Fifth Amendment

The Fifth Amendment to the U.S. Constitution reads:

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 Bill of Rights, which consists of the first ten amendments to the U.S. Constitution,
enumerates certain basic personal liberties. Laws passed by elected officials that infringe on these
liberties are invalidated by the judiciary as unconstitutional. The Fifth Amendment to the
Constitution, ratified in 1791, represents five distinct liberties the that Framers attempted to
safeguard from majoritarian impulses: (1) the right to be indicted by an impartial Grand Jury
before being tried for a federal criminal offense,(2) the right to be free from multiple prosecutions
or punishments for a single criminal offense, (3) the right to remain silent when prosecuted for a
criminal offense, (4) the right to have personal liberties protected by Due Process of Law, and (5)
the right to receive just compensation when the government takes private property for public use.

The Framers of the Fifth Amendment intended that its provisions would apply only to the actions
of the federal government. However, after the Fourteenth Amendment was ratified, most of the
Fifth Amendment's protections were made applicable to the states. Under the Incorporation
Doctrine, most of the liberties set forth in the Bill of Rights were made applicable to state
governments through the U.S. Supreme Court's interpretation of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment. As a result, all states must provide protection
against Double Jeopardy, Self-Incrimination, deprivation of due process, and government taking
of private property without just compensation. The Grand Jury Clause of the Fifth Amendment
has not been made applicable to state governments.

Double Jeopardy Clause

The Double Jeopardy Clause of the Fifth Amendment prohibits state and federal governments
from reprosecuting for the same offense a defendant who has already been acquitted or convicted.
It also prevents state and federal governments from imposing more than one punishment for the
same offense.

For more than a century, courts have wrestled with the question of what constitutes an acquittal
such that a person has already been placed in jeopardy for a particular offense. However, all
courts agree that the Double Jeopardy Clause applies only to legal proceedings brought by state
and federal governments in criminal court. It does not apply to legal proceedings instituted by
purely private individuals in civil court.
The U.S. legal system has two primary divisions, criminal and civil. Criminal actions are
designed to punish individuals for wrongdoing against the public order. Civil actions are
designed to compensate victims with money damages for injuries suffered at the hands of
another. An individual who has been acquitted in criminal court of murder can, without violating
the Double Jeopardy Clause, be required in civil court to pay money damages to the family of a
victim. Thus, the successive criminal and civil trials of O. J. Simpson, regarding the deaths of
Nicole Brown Simpson and Ronald Goldman, did not constitute double jeopardy.

The Fifth Amendment's prohibition against double jeopardy is rooted in Anglo-Saxon

Jurisprudence. Yet, in England, the Crown sometimes ignored the right against double jeopardy.
In certain important cases where an acquittal undermined royal interests, the defendant was tried
again in a different manner or by a different court. The protection against double jeopardy was
also extremely narrow under English Law. It applied only to capital crimes, in which the
defendant would be subject to the death penalty if convicted. It did not apply to lesser offenses
such as noncapital felonies and misdemeanors.

Massachusetts was the first colony that recognized a right against double jeopardy. Its colonial
charter provided, "No man shall be twise [sic] sentenced by Civil Justice for one and the same
Crime, offence, or Trespasse" (as quoted in United States v. Halper, 490 U.S. 435, 109 S. Ct.
1892, 104 L. Ed. 2d 487 [1989]). This charter, which served as a model for several other
colonies, expanded the protection against double jeopardy to all crimes and offenses, not just
capital felonies. Nonetheless, when the Bill of Rights was ratified in 1791, the constitutions of
only two states expressly afforded double jeopardy protection. Thus, when James Madison
submitted his proposal for the Fifth Amendment to Congress, he wanted to be sure that the right
against double jeopardy would not be abused by the government, as it had been in England, or
altogether forgotten, as it had been in the constitutions of eleven states.

Although Congress and the state ratifying conventions said very little about the Fifth
Amendment's Double Jeopardy Clause, the U.S. Supreme Court has identified several concerns
that the Framers were trying to address when they drafted it: (1) preventing the government from
employing its superior resources to wear down and erroneously convict innocent persons; (2)
protecting individuals from the financial, emotional, and social consequences of successive
prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be
compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting
prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to
impose cumulative punishments not authorized by the legislature.

Self-Incrimination Clause
The Fifth Amendment's right against self-incrimination permits an individual to refuse to disclose
information that could be used against him or her in a criminal prosecution. The purpose of this
right is to inhibit the government from compelling a confession through force, coercion, or
deception. The Self-Incrimination Clause applies to any state or federal legal proceeding, whether
it is civil, criminal, administrative, or judicial in nature. This privilege is frequently invoked
during the trial phase of legal proceedings, where individuals are placed under oath and asked
questions on the witness stand.
The privilege is also asserted with some frequency during the pretrial phase of legal proceedings.
In the pretrial phase of criminal cases, it is usually asserted in response to pointed questions asked
by law enforcement agents, prosecutors, and other government officials who are seeking to
determine the persons responsible for a particular crime. During the pretrial phase of civil cases,
parties may assert the right against self-incrimination when potentially damaging questions are
posed in depositions and interrogatories.

The right against self-incrimination largely took hold in English law with the seventeenth-century
trial of John Lilburne. Lilburne was a Puritan agitator who opposed British attempts to impose
Anglican religious uniformity across England. In 1637, Lilburne was prosecuted for attempting to
smuggle several thousand Puritan pamphlets into England. Before the Star Chamber (an English
court with jurisdiction to extinguish nonconformity in the realm), Lilburne refused to take an oath
requiring him to answer truthfully any question asked of him. He said that he could see that the
court was trying to ensnare him, and he claimed that the law of God and the law of the land
supported his right against self-accusation. Lilburne was whipped and pilloried for refusing to
take the oath. Parliament later declared his punishment illegal, abolished the Star Chamber, and
ultimately recognized the right against self-incrimination.

The American colonists, particularly the Puritans in Massachusetts, were familiar with the plight
of Lilburne. Nonetheless, the Massachusetts Body of Liberties, a collection of rules of conduct
for the Puritan colonists taken nearly verbatim from the Bible, permitted the use of torture to
extract confessions from defendants who were accused of capital crimes. Many other colonies
subjected political and religious dissenters to inquisitorial judicial proceedings not unlike those
employed in England. In many of these proceedings, the accused persons were not entitled to
remain silent but were often asked to provide evidence of their innocence. Even after the
Revolution, the constitutions of four states offered no protections against self-incrimination. As
Madison drafted the original version of the Fifth Amendment, the lessons of English and colonial
history were firmly in his mind.

The U.S. Supreme Court has interpreted the Self-Incrimination Clause more broadly than many
of the Framers probably would have. MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), illustrates this point. In Miranda the Court held that any statements made by
defendants while in police custody before trial will be inadmissible during prosecution unless the
police first warn the defendants that they have (1) the right to remain silent, (2) the right to
consult an attorney before being questioned by the police, (3) the right to have an attorney present
during police questioning, (4) the right to a court-appointed attorney if they cannot afford one,
and (5) the right to be informed that any statements they do make can and will be used in their
prosecution. Although the Miranda warnings are not provided in the Fifth Amendment's Self-
Incrimination Clause, the Court has ruled that they constitute an essential part of a judicially
created buffer zone that is necessary to protect rights that are specifically set forth in the
Constitution.

In Dickerson v. United States 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed.2d 405 (2000), the U.S.
Supreme Court concluded that the Miranda decision was based on Fifth Amendment principles
and therefore that it could not be over-turned legislatively. Congressional anger at the Miranda
decision had led to the passage in 1968 of a law, 18 U.S.C.A. § 3501, that had restored
voluntariness as the test for admitting confessions in federal court. However, the United States
DEPARTMENT OF JUSTICE, under attorneys general of both major political parties, has refused to
enforce the provision, believing the law to be unconstitutional. The law lay dormant until the
Fourth Circuit Court of Appeals ruled in 1999 that Congress had the constitutional authority to
pass the law. Chief Justice WILLIAM REHNQUIST, a frequent critic of the Miranda decision, joined
the majority in rejecting the Fourth Circuit interpretation. Although members of the Court might
not agree with the reasoning and the rule of Miranda, Rehnquist acknowledged the essential
place that Miranda has in U.S. law and society. He pointed out the importance that the judicial
system places on Stare Decisis, a concept that counsels courts to honor judicial precedents to
ensure stability and predictability in decision-making. A court should only overrule its case
precedents if there is, in Rehnquist's words, "special justification." The Court in Dickerson
concluded there were no special justifications.

Despite this decision the controversy over Miranda has not abated. In 2002 the Supreme Court
took up the matter again when it reviewed Martinez v. Chavez, 270 F.3d 852 (9th Cir. 2001). The
Court must decide whether the Fifth Amendment conveys a constitutional right to be free of
coercive interrogation, or merely a right not to have forced confessions used against them at trial.

Due Process Clause

The Fifth Amendment's Due Process Clause has two aspects: procedural and substantive.
Procedural due process is concerned with the process by which legal proceedings are conducted.
It requires that all persons who will be materially affected by a legal proceeding receive notice of
its time, place, and subject matter so that they will have an adequate opportunity to prepare. It
also requires that legal proceedings be conducted in a fair manner by an impartial judge who will
allow the interested parties to present fully their complaints, grievances, and defenses. The Due
Process Clause governs civil, criminal, and administrative proceedings from the pretrial stage
through final appeal, and proceedings that produce Arbitrary or capricious results will be
overturned as unconstitutional.

Substantive Due Process is concerned with the content of particular laws that are applied during
legal proceedings. Before World War II, the U.S. Supreme Court relied on substantive due
process to overturn legislation that infringed on a variety of property interests, including the right
of employers to determine the wages their employees would be paid and the number of hours
they could work. Since World War II, the Court has relied on substantive due process to protect
privacy and autonomy interests of adults, including the right to use contraception and the right to
have an Abortion.

The line separating procedure from substance is not always clear. For example, procedural due
process guarantees criminal defendants the right to a fair trial, and substantive due process
specifies that 12 jurors must return a unanimous guilty verdict before the death penalty can be
imposed. The concepts of substantive and procedural due process trace back to English law. The
Magna Charta provided, "No free man shall be seized, or imprisoned, or disseised, or outlawed,
or exiled, or injured in any way … except by the lawful judgment of his peers, or by the law of
the land" (art. 39). According to eminent English jurist Sir Edward Coke, law of the land and due
process of law were interchangeable terms that possessed both procedural and substantive
meaning.
The American colonists followed the English tradition of attributing substantive and procedural
qualities to the concepts of due process and the law of the land. Maryland and Massachusetts, for
example, equated the two concepts with colonial Common Law and legislation regardless of their
procedural content. On the other hand, Virginia, Pennsylvania, and Vermont all passed
constitutional provisions identifying the law of the land with specific procedural safeguards,
including the right against self-incrimination. Thus, when the Due Process Clause was submitted
to the state conventions for ratification, it was popularly understood to place procedural
requirements on legal proceedings as well as substantive limitations on the law applied in those
proceedings.

Eminent Domain Clause

When the government takes Personal Property for public use, the law calls it a taking and protects
it under the EMINENT DOMAIN CLAUSE of the Fifth Amendment. The Eminent Domain Clause
permits the government to appropriate private property, both real estate and personal belongings,
for a public purpose so long as the owner receives just compensation, which is normally equated
with the fair market value of the property. The Fifth Amendment attempts to strike a balance
between the needs of the public and the property rights of the owner.

The power of eminent domain was first recognized in England in 1215. Article 39 of the Magna
Charta read,"no free man shall be … disseised [deprived] of his freehold … except by the lawful
judgment of his peers, or by the law of the land." No compensation was awarded to owners
whose property was taken by the government for public use. Instead, English law merely required
that the government obtain ownership of private property through existing legal channels, such as
parliamentary legislation. This principle was followed in England for several centuries, and was
later adopted by the American colonies.

Uncompensated takings of private property by colonial governments generally involved

unimproved land (i.e., land that had not been built on). Colonial governments often appropriated
private land to build roads and bridges in order to develop America's frontiers. During the
American Revolution, the power of eminent domain was used to seize the land of colonists who
were loyal to Great Britain, and to obtain various goods for military consumption. Compensation
was rarely given to individual owners who were deprived of their property by colonial
governments because making personal sacrifices for the common good, including forfeiting
personal property, was considered an essential duty of every colonist.

Not everyone in the colonies believed that personal property interests should always be sacrificed
for the greater good of society. Many colonists expressed distress over legislatures that were
abusing their power of eminent domain. New York, for example, regularly failed to recognize
title to real estate in its colony that was held by residents of Vermont. Other colonies also
discriminated in favor of their own residents, and against persons whose patriotism was
questionable during the Revolution. It was in this context that the Eminent Domain Clause of the
Fifth Amendment was drafted.

During the twentieth century, the U.S. Supreme Court has enlarged the protection against
uncompensated takings of private property by state and federal governments. The Eminent
Domain Clause has been interpreted to protect not only owners whose property is physically
taken by the government, but also owners whose property value is diminished as a result of
government activity. Thus, compensable takings under the Fifth Amendment result from Zoning
ordinances that deny property owners an economically viable use of their land (Agins v. City of
Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 [1980]), environmental regulations that
require the government to occupy an owner's land in order to monitor groundwater wells
(Hendler v. United States, 952 F.2d 1364 [Fed. Cir. 1991], land-use regulations that curtail
mining operations (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed.
322[1992]), and government-owned airports that lower property values in adjacent
neighborhoods (United States v. Causby, 328 U.S. 256, 66S. Ct. 1062, 90 L. Ed. 1206 [1946]).

The U.S. Supreme Court, in Palazzolo v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448, 150L.
Ed.2d 592 (2001), declared that property owners may file lawsuits without filing additional
permit applications. Most importantly, the Court overturned a ruling that barred property owners
from filing suit if they took possession of the property after the environmental regulations had
been enacted. It made no sense to allow a state to avoid suit simply because of a transfer of legal
title to the property. Thus, the state "would be allowed, in effect, to put an expiration date on the
Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge
unreasonable limitations on the use and value of land."

Grand Jury Clause

A grand jury is a group of citizens who are summoned to criminal court by the sheriff to consider
accusations and complaints leveled against persons who are suspected of engaging in criminal
conduct. Grand juries do not determine guilt or innocence. Instead, they determine whether
Probable Cause exists to believe that the accused has committed a crime, and they return an
indictment (i.e., a formal charge against the accused) if they do find probable cause. In common
law, a grand jury consisted of not fewer than 12, and not more than 23, men. Today, grand juries
impaneled before a federal district court must consist of not fewer than 16, and not more than 23,
men and women.

Potential jurors are usually drawn from lists of qualified residents. Persons who are below the age
of majority, who have been convicted of certain crimes, who or are biased toward the accused are
ineligible to serve as grand jurors.

The grand jury originated in England during the reign of HENRY II (1154–89). In 1166, a statute
called the Assize of Clarendon was enacted. The assize provided that no person could be
prosecuted unless four men from each township and 12 men from each hundred appeared before
the county court to accuse the individual of a specific crime. This compulsory process, called a
presenting jury, foreshadowed the grand jury as an accusatory body that identified individuals for
prosecution but made no finding as to guilt or innocence.

As the grand jury system developed in England and colonial America, it protected innocent
persons who faced unfounded charges initiated by political, religious, and personal adversaries.
The impartiality of grand juries is essential. This is a significant reason why the proceedings are
convened in secrecy; otherwise, public scrutiny and similar prejudicial influences could affect
their decision-making process. Although grand juries must be impartial, accused persons have no
constitutional right to present evidence on their behalf or to cross-examine witnesses, and
Hearsay evidence may be introduced against them.

Further readings

Helmholz, R.H. 1983. "The Early History of the Grand Jury and the Canon Law." University of
Chicago Law Review 50 (spring).

Hickok, Eugene W., Jr., ed. 1991. The Bill of Rights: Original Meaning and Current
Understanding. Charlottesville: Univ. Press of Virginia.

Mermelstein, Mark, and Joel M. Athey. 2002. "In the Fifth Dimension: Problems Faced by Trial
Lawyers When a Witness Invokes the Fifth Amendment." Los Angeles Lawyer 25 (October).

Roxas, Angela. 2002. "Questions Unanswered: the Fifth Amendment and Innocent Witnesses."
Journal of Criminal Law and Criminology 93 (fall).

Treanor, William M. 1995. "The Original Understanding of the Takings Clause and the Political
Process." Columbia Law Review 95 (May).

Cross-references