3.11. The Fifth Amendment

Kate McLean

Fifth Amendment Protections

The Fifth Amendment is often referred to the “due process” amendment, in that it contains multiple clauses that aim to preserve criminal defendants against unwarranted, overzealous, or illegal prosecution by the state. “The Fifth” is probably most known for its protection against self-incrimination (having to disclose information that could ultimately harm you), stating that no person “shall be compelled in a criminal case to be a witness against himself.” Defendants have the right to not testify at trial and the right to remain silent during a custodial interrogation (see, Miranda v. Arizona, 384 U.S. 436 (1966)). The Fifth Amendment also provides for a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law, and prohibits taking private property for public use (a civil action).

The Court has incorporated the double jeopardy provision through the Fourteenth Amendment, making states also prohibited from subjecting a person to double jeopardy. However, it has not held that states must provide a grand jury review. The Fifth Amendment’s grand jury provision is one of two clauses of the Bill of Rights that has not been incorporated to the states – but most states do use the grand jury at least for some types of cases. (For example, in Pennsylvania, grand juries are used in felony cases where witness intimidation is suspected.) The Fifth Amendment also entitles citizens prosecuted by the federal government to the due process of law. This is discussed more fully as a Fourteenth Amendment right in subsequent pages.

Landmark Case: Miranda v. Arizona

In 1963, Phoenix resident Ernesto Miranda was arrested on suspicion of rape. Upon being taken to the station house, he was interrogated for two hours before confessing to the rape. At trial, his lawyer characterized his confession as coerced, given that Miranda was not advised of his right to have a lawyer present, nor of his right to decline self-incriminating testimony. While the trial court convicted and sentenced Miranda to up to 30 years in prison, his conviction was nullified by the Supreme Court, who found that Miranda’s Fifth Amendment rights had been violated. The majority opinion, penned by Chief Justice Earl Warren, may clearly be seen as giving rise to the “Miranda rights” that we all take for granted today:

“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”

While Miranda v. Arizona is now regarded as a landmark case that handed essential protections to citizens, the court’s decision was hugely controversial at the time – seen as empowering potentially dangerous criminals; in fact, four out of nine Supreme Court justices dissented. Interestingly, Miranda was re-convicted of the same rape in 1967, ultimately serving five year of prison time.

Want to learn more about Miranda? Check out a great podcast on the case here.

Read up on other landmark cases concerning the Fifth Amendment here: Frazier v. Cupp, Berghuis v. Thompkins


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Introduction to the U.S. Criminal Justice System Copyright © 2019 by Kate McLean is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License, except where otherwise noted.

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