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What is the Fifth Amendment?

The Fifth Amendment of the U.S. Constitution reads:

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 offense 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 protects you in any legal proceeding from saying anything that may be used to incriminate you in a criminal prosecution. While the Fifth Amendment is notoriously known for its right to silence, the Fifth Amendment also guarantees you several other rights such as: the right to a grand jury, the right to not be tried for the same crime twice, the right to due process and the right to fair compensation for private property that is taken for public use. This article will explore these rights in a little more detail.


Grand Jury

A grand jury is a made up of a group of peers who determine whether a suspect should be formally charged (indicted) with a crime. This is different than a petit jury, which is designed to determine guilt or innocence. Grand juries may be composed of a group of up to 23 people and do not need a unanimous agreement to indict a defendant.

During a grand jury proceeding, testimony is heard from the prosecution’s witnesses and a statement about the crime is made by the prosecutor. The suspect may only speak in response to a cross-examination by the prosecutor. Based on the testimony heard, the grand jury decides if a suspect should be formally charged with a crime and subject to a criminal trial.

Grand jury proceedings are not open to the public and the right to indictment by a grand jury is not applicable to the states. In other words, individual states may decide whether or not to use grand jury hearings in criminal cases. Most states have replaced grand jury hearings with preliminary hearings that determine the extent of the crime and what evidence will be submitted for trial, in addition to other procedural matters. If it is determined that there is no probable cause in a preliminary hearing, prosecution generally ceases.

Double Jeopardy

The Fifth Amendment of the Constitution guarantees that you will not be tried for the same crime twice. That means, if you are found innocent of a crime, you may not be tried for that same crime twice nor may you be punished twice for the same offense. While it is true that you may not be tried for the same crime twice, it is important to understand that the double jeopardy clause does not apply in all circumstances. For instance, if a jury decides that a defendant is guilty and the judge overrides their decision, thus acquitting the defendant, the prosecution may appeal the decision. Also, if the case is deemed a mistrial, it can generally be retried. In addition, double jeopardy does not protect individuals from being tried by several different sovereignties. State and federal courts are considered separate sovereignties in the U.S.; therefore, if you may be tried for the same offense in federal and state court.

A most recent example of an individual being tried at both the state and federal level is the Michael Vick case. Vick plead guilty to a dogfighting conspiracy charge in federal court and has also been indicted at the state level. This is not double-jeopardy as the state has its own laws and penalties for animal cruelty and has the right to prosecute Vick separately from the federal charges that he faces.


Under the Fifth Amendment, you are also guaranteed the right to not incriminate yourself in criminal cases. In other words, this amendment protects your right to remain silent. While this provision in the Fifth Amendment was initially designed to prevent the government from coercing criminal confessions from people, it has been expanded to include any government request for self-incriminating speech. Self-incriminating speech is any statement you provide that may lead to your being charged with a crime. Refusing to answer a question under the auspices of the Fifth Amendment is not punishable and may not be used infer guilt in jury trial. While this provision protects you from self-incriminating testimony, it is important to note that it does not protect you from all legal requests for information. For example, the Fifth Amendment does not give you the right to refuse to give a police officer your name. A criminal defense lawyer should be able to guide you through legal interviews and advise you what questions you should and should not answer.

Due Process

Due process refers to your right to be tried fairly in a manner that respects all of your legal rights. You have the right to defend yourself from criminal charges and the right to plead your case before a jury of your peers. Any procedure that takes away your liberty unfairly or affords you with lesser treatment than other individuals is a denial of due process. Since due process is a protection of your legal rights, it is generally a good idea to hire a criminal defense lawyer who is familiar with the complexities of the law to make sure that you are, in fact, being granted due process.

Fair Compensation

The final right guaranteed you by the Fifth Amendment is the right to be justly compensated for any private property that is taken for public use. In the United States, the federal government and each state is considered an eminent domain. That means that the federal government and individual states have the authority to seize private property for public use without the consent of the property owner. As such, the Fifth Amendment requires that when the government uses its power of eminent domain, the government must fairly compensate property owners. It is important to note that this provision does not mean that private property must be used by the public. Rather, the property must be used in a way that benefits the public. If you need legal representation or advice regarding fair compensation, contact a civil rights attorney in your state.

The Fifth Amendment affords you many rights that are especially important if you face criminal charges. An experienced criminal defense lawyer in your state should be able to more fully explain the rights guaranteed you by the Fifth Amendment and others that you may not be aware of. Seeking legal advice from a competent lawyer is usually a good idea if you are a suspect in a criminal case.

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