The Fifth Amendment

The Fifth Amendment provides several rights that protect people from excessive use of government power in a criminal investigation.

Amendment V

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.

The Grand Jury Clause requires the government to obtain an indictment from a grand jury in situations involving serious felonies (major crimes) before charging a person. A federal grand jury is a group of 16 to 23 community members drawn from the local area; they meet to hear evidence in pending criminal investigations. Before accused people can be formally charged (indicted) with a serious federal crime, a grand jury must be convinced there’s enough evidence to proceed. A grand jury is separate from the courts and doesn’t decide guilt or innocence. They only decide whether there is a reasonable basis to believe the accused person committed a crime.

The Fifth Amendment might be most known for its protections against self-incrimination, which means people have the legal right to refuse to answer questions or speak to anyone involved in a criminal investigation if they believe what they say could be used against them to bring criminal charges. The amendment states that nobody “shall be compelled in any criminal case to be a witness against himself.” This prevents the government from forcing people to provide evidence or statements that could be used to incriminate them in a criminal investigation. It is sometimes referred to as “pleading the Fifth” or “taking the Fifth.”

The Self-Incrimination Clause also protects people when under arrest. Many Americans are familiar with the well-known Miranda warning: When suspects are taken into custody, an officer typically advises them that they have “the right to remain silent.”

The Fifth Amendment also provides due process rights, which means the federal government can’t take away a person’s life, liberty, or property without first providing adequate process: legally required procedures. Those procedures are designed to ensure the government has a valid, lawful reason (for example, proving a crime in a criminal case) before it acts. Notably, the Due Process Clause only applies to the federal government and its actors.

The Double Jeopardy Clause prevents the government from prosecuting a person more than once for the same crime. This applies only to criminal cases and does not prevent defendants from facing civil lawsuits or other offenses involving the same incident.