Fifth Amendment
| Author | Jeffrey Wilson |
| Pages | 479-484 |
Page 479
Having successfully won their independence from a British monarchy and Parliament that they had accused of being undemocratic and tyrannical, the Framers of the federal Constitution had a strong mistrust of large, centralized governments. The Framers drafted the Bill of Rights, consisting of the Constitution's first ten amendments, to serve as a bulwark delineating a range of individual freedoms and thus protecting them from governmental abuse. Laws enacted, implemented, or enforced by governmental officials that infringe on these freedoms are typically invalidated as unconstitutional by the judiciary.
The Fifth Amendment to the U.S. Constitution enumerates five distinct individual freedoms: (1) the right to be indicted by an impartial grand jury before being tried for a federal criminal offense; (2) the right to be free from multiple prosecutions or multiple punishments for a single criminal offense; (3) the right to have individual freedoms protected by due process of law; (4) the right to be free from government compelled self-incrimination; and (5) the right to receive just compensation when the government takes private property for public use.
The text of the Fifth Amendment reads as follows: "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 [sic] 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."
Because the Framers hoped that the Constitution would be an enduring document, they generally avoided using specific language that one might find in a code or a regulation. Instead of specifying particular instances of prohibited governmental conduct in the Bill of Rights, the Framers established broad principles that government officials must take into account before encroaching on individual freedoms.
Page 480
In this way the Framers required future generations of citizens to determine the Constitution's meaning.
In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the U.S. Supreme Court, per Chief Justice John Marshall, ruled that the ultimate authority for determining the Constitution's meaning lay with the judicial branch of government through the power of judicial review. Pursuant to this power, courts are authorized to review laws enacted by government officials and invalidate those that violate the Constitution.
As originally ratified it was unclear whether the Fifth Amendment applied only against action taken by the federal government or if it also protected freedoms from state governmental abuse. The Supreme Court in Barron v. City of Baltimore, 32 U.S. 243 (1833) ruled that the Fifth Amendment did not apply to the states.
This judgment settled the question until the Fourteenth Amendment was ratified in 1868. It guaranteed the citizens of every state the right to equal protection of the laws and the right to due process of law. Following ratification of the Fourteenth Amendment, the Supreme Court began making individual freedoms enumerated in the Bill of Rights applicable to the states via the doctrine of incorporation. Under this doctrine, the Court explained through a series of cases that no state may deny any citizen a fundamental liberty without violating the Fourteenth Amendment's Equal Protection and Due Process clauses. The Court has ruled that these fundamental liberties include every liberty set forth in the Bill of Rights, except the Second Amendment's right to bear arms, the Third Amendment's right against quartering soldiers, the Seventh Amendment's right to trial by jury in civil cases, and the Fifth Amendment's right to indictment by grand jury.
The Fifth Amendment guarantees every person charged with a federal crime the right to be indicted by a grand jury. A grand jury is a group of citizens summoned to criminal court by a law enforcement official to decide whether it is appropriate to indict someone suspected of a crime. Although the right to a grand jury is mandated at the federal level by the U.S. Constitution, about one-third of the state constitutions also require indictment by grand jury for more serious violations of state laws.
Federal grand juries may consist of between 16 and 23 citizens chosen from lists of qualified state residents of legal age, who have not been convicted of a crime, and are not biased against the subject of the investigation. Grand jury proceedings begin with the prosecutor's presenting a bill of indictment, which is a list explaining the case and possible charges. The prosecutor then presents evidence to the grand jurors in the form of exhibits, written documents, and oral testimony by witnesses.
Grand jurors are given wide latitude to inquire about the criminal charges and may compel the production of documents and records and subpoena witnesses, including the suspect under investigation. They may also question witnesses to satisfy themselves that the evidence is credible and reliable. Unlike at trial, hearsay evidence is admissible before grand juries. But like at trial, witnesses who refuse to answer questions may be held in contempt and incarcerated until they provide answers, unless the question requires disclosure of information that might tend to incriminate the witness. The Fifth Amendment's privilege against self-incrimination may be successfully asserted during grand jury proceedings.
Grand juries are accusatory bodies, and prosecutors have no obligation to present exculpatory evidence or testimony that impeaches their witnesses. Nor do...
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