Understanding Your Fifth Amendment Rights

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The 5th Amendment

The Fifth Amendment of the U.S. Constitution provides several rights that offer protection for people involved in a criminal investigation. Despite being part of our collection of basic rights and often referred to in media and popular culture, there is a great deal of misunderstanding about the Fifth Amendment.

What Does the Fifth Amendment Say?

The official text of the Fifth Amendment is as follows:

“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 offence 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.”

The Fifth Amendment goes on to address certain specific issues, including:

  • Self-incrimination and confessions
  • Due Process, both procedural and substantive
  • Double jeopardy
  • Grand jury indictment
  • Power to compel testimony and disclosure
  • The Operation of the Exclusionary Rule
  • National Eminent Domain Power

Self-Incrimination

One of the most important protections provided by the Fifth Amendment is the right against self-incrimination. This means you have the legal right to refuse to answer questions or speak to anyone involved in a criminal investigation if you believe what you say could incriminate you.

The Fifth Amendment states that nobody “shall be compelled in any criminal case to be a witness against himself.” This means you cannot be forced to testify or answer any questions if what you say could be used against you by the prosecution. This is sometimes referred to as “pleading the Fifth” or “taking the Fifth.”

This right is available in both state and federal court and both criminal and civil cases. The protection provided by the Fifth Amendment is intentionally broad and if a statement could be used against you or result in the discovery of evidence that could be used against you, your right to not share or reveal that information is protected.

Due Process

In addition to protection against self-incrimination, the Fifth Amendment also provides due process rights.

In general, due process ensures government authorities cannot take a person’s right to life, liberty and property, and ensures without proving that a crime has been committed.

Due process includes following proper procedures during criminal matters. For instance, anyone arrested for a crime must be told of the charges against them, informed of their right to not speak, and told that they have a right to work with an attorney.

To read a more detailed explanation of due process, visit this online resource from Cornell Law School.</a>

Double Jeopardy

The Fifth Amendment also provides protection against double jeopardy, which means a person cannot be tried or convicted for the same crime twice.

Someone protected by the Fifth Amendment cannot be prosecuted again for the same offense following an acquittal, conviction and/or punishment. He or she cannot be retried for the same offense, even if new evidence arises and even if that evidence is damning.

Double jeopardy applies only in criminal cases and does not prevent defendants from facing civil lawsuits, even if they previously received an acquittal for the same accusations.

Grand Jury

Finally, the Fifth Amendment provides the right to a grand jury if a person is facing federal and state felony charges. Grand juries are used to determine whether a person should be indicted for a crime based on the evidence the prosecution has gathered; whether enough probable cause exists for a case to proceed.

Grand juries ensure that prosecutors don’t have the power to charge people and put them through the ordeal of a trial, and damage to their reputation, when there is little to no evidence to support the charges against them.

If you have questions about your Fifth Amendment rights or you want to speak to someone about charges against you, contact Gary Tabakman at (713) 331-9457.