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The 5th Amendment is possibly one of the most quoted constitutional amendments in movies as it includes the ‘right to plead the 5th’!
What is the 5th Amendment?
The 5th Amendment is part of the Bill of Rights and is about criminal proceedings. It is sometimes also called the self-incrimination amendment.
In summary, the 5th amendment includes:
- Allowing people to be indicted by a grand jury before going to trial
- Protection against being made to answer more than once for the same crime (Double Jeopardy)
- Allowing people to keep from self-incriminating
- The right to fair treatment by the court system
Let’s look at each of these 5th Amendment rights in more depth and how they affect the US Constitution.
Trial By Grand Jury
The first line of the Amendment mentions that the courts can only try people for “infamous” crimes if a grand jury indicts them.
What’s a grand jury?
A grand jury is different from the trial jury you’d see in a courtroom TV show because it doesn’t deliver a verdict. It only delivers indictments.
What does a grand jury do?
The grand jury will look at all the evidence of a case (including some that might not be admissible to a trial jury, such as illegally-obtained evidence) and decide whether or not it’s sufficient to indict (indictment is simply a word for “legally accuse”) the person of the supposed crime.
What crimes does the 5th Amendment apply to?
The text of the Fifth Amendment technically only applies to federal felonies.
While all states have laws that permit grand juries, only about half use grand juries. It also only applies to “infamous” or “capital crimes.” This means any crime with a penalty of more than one year of incarceration, a felony, or a crime that permits the death penalty.
Protection Against Double Jeopardy
The Fifth Amendment also prevents people from being made to answer for the same crime twice (referred to as “double jeopardy”).
This means that a person can’t be put on trial twice or sent to prison twice for the same offense.
This does not apply in the case of a mistrial or if the defendant requests an appeal. A person may also be tried once on the state level and again on a federal level.
The 5th Amendment is sometimes also called the Double Jeopardy Amendment.
What does the right to due process mean as part of the 5th amendment?
The Fifth Amendment states that a person cannot be “deprived of life, liberty, or property without due process of law”.
“Due process” means that trials will be conducted fairly and within the bounds of the law. For example, anyone accused of a crime can expect to go through a set procedure and therefore has a right to due process.
Again, this provision technically only applies to federal courts, but the US Supreme Court through the Fourteenth Amendment has expanded the guarantee of due process to cover all the states.
This is known as the Due Process Clause.
Protection Against Self-Incrimination and to Plead the 5th
Most people are aware of the expression
“I plead the Fifth.”
When a person suspected of a crime says this, they’re asserting their right to avoid self-incrimination as guaranteed under the Fifth Amendment. It is also called invoking the 5th Amendment.
Basically, a person could say something that could be used as evidence against them in a trial. Therefore they don’t have to respond to a question if they don’t want to because what they say might be used against them. They are invoking their 5th Amendment rights of protection.
The famous “Miranda warning” issued by police also finds its roots in the Fifth Amendment – “you have the right to remain silent” directly references the section on self-incrimination.
Right to Just Compensation
A government can take private land for public use if it so desires. This ability is called eminent domain. For example, a government could seize part of someone’s estate and use it to construct a section of a new highway.
The Fifth Amendment puts a limit on eminent domain. If the government does this, they have to pay the owner.
The value paid is called fair market value – essentially, the government must pay what the property’s value would be if bought by an individual on the open market.
What rights does the 5th Amendment protect?
In summary, the following are the rights that the 5th amendment protects:
- Right to Just Compensation
- Right to Due Process
- Right of Protection Against Double Jeopardy
- Right to plead the 5th for Protection against Self-Incrimination
- Right to a Trial by Grand Jury
Dates of Proposal and Ratification for 5th Amendment
As part of the Bill of Rights, the 5th Amendment was proposed to the legislatures of the several States by the First Congress on September 25, 1789. It was ratified by the following States, and the notifications of ratification by the Governors thereof were successively communicated by the President to Congress:
New Jersey, November 20, 1789
Maryland, December 19, 1789
North Carolina, December 22, 1789
South Carolina, January 19, 1790
New Hampshire, January 25, 1790
Delaware, January 28, 1790
New York, February 24, 1790
Pennsylvania, March 10, 1790
Rhode Island, June 7, 1790
Vermont, November 3, 1791
Virginia, December 15, 1791
Ratification was completed on December 15, 1791.
The amendment was subsequently ratified by the legislatures of:
Massachusetts, March 2, 1939
Georgia, March 18, 1939
Connecticut, April 19, 1939