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5th Amendment – Criminal Law Protections

Cite this article as: Jason Mance Gordon, "5th Amendment – Criminal Law Protections," in The Business Professor, updated January 5, 2015, last accessed April 8, 2020, https://thebusinessprofessor.com/knowledge-base/5th-amendment-criminal-law-protections/.
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5th Amendment Criminal Protections
This video explains the various criminal law protections afforded under the 5th Amendment.

Next Article: 6th Amendment Protections – Criminal Law


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?

Discussion Input

  • The right to a grand jury was included in the Fifth Amendment in order to protect civilians from facing serious criminal charges without public oversight. By requiring a grand jury made up of regular people, the potential for corruption and frivolous charges was lowered. However, in modern practice, since prosecutors primarily control what evidence the grand jury sees and hears, many consider them to be a tool of the prosecution rather than an independent body. Many consider the Fifth Amendment’s protections against self-incrimination to be one of the most important fundamental rights. Much like the Fourth Amendment’s protections against warrantless searches and seizures, it would be hard to fathom living in a society where law enforcement could force civilians to answer questions that could potentially subject them or others to imprisonment, fines, or both. Additionally, there is an argument that forced testimony given by the accused is unlikely to be accurate and complete and thus would need to be verified or corroborated to ensure that they are telling the truth. If the Fifth Amendment’s protections against self-incrimination didn’t apply to pre-trial investigations, law enforcement could simply force the accused to confess and thus all but guarantee a conviction at trial. In this scenario, a trial might not even be necessary as the accused would likely be highly motivated to negotiate a plea bargain. Even without a confession, since so few criminal cases actually go to trial, in order for the protection have any teeth it must apply to pre-trial investigations.  The Fifth Amendment’s protection against double jeopardy – being forced to stand trial twice for the same offense – seems highly at odds with our dual federal and state court systems. However, federal and state offenses are often not the same and may have different charges with different elements and different defenses for the same conduct. Additionally, in practice, it is rare for both federal and state prosecutors to prosecute the same defendant for the same conduct. Federal prosecutors generally prioritize serious offenses and crimes involving conduct occurring across state lines and the state prosecutors’ office generally only prosecutes crimes that the federal prosecutors’ office declines.

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?

Proposed Answer

  • The Fifth Amendment only protects people from being compelled to testify against themselves and not from being compelled to testify against others. Donna can be compelled to testify against Alice as long as her testimony does not also implicate herself in any crimes. Since this is unlikely to be true – after all, they committed the crime together – the prosecutor would likely have to offer Donna immunity in order to compel her testimony. This means that Donna’s testimony in Alice’s trial cannot be used as evidence against her in her own criminal trial.

Academic Research

Davies, Thomas Y., Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a ‘Trial Right’ in Chavez V. Martinez. Tennessee Law Review, Vol. 70, pp. 987-1045, 2003. Available at SSRN: https://ssrn.com/abstract=992830

Maclin, Tracey, The Prophylactic Fifth Amendment (May 2, 2017). Boston University Law Review, Vol. 97, Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 17-14. Available at SSRN: https://ssrn.com/abstract=2963869

Mick, Alan Armand, The Fifth Amendment: Right or Privilege? (October 1, 2011). Available at SSRN: https://ssrn.com/abstract=1936925 or http://dx.doi.org/10.2139/ssrn.1936925Murphy, Erin Elizabeth, DNA and the Fifth Amendment (April 26, 2011). NYU School of Law, Public Law Research Paper No. 11-28. Available at SSRN: https://ssrn.com/abstract=1823722 or http://dx.doi.org/10.2139/ssrn.1823722

Cohen, Aloni and Park, Sunoo, Compelled Decryption and the Fifth Amendment: Exploring the Technical Boundaries (February 4, 2018). Harvard Journal of Law & Technology, Vol. 32, Fall 2018. Available at SSRN: https://ssrn.com/abstract=3117984 or http://dx.doi.org/10.2139/ssrn.3117984

Maclin, Tracey, The Right to Silence v. The Fifth Amendment (March 29, 2016). University of Chicago Legal Forum, 2016 Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 16-09. Available at SSRN: https://ssrn.com/abstract=2756086

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