What is the 5th Amendment

Cite this article as: Jason Mance Gordon, "What is the 5th Amendment," in The Business Professor, updated January 2, 2015, last accessed April 7, 2020, https://thebusinessprofessor.com/knowledge-base/what-is-the-5th-amendment/.
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5th Amendment of the US Consstitution
What is the 5th Amendment of the US Constitution?

Next Article: 5th Amendment – Federal Due Process Clause


What is the 5th Amendment to the Constitution?

The 5th Amendment contains a number of protections for US Citizens, as follows:

The Right against Self-Incrimination. The US constitution states that no person shall be compelled in any criminal case to be a witness against themselves. More specifically it protects against self-incrimination by individuals (not corporations). That is, an individual cannot be compelled to testify against herself. It prohibits subjecting an individual to double jeopardy for alleged criminal conduct. This means that the government cannot subject an individual to multiple prosecutions for the same activity.

  • Example: I receive a subpoena to testify in a criminal trial. While on the stand, I am asked questions that may incriminate me if I answer truthfully. I request not to answer the question based upon the observance of my 5th Amendment right against self incrimination.

Prohibition of double jeopardy. The 5th Amendment prohibits double Jeopardy. A person cannot be tried or punished twice for the same crime. The prosecution cannot bring the same charges once a person has already been acquitted of a crime.  Moreover, if a defendant has already been sentenced, they cannot be punished again for the same crime. Exceptions to this protection include: if the defendant requests for a mistrial and it is granted then it means the defendant has waived their right against double jeopardy. If a person is tried criminally, they can still face a civil trial for the same set of circumstances, and this means double jeopardy only applies to criminal cases.

  • Note: The 5th Amendment does not prevent the federal and state governments from bringing charges against an individual for the same conduct.

The right to a grand jury: this is granted in federal felony cases. A grand jury is a group of individuals who decide whether adequate evidence exists to charge a suspect with a particular crime. This means that if the grand jury believes that adequate evidence has been presented, it returns an indictment if this is not the case the suspect will not be charged with a crime since the jury returns a no-bill.

The Due process: Arguably, the most important protection under the 5th Amendment, however, is the protection of an individual’s right against deprivation of “life, liberty, and property without due process of law.” This protection is known as the “Federal Due Process Clause”. It assures the protection of citizen’s substantive and procedural rights in the passage and execution of laws by the Federal Government. The court uses two factors to determine if the person has received the due process. The court regards the procedural due process. That is, the procedures in place for adjudicating the rights of an individual must be fundamentally fair. For example, a person must be informed of the facts when he is facing criminal charges. The court also considers the substantive due process. This means that a substantive law (proscribes conduct – not procedural)  that affects and individuals rights must be fundamentally fair in nature.

  • Note: The Supreme Court also recognizes a fundamental right to privacy implied in the 5th Amendment protections.

Eminent Domain: The 5th Amendment also requires the government to pay just compensation to individuals for property taken or appropriated for pubic use. This concept most frequently arises in cases of “eminent domain” (discussed in a subsequent chapter).

Discussion: Many people are familiar with the 5th Amendment in criminal law cases because of popular comedy skits (see The Dave Chapelle Show) or through popular movies (see Double Jeopardy). In what contexts are you familiar with the use of Amendment?

Discussion Input

  • As discussed, there are multiple rights established under the 5h Amendment. Perhaps the most well known right is that against self incrimination. For example, the following is a case that involved self-incrimination. (Ohio v. Reiner) in This case, the court granted a witness transactional immunity from prosecution, at the state’s request after she informed the court that she intended to defend her 5th Amendment privilege against self-incrimination. As a separate example, in  Davis v Passman, the court recognized a specific cause of action under the Equal Protection Clause through the 5th Amendment’s Due Process protections.

Practice Question: Meredith is confused about what protections exist under the 5th Amendment of the Constitution. She knows that there are criminal law protections and procedural protections. Can you briefly explain the various protections of the 5th Amendment to her?

Proposed Answer

  • The 5th amendment protects and provides a number of rights including the following: Right Against Self Incrimination; Protection Against Double Jeopardy; Right to Just Compensation in Eminent Domain Cases; Right to Grand Jury Indictment before Prosecution: and Due Process Rights. The right against self incrimination prohibits the Government from forcing an individual to testify against themselves. Double Jeopardy is when the Government seeks to prosecute an individual more than once for the same conduct. Just compensation, as the name implies, gives individuals the right to receive the market rate and value property seized by the government. The grand jury system prohibits the government from bringing felony charges against an individual without the approval of a jury of one’s peers. Lastly, the 5th Amendment provides substantive and procedural rights in the manner in which laws are enforced against citizens.

Academic Research

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.1936925

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

Lawson, Gary, Take the Fifth… Please!: The Original Insignificance of the Fifth Amendment’s Due Process of Law Clause (July 7, 2017). Brigham Young University Law Review, Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 17-21. Available at SSRN: https://ssrn.com/abstract=2998733

Murphy, 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

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.1936925

Blocher, Joseph, The Death Penalty and the Fifth Amendment (August 30, 2016). Northwestern University Law Review, Vol. 111, 2016; Duke Law School Public Law & Legal Theory Series No. 2015-52. Available at SSRN: https://ssrn.com/abstract=2682657 or http://dx.doi.org/10.2139/ssrn.2682657

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