What Are Fifth Amendment Rights?
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 offense 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.
A common scene in crime dramas on television or in the movies is that of a suspect being advised by a police officer of his right to remain silent following an arrest. The litany beginning with "you have the right to remain silent" from the appeal of a criminal conviction in which the Supreme Court was asked to interpret the role law enforcement should have in advising an individual of his or her right against self-incrimination under the Fifth Amendment. However, protection afforded by the Fifth Amendment, ratified as part of the Bill of Rights in 1791, extends beyond incriminating statements and police interrogation.
Background and historical perspective
The concern in America in the latter part of the 18th century was of the newly-formed federal government becoming a threat to the rights of citizens and the ability of the states to govern as had happened under British rule. The rights found in the Fifth Amendment include the following:
- Presentation to a grand jury and the requirement of an indictment before a person can be prosecuted for serious criminal offenses usually referred to as felonies
- Protection against double jeopardy or being charged again for the same offense following an acquittal
- Prohibiting government from compelling someone from giving incriminating statements or testimony in criminal proceedings
- Ensuring all defendants in criminal cases the right to a fair trial and due process of law
- Protection against government seizure of property without payment of fair compensation
Fifth Amendment protections were originally limited only to actions by the federal government, but decisions by the Supreme Court over the years has expanded some, but not all, of its protections to include activities by state governments.
Supreme Court expansion of the Fifth Amendment
It may come as a surprise to learn that indictment by a grand jury is only a requirement when someone is prosecuted for a felony in federal court. Although you will find grand juries in most states, their existence is due to the laws or constitutions of the states rather than the Fifth Amendment. The Supreme Court has not made grand jury indictment a right imposed on the states in the same way as the other rights found in the Fifth Amendment.
Fifth Amendment due process foreshadows the Fourteenth Amendment
The language appearing in the Fifth Amendment ensuring the fairness of proceedings in federal courts is has come to be known as the "due process clause." The Fourteenth Amendment, ratified by the states in 1868, contains identical language, but it expands the scope of due process protection to apply to the states and state court proceedings.