The Fifth Amendment's Criminal Prosecution Requirements

The Fifth Amendment to the United States Constitution is also found in the Bill of Rights and makes multiple requirements of the government in criminal prosecutions. The Fifth Amendment provides:

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 Fifth Amendment has the almost the largest number of rights that apply to criminal cases, second only to the Sixth Amendment, which we’ll discuss next week.

The Fifth Amendment requires that, in (most) federal prosecutions, a defendant must be indicted by a grand jury. This means that a group of people from the jurisdiction of the Court must meet and must hear the allegations brought against the defendant and decide that there is sufficient evidence to move forward with a prosecution before the defendant can be officially charged with a crime. This applies to all capital “or otherwise infamous” crimes which, in practice, means if you are being prosecuted in federal court, you have been indicted by a grand jury.

The Fifth Amendment also prohibits a defendant being tried for the same crime more than once: double jeopardy. This requirement means that once a person has been acquitted of a crime, he cannot be prosecuted for the same crime in the same jurisdiction. There are some limitations to this: if a defendant has been tried, but that trial ended in a mis-trial, or if the offense is a crime under both state and federal law, in which case the defendant can be prosecuted in both state and federal court.

The Fifth Amendment’s third prohibition is the right against self-incrimination. This right is depicted in every police procedural on television when the police advise the arrested person that she “has the right to remain silent and not answer any questions.” This prohibition also means that a criminal defendant cannot, unlike other witnesses, be compelled to testify when he is on trial. When a person “pleads the Fifth,” this is the section of the Amendment to which she is referring.

Finally, the Fifth Amendment establishes that a criminal defendant has a right to “due process.” Due Process is a very broad term that encompasses a multitude of other rights, which basically boil down to requirements that do not allow the government to put the defendant in jail and throw away the key without a trial.

Next week: the Sixth Amendment and speedy trials, impartial juries, and the confrontation clause, among others!