What’s the big deal about the Fifth Amendment?

David replies:

The Fifth Amendment 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.”

That’s one hell of a sentence! The part that you usually see on TV is: “nor shall be compelled, in any criminal case, to be a witness against himself.” This basically means that you have the right to avoid self-incrimination. You cannot be forced to testify at your own criminal trial, and the prosecution is not allowed to tell the jury that your lack of testimony implies anything about your guilt though, of course, the jury members may well come to that conclusion on their own. Also, if you are compelled to testify at somebody else’s trial, you don’t have to answer questions that might incriminate you in wrongdoing (the famous, “I plead the fifth” statement).

Occasionally in a criminal trial some low-level bad guy will be granted immunity from prosecution in order to get him to testify against Mr. Big. Once that happens you can no longer plead the fifth, but prosecutors can’t use your testimony, or any evidence they might develop deriving from your testimony, to convict you of a crime. Mob hit men have been known to take advantage of a grant of immunity to confess on the witness stand to a series of murders–crimes for which thereafter they can never be prosecuted. To avoid giving these creeps an unnecessary pass, grants of immunity must be narrowly drawn, and prosecutors must be careful in questioning the bad guys on the stand, lest they ‘fess up to too much.

Another part of the Fifth Amendment that you’ll occasionally hear about is the double-jeopardy provision: “nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb.” So if you’re put on trial for a crime and found not guilty, the prosecution can’t later come back and say, “Hey, we found more evidence, so we’re gonna prosecute you again.” That said, the courts have had some strange (at least to me as a non-lawyer) interpretations of this which allowed such things as the Rodney King beating double trial. First the cops were prosecuted for beating King, and were found not guilty. Then the feds stepped in as a separate entity and prosecuted those same cops for violating King’s civil rights (by beating him) for which they were found guilty. So they were not guilty of beating him, but guilty of violating his civil rights while beating him. Huh? Don’t get me wrong, I understand the purpose of this legal fiction–it enables the federal government to step in to correct what it considers miscarriages of justice in the state courts, as often happened during the civil rights struggle. But it does seem like a way to dodge around the Fifth Amendment. Note that this provision only applies to “jeopardy of life or limb,” not money. So civil trials can follow criminal ones, like in the O.J. case.

Those are the two parts that you were most likely to have heard about in the media or on TV shows. The others are certainly important, but perhaps not as pertinent to your question.

David

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