Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution enumerates several constitutional rights and limits governmental powers with respect to criminal procedure. It was ratified, along with nine other amendments, in 1791 as part of the Bill of Rights.
The Supreme Court has extended most, but not all, rights of the Fifth Amendment to the state and local levels. This means that neither the federal, state, nor local governments may deny people most rights protected by the Fifth Amendment. The Court furthered most protections of this amendment through the Due Process Clause of the Fourteenth Amendment.
One provision of the Fifth Amendment requires that most felonies be tried only upon indictment by a grand jury, which the Court ruled does not apply to the state level. Another provision, the Double Jeopardy Clause, provides the right of defendants to be tried only once in federal court for the same offense. The Self-Incrimination clause provides various protections against self-incrimination, including the right of an individual not to serve as a witness in a criminal case in which he or she is a defendant. "Pleading the Fifth" is a colloquial term often used to invoke the Self-Incrimination Clause when witnesses decline to answer questions where the answers might incriminate them. In the 1966 landmark case Miranda v. Arizona, the Supreme Court held that the Self-Incrimination Clause requires the police to issue a Miranda warning to criminal suspects interrogated while in police custody. The Fifth Amendment also contains the Takings Clause, which allows the federal government to take private property only for public use and only if it provides "just compensation".
Like the Fourteenth Amendment, the Fifth Amendment includes a due process clause stating that no person shall "be deprived of life, liberty, or property, without due process of law". The Fifth Amendment's Due Process Clause applies to the federal government, while the Fourteenth Amendment's Due Process Clause applies to state governments. The Supreme Court has interpreted the Fifth Amendment's Due Process Clause to provide two main protections: procedural due process, which requires government officials to follow fair procedures before depriving a person of life, liberty, or property, and substantive due process, which protects certain fundamental rights from government interference. The Supreme Court has also held that the Due Process Clause contains a prohibition against vague laws and an implied equal protection requirement similar to the Fourteenth Amendment's Equal Protection Clause.
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The amendment as ratified by the states:Background before adoption
On June 8, 1789, Congressman James Madison introduced several proposed constitutional amendments during a speech to the House of Representatives. His draft language that later became the Fifth Amendment was as follows:No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without just compensation....Except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger... in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary...
This draft was edited by Congress; all the material before the first ellipsis was placed at the end, and some of the wording was modified. After approval by Congress, the amendment was ratified by the states on December 15, 1791, as part of the Bill of Rights. Every one of the five clauses in the final amendment appeared in Madison's draft, and in their final order those clauses are: the Grand Jury Clause ; the Double Jeopardy Clause; the Self Incrimination Clause; the Due Process Clause; and, the Takings Clause.
Grand jury
The Grand Jury Clause limits governmental powers focusing on criminal procedures, because, as stated by the U.S. Supreme Court in United States v. Cotton, "the Fifth Amendment grand jury right serves a vital function in providing for a body of citizens that acts as a check on prosecutorial power. No doubt that is true. See, e. g., 3 Story, Commentaries on the Constitution § 1779, reprinted in 5 The Founders' Constitution 295. But that is surely no less true of the Sixth Amendment right to a petit jury, which, unlike the grand jury, must find guilt beyond a reasonable doubt." The grand jury is a pre-constitutional common law institution. The Supreme Court ruled against incorporating this right in Hurtado v. People of California, 110 U.S. 516. Most states have an alternative civil process. "Although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelming majority of the States." Branzburg v. Hayes 1972. Grand juries, which return indictments in many criminal cases, are composed of a jury of peers and operate in closed deliberation proceedings; they are given specific instructions regarding the law by the judge. Many constitutional restrictions that apply in court or in other situations do not apply during grand jury proceedings. For example, the exclusionary rule does not apply to certain evidence presented to a grand jury; the exclusionary rule states that evidence obtained in violation of the Fourth, Fifth or Sixth amendments cannot be introduced in court. Also, an individual does not have the right to have an attorney present in the grand jury room during hearings. An individual would have such a right during questioning by the police while in custody, but an individual testifying before a grand jury is free to leave the grand jury room to consult with his attorney outside the room before returning to answer a question.Currently, federal law permits the trial of misdemeanors without indictments. Additionally, in trials of non-capital felonies, the prosecution may proceed without indictments if the defendants waive their Fifth Amendment right.
Grand jury indictments may be amended by the prosecution only in limited circumstances. In Ex Parte Bain,, the Supreme Court held that the indictment could not be changed at all by the prosecution. United States v. Miller, partly reversed Ex parte Bain; now, an indictment's scope may be narrowed by the prosecution. Thus, lesser included charges may be dropped, but new charges may not be added.
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. In O'Callahan v. Parker,, the Supreme Court held that only charges relating to service may be brought against members of the militia without indictments. As a decision, O'Callahan, however, lived for a limited duration and was more a reflection of Justice William O. Douglas's distrust of presidential power and anger at the Vietnam Conflict. O'Callahan was overturned in 1987, when the Court held that members of the militia in actual service may be tried for any offense without indictments.
The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment. This means the grand jury requirement applies only to felony charges in the federal court system. While many states do employ grand juries, no defendant has a Fifth Amendment right to a grand jury for criminal charges in state court. States are free to abolish grand juries, and many have replaced them with preliminary hearing.
Infamous crime
Whether a crime is "infamous", for purposes of the Grand Jury Clause, is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed; however, crimes punishable by death must be tried upon indictments. The historical origin of "infamous crime" comes from the infamia, a punishment under Roman law by which a citizen was deprived of his citizenship. In United States v. Moreland,, the Supreme Court held that incarceration in a prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime. In Mackin v. United States,, the Supreme Court judged that "'Infamous crimes' are thus, in the most explicit words, defined to be those 'punishable by imprisonment in the penitentiary'", while it later in Green v. United States stated that "imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year." Therefore, an infamous crime is one that is punished by imprisonment for over one year. Susan Brown, a former defense attorney and Professor of Law at the University of Dayton School of Law, concluded: "Since this is essentially the definition of a felony, infamous crimes translate as felonies."Double jeopardy
The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment. Jeopardy applies when the jury is empaneled in a jury trial, when the first witness is sworn in during a bench trial, or when a plea is rendered.Prosecution after acquittal
The government is not permitted to appeal or try again after the entry of an acquittal, whether a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency, or an "implied acquittal" via conviction of a lesser included offense. In addition, the government is barred by collateral estoppel from re-litigating against the same defense, a fact necessarily found by the jury in a prior acquittal, even if the jury hung on other counts.This principle does not prevent the government from appealing a pre-trial motion to dismiss or other non-merits dismissal, or a directed verdict after a jury conviction, nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute. Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency, including habeas, or "thirteenth juror" appellate reversals notwithstanding sufficiency on the principle that jeopardy has not "terminated". There is also an exception for judicial bribery in a bench trial.