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Home Page The Fifth Amendment, Part I - Opinion
Date: May 1998
Source: Family Research Council, Washington Watch, Freedom Forum

"The Fifth Amendment - Part I", by David M. Wagner, Esq.

“I plead the Fifth!” Who hasn't heard this dramatic declaration of a citizen's reliance on a constitutional right? Of course, “taking the Fifth” — refusing to answer a question from an officer of the court, policeman, or congressional investigator on the grounds the answer might implicate the answerer in criminal wrongdoing — refers to the part of the amendment that guarantees that no American “shall be compelled in any case to be a witness against himself.”

Actually, this is only one part of a very rich chunk of constitutional text. The Fifth and Sixth Amendments, when taken together, represent a mini-Bill of Rights for criminal suspects and defendants, designed to make sure that various abusive practices from both the English and continental European legal systems would not occur in criminal trials conducted by the U.S. Federal government. In the twentieth century, most of the content of these amendments has been applied to state trials as well, through judicial interpretation of the Fourteenth Amendment. Conveniently, the Fifth can be broken down into five basic guarantees:

1) A grand jury process prior to trial in all capital “or otherwise infamous” cases. The charges and evidence have to pass muster with a grand jury before the government can even bring the defendant to trial. When a grand jury agrees that there is enough evidence to proceed to trial, the result is called an “indictment.” If the grand jury refuses to indict, the defendant walks. (This has not been applied to the states.)

2) No double jeopardy: A defendant cannot “be twice put in jeopardy of life or limb” ... “for the same offence.”

3) The right to be protected from self-incrimination.

4) “Due process of law.” (There has been much litigation about this.)

5) Compensation for private property that is “taken for public use” (the one part of the Fifth Amendment that is not confined to criminal cases).

Tying all of these rights together is a concern about reining in government power. The grand jury process requires that all federal criminal cases pass an initial filter before getting to court. Unfortunately, it is commonly said that a competent federal prosecutor can “indict a ham sandwich;” if true, this means that the grand jury process has ceased to be the reliable filter the Founding Fathers meant it to be.

The double jeopardy clause prevents the government from trying the same person over and over again in an attempt to get the desired guilty verdict; it does not, however, preclude both state and federal trials for the same crime, or civil lawsuits and criminal prosecution for the same act, or re-trial in the case of a hung jury (where a jury cannot come to agreement as to guilt or innocence) or a mistrial.

The due process clause is a safeguard which precludes the imposition of Wild West style justice where the cattle rustler is nabbed and hanged from the nearest tree without a trial. Justice, under our system requires, in most criminal cases, pre-trial hearings, trial before a jury of peers, and opportunity for appeal — a process which, overall, may take years.

The just compensation clause prevents the government from harassing citizens by taking their property. While the Supreme Court has recognized broad loopholes in this clause this century, more recently, it has begun enforcing the just compensation clause more strictly.

Next month we will look more closely at the due process clause including the right against self-incrimination.


Link to Source (i.e., full text shown above) - Family Research Council (WWW page)

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