March 21, 2012 – Essay #23 – Amendment V – Guest Essayist: Michelle Griffes, Manager of Programs and Curriculum Development at the Bill of Rights Institute

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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 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.


Movies and television shows have popularized Fifth Amendment protections like “grand jury indictment,” “double jeopardy,” “pleading the Fifth,” and “due process,” but do Americans truly know what these clauses protect? Do Americans understand what their lives would be like without the protections of the Fifth Amendment? In order to explain the Fifth Amendment in its entirety, we will explore each of the five clauses of the Fifth Amendment, the basic history of the clause, and the protections provided by the clause.

The first clause in the Fifth Amendment 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.” According to the Handbook for Federal Grand Jurors, a grand jury hears evidence against an accused person from the United States Attorney or Assistant United States Attorney in order to determine whether he or she should be brought to trial. The U.S. Attorney then has to approve the indictment as a check on the grand jury. [1] Grand juries were first recognized in the Magna Carta in 1215. As British subjects moved to North America,, they brought English common law practices, including grand juries, with them. Eventually, indictments for capital crimes by grand juries were ensrhined in the Bill of Rights.

The second clause in the Fifth Amendment states: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This clause is commonly known as “double jeopardy” and prevents a defendant from being charged for the same crime after acquittal, conviction, certain mistrials, or multiple punishments. The portion of the clause that refers to “life and limb” is derived from the possibility of capital punishment. [2] Protections against double jeopardy can be found as far back as the Old Testament and ancient Roman law. [3] Double jeopardy can be complicated by the differences between criminal and civil cases and state and federal cases. O.J. Simpson, for example, was acquitted in a criminal murder case, but he was found guilty in a civil case. Hate crime statues also challenge double jeopardy protections, with some arguing that trying defendants for a hate crime after acquittal in a criminal case constitutes double jeopardy.

The Fifth Amendment also promises: “nor shall [any person] be compelled in any criminal case to be a witness against himself.” This is the famed “pleading the Fifth” assertion we often hear in American vernacular. The clause protects individuals from answering questions or making statements that might be used as evidence against them. [4] This protection was expanded outside the courtroom with the United States Supreme Court case Miranda v. Arizona, 1966. The Court ruled that the self-incrimination clause also applied in police interrogation. [5]

“[No person shall] be deprived of life, liberty, or property, without due process of law” is the fourth clause of the Fifth Amendment. Due process was first protected under the Magna Carta in which King John promised that he would act in accordance with the law through procedures. The U.S. government provided for due process rights in the Fourth Amendment and in the Equal Protection clause of the Fourteenth Amendment. In order to ensure justice, established procedures must be followed before depriving people of life, liberty, or property. These procedures include the rights to a speedy jury trial, an impartial jury, and to defend oneself. [6]

Property is first mentioned as part of the due process clause of the Fifth Amendment, but private property is mentioned again in the final clause. The clause states, “nor shall private property be taken for public use, without just compensation.” If the state or federal government decides to take private property for public use, they must compensate the owners for that use. This is known as the “takings clause” or “eminent domain.”[7] Supreme Court has held that just compensation is measured by the current market value of the property. [8]

While Americans may hear about the Fifth Amendment protections regularly, they may not really understand the specific rights enumerated in each clause. The Fifth Amendment provides for grand jury indictments in capital crimes, protections against double jeopardy and self-incrimination, and protections of due process rights and just compensation for public use of private property. Each of these rights has a history in English common law or as far back as the Roman Empire, and the Founding Fathers believed that they needed to be explicitly provided for in our own government documents to ensure their protection.
1. Administrative Office of the United States Courts, Washington, D.C. “Handbook for Federal Grand Jurors.”

October, 2007. http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/FederalCourts/Jury/grandhandbook2007.pdf
2. Find Law. “Cases and Codes, U.S. Constitution: Fifth Amendment.” http://caselaw.lp.findlaw.com/data/constitution/amendment05/02.html
3. David S. Rudstein. “A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy.” 14 Wm. & Mary Bill of Rts. J. 193 (2005), http://scholarship.law.wm.edu/wmborj/vol14/iss1/8
4. Find Law. “Fifth Amendment Right Against Self-Incrimination.” http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html
5. The Oyez Project. “Miranda v. Arizona, 1966” http://www.oyez.org/cases/1960-1969/1965/1965_759
6. Cornell University School of Law. “Due Process.” http://www.law.cornell.edu/wex/due_process
7. Missouri Bar Center. “What is Eminent Domain?” http://library.findlaw.com/1999/May/25/130971.html
8. The Oyez Project. “United States v. 50 Acres of Land, 1984.” http://www.oyez.org/cases/1980-1989/1984/1984_83_1170

Michelle Griffes is the Manager of Programs and Curriculum Development at the Bill of Rights Institute, an Arlington, Virginia-based educational non-profit. Michelle obtained degrees from Michigan State University in Public Policy and Olivet College in Elementary and Secondary Education. The Bill of Rights Institute teaches students about the Founding Documents through teacher professional development seminars, curriculum production, and student programs including the annual Being An American Essay Contest.

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3 replies
  1. Barb Zakszewski
    Barb Zakszewski says:

    The last paragraph sums up the 5th amendment perfectly. these essays are excellent in helping us understand the History of the Constitution. The Founders learned from History and used it in creating our Great Nation and Constitution! We owe them so much and this just shows our Nation is truly worth defending from ALL who would do her harm.

    Reply
  2. Marc W. Stauffer
    Marc W. Stauffer says:

    I truly appreciate George Mason’s artful consideration as this amendment was formed. It is obvious why he was considered the “Father of the Bill of rights”. When he drafted the Virginia Bill of Rights it was clear that he intended to protect the people and limit the governments power to unjustly enslave its people through fear. Our fifth amendment keeps government from taking our freedoms from us through illegitimate legal process and thus helps keep its power in check.

    Reply
  3. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The fifth is the classical linch-pin of what are civil rights. Lately there was ado made about how a business owner was fined for violating “civil rights” by a light switch being 53″ high rather than 52″ indicative of social ideals. The height of a light switch has nothing to do with civil rights: the rights you have in court.

    Civil rights were instituted because the commoner was often ignorant of the trappings of the laws made by king and country to be allayed by procedural rights in court. What is not mentioned in this article is the concept of acquittal. To acquit is to remove a defendant from harm from the law by excusing a discrete act thought the individual literally has broken the law. This is also known as “jury nullification” where juries may limit the potential of legal hazard people are at risk from the law. The vote to acquit is known as the 3rd vote of the “jury box” after the right to suffrage at the ballot box and grand jury. It is in the jury box where citizens can send a message back to the legislature that a law itself is unjust; or the way the law is being applied is unjust.

    Reply

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