the 5th Amendment includes a right to a grand jury? Do you think that an individual accused of a crime should have to testify? Do you think that this protection should apply to the criminal investigation stage as well as during formal trial? How do you feel about the fact that the 5th Amendment does not prohibit the Federal Government and a state government from prosecuting an individual for committing a single crime?
  • Practice Question: Donna is charged with participating in a bank robbery orchestrated by Alice. Eric, the prosecutor, decides to pursue separate trials against Donna and Alice. Eric wants to call Alice as a witness to testify against Donna and vice versa. Can Donna be compelled to testify in trial against Alice?

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