The Fifth Amendment – Know Your Rights
The Fifth Amendment of the U.S. Constitution provides several rights that offer protection for people involved in a criminal investigation. It’s part of our collection of basic rights and often referred to in media and popular culture. Despite this, there is a great deal of misunderstanding about the Fifth Amendment.
What Does the 5th 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. 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. This 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.
Learn Your Fifth Amendment Rights
Do you have questions about your Fifth Amendment rights? Do you want to speak to someone about charges against you? Contact Gary Tabakman at (713) 429-1624.
FAQs
The Fifth Amendment to the Constitution provides that private property shall not be taken for public use without just compensation.
What is the 5th Amendment private property? ›
The Fifth Amendment to the Constitution provides that private property shall not be taken for public use without just compensation.
What is violation of someone's 5th Amendment rights? ›
Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.
What does the Fifth Amendment mean in business law? ›
A right against forced self-incrimination. A guarantee that all criminal defendants have a fair trial, and. A guarantee that the government cannot seize private property without making a due compensation at the market value of the property.
Does the Fifth Amendment apply to companies? ›
One notable exception, however, is the Fifth Amendment's prohibition on compulsory self- incrimination. back to the start of the twentieth century stating—but never directly holding— that corporations are not protected by the self-incrimination clause.
Is there a constitutional right to privately own property? ›
The U.S. Constitution provides protection for private property owners when the government intervenes through official regulations restricting an owner's rights in land or housing.
What do private property rights allow? ›
Property rights give the owner or right holder the ability to do with the property what they choose. That includes holding on to it, selling or renting it out for profit, or transferring it to another party.
What are the four rights guaranteed to an accused person by the 5th Amendment? ›
The Fifth Amendment breaks down into five rights or protections: the right to a jury trial when you're charged with a crime, protection against double jeopardy, protection against self-incrimination, the right to a fair trial, and protection against the taking of property by the government without compensation.
What is an example of the 5th Amendment being violated? ›
For instance, in Gardner v. Broderick (1968), the New York City Police Department was held to have violated the Fifth Amendment rights of a police officer when it fired him after he refused to waive the Privilege and testify before a grand jury that was investigating police corruption.
What are the consequences of pleading the Fifth Amendment? ›
However, invoking your Fifth Amendment rights can have severe consequences. For example, in a civil case, a judge or jury can infer that someone's silence implies they were liable. Likewise, someone who invokes their Fifth Amendment rights during questioning about a corporate crime could be fired from their job.
By Micah Schwartzbach, Attorney · UC Law San Francisco. The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments." Virtually every state constitution also has its own prohibition against such penalties.
When can you not plead the fifth? ›
The Fifth Amendment protection against self-incrimination does not extend to DNA or fingerprints. The Supreme Court has held the privilege extends only to communicative evidence. DNA and fingerprint evidence are considered non-testimonial. Therefore, you cannot plead the fifth when police request to fingerprint you.
What does it mean to incriminate yourself? ›
Self-incrimination is the intentional or unintentional act of providing information that will suggest your involvement in a crime, or expose you to criminal prosecution. The Fifth Amendment provides protection to individuals from being compelled to incriminate themselves.
Does an LLC have 5th amendment rights? ›
In the recent Ninth Circuit case In re Twelve Grand Jury Subpoenas, the court unequivocally held that the prohibition against individuals claiming a Fifth Amendment privilege to avoid producing corporate records they possess in a representative capacity extends to solely-owned corporations or LLCs.
Who is exempt from the 5th amendment? ›
The Grand Jury Clause of the Fifth Amendment does not protect those serving in the armed forces, whether during wartime or peacetime. Members of the state militia called up to serve with federal forces are not protected under the clause either.
Who does the 5th amendment not apply to? ›
As noted above, the Fifth Amendment Privilege applies only to self-incriminating testimony relating to a crime. It does not apply to civil or family matters. You cannot assert this protection to avoid testifying that you breached a contract or that you left your spouse, for example, as these are not crimes.
What are examples of right to private property? ›
In addition to homes, boats, and stores, intangible property such as trademarks, copyrights, and other intellectual properties are examples of private property.
Do you still have freedom of speech on private property? ›
Private property owners can set rules for speech on their property. The government may not restrict your speech if it is taking place on your own property or with the consent of the property owner. Counterprotesters also have free speech rights.
Does the 5th Amendment apply to private citizens? ›
The court said: "The Fifth Amendment commands that property be not taken without making just compensation. Valid contracts are property, whether the obligor be a private individual, a municipality, a state, or the United States.
Why is private property a right? ›
America's Founders understood clearly that private property is the foundation not only of prosperity but of freedom itself. Thus, through the common law, state law, and the Constitution, they protected property rights—the rights of people to freely acquire, use, and dispose of property.
The Fifth Amendment – Know Your Rights