Constitution Class: Fifth Amendment

Along with the 1st and 2nd, the 5th is probably one of our most famous amendments. It gives you the legal right not to narc on yourself, but it’s had a broader impact than you might think.

Here’s what it says:

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.

Fifth Amendment to the US Constitution

For the Bill of Rights, that’s actually super-wordy.

Most of this amendment, like the rest of the Bill of Rights, was a response to the British government at the time, which had gotten pretty famous for doing all the things this amendment protects against.

The first bit simply means that you can’t be charged with a crime until a grand jury indicts you, unless you’re in the military, in which case military law applies (which in the US is codified in the Uniform Code of Military Justice, or UCMJ). Grand juries are a common-law institution that precedes the US Constitution; their role is to examine the evidence and arguments of a prosecutor and decide if the prosecutor seems likely to succeed at trial. The burden of evidence for a grand jury is substantially below that of an actual trial, since the grand jury isn’t finding guilt, but merely allowing a trial to proceed. The “infamous” bit essentially requires a grand jury whenever a certain severity level of punishment is likely or being sought. That is, if the outcome of a trial is a small fine and community service, a grand jury isn’t needed; if jail time is on the table, then a grand jury is needed. Basically, the grand jury decides if it’s likely that a crime occurred, with the subsequent trial determining if the accused did it or not.

The second clause is called our “Double Jeopardy” clause, and it has nothing to do with the game show: it simply means that you can’t stand trial for the same crime twice. Now, this doesn’t count appeals; if you are found guilty, then appeal, are found guilt again, and appeal again, all of that is considered one lengthy, ongoing trial for the same crime(s). But if you’re found not guilty, and there are no further appeals by the prosecutor, then they can’t later charge you for the same crime and try again—even if they’ve found new evidence. Notably, the government is often prevented by law from appealing acquittals, meaning that if the government loses, they can’t appeal. (As an aside, in the US all criminal cases are always presented by the government, the idea being that crimes are “against the People,” and that the government, as the People’s agent, prosecutes the crimes.)

The third clause means you can’t be required to testify against yourself, and that’s where you see people “pleading the Fifth” on TV. It simply means you can’t be required to give testimony that would prove you guilty. This clause had massively wide-ranging implications: it’s the basis of attorney-client privilege, priest-parishioner privilege, and doctor-patient privilege. It’s why courts aren’t sure if you can be compelled to unlock your cell phone for the cops. It’s why your spouse can’t be required to testify against you. Basically, you don’t have to help the prosecutor. Now, there are some exceptions. For example, you can be required to unlock a safe that contains evidence against you, which is why the cell phone example has gotten rulings in both directions so far. This clause also takes torture off the table, incidentally; testimony gathered under duress is considered inadmissible in court because of this amendment. This clause is also ultimately why cops have to “Mirandize” you, advising you that anything you say can and will be used against you and that you have a legal right to shut your trap and not talk to them.

The fourth clause (we packed a lot into this baby) means you can’t be deprived of your life, your liberty, or your property without a trial.

The fifth clause limits eminent domain, which is the process of seizing private property for public use, requiring the government to pay a fair market price for your property. This often results in scads of lawsuits, because everyone wants to argue about “fair market value,” and it’s one reason why governments are often reluctant to exercise eminent domain. But they still do it. For example, if they need to build a new highway, the government often has to use eminent domain to acquire the needed land.

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