Fifth Amendment

• Author: Jeffrey Lehman, Shirelle Phelps

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The Fifth Amendment to the U.S. Constitution 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, 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 BILL OF RIGHTS, which consists of the first ten amendments to the U.S. Constitution, enumerates certain basic personal liberties. Laws passed by elected officials that infringe on these liberties are invalidated by the judiciary as unconstitutional. The Fifth Amendment to the Constitution, ratified in 1791, represents five distinct liberties the that Framers attempted to safeguard from majoritarian impulses: (1) the

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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 punishments for a single criminal offense, (3) the right to remain silent when prosecuted for a criminal offense, (4) the right to have personal liberties protected by DUE PROCESS OF LAW, and (5) the right to receive just compensation when the government takes private property for public use.

The Framers of the Fifth Amendment intended that its provisions would apply only to the actions of the federal government. However, after the FOURTEENTH AMENDMENT was ratified, most of the Fifth Amendment's protections were made applicable to the states. Under the INCORPORATION DOCTRINE, most of the liberties set forth in the Bill of Rights were made applicable to state governments through the U.S. Supreme Court's interpretation of the Due Process and EQUAL PROTECTION Clauses of the Fourteenth Amendment. As a result, all states must provide protection against DOUBLE JEOPARDY, SELF-INCRIMINATION, deprivation of due process, and government taking of private property without just compensation. The Grand Jury Clause of the Fifth Amendment has not been made applicable to state governments.

Double Jeopardy Clause

The Double Jeopardy Clause of the Fifth Amendment prohibits state and federal governments from reprosecuting for the same offense a defendant who has already been acquitted or convicted. It also prevents state and federal governments from imposing more than one punishment for the same offense.

For more than a century, courts have wrestled with the question of what constitutes an acquittal such that a person has already been placed in jeopardy for a particular offense. However, all courts agree that the Double Jeopardy Clause applies only to legal proceedings brought by state and federal governments in criminal court. It does not apply to legal proceedings instituted by purely private individuals in civil court.

The U.S. legal system has two primary divisions, criminal and civil. Criminal actions are designed to punish individuals for wrongdoing against the public order. Civil actions are designed to compensate victims with money damages for injuries suffered at the hands of another. An individual who has been acquitted in criminal court of murder can, without violating the Double Jeopardy Clause, be required in civil court to pay money damages to the family of a victim. Thus, the successive criminal and civil trials of O. J. SIMPSON, regarding the deaths of Nicole Brown Simpson and Ronald Goldman, did not constitute double jeopardy.

The Fifth Amendment's prohibition against double jeopardy is rooted in Anglo-Saxon JURISPRUDENCE. Yet, in England, the Crown sometimes ignored the right against double jeopardy. In certain important cases where an acquittal undermined royal interests, the defendant was tried again in a different manner or by a different court. The protection against double jeopardy was also extremely narrow under ENGLISH LAW. It applied only to capital crimes, in which the defendant would be subject to the death penalty if convicted. It did not apply to lesser offenses such as noncapital felonies and misdemeanors.

Massachusetts was the first colony that recognized a right against double jeopardy. Its colonial charter provided, "No man shall be twise [sic] sentenced by Civil Justice for one and the same Crime, offence, or Trespasse" (as quoted in United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 [1989]). This charter, which served as a model for several other colonies, expanded the protection against double jeopardy to all crimes and offenses, not just capital felonies. Nonetheless, when the Bill of Rights was ratified in 1791, the constitutions of only two states expressly afforded double jeopardy protection. Thus, when JAMES MADISON submitted his proposal for the Fifth Amendment to Congress, he wanted to be sure that the right against double jeopardy would not be abused by the government, as it had been in England, or altogether forgotten, as it had been in the constitutions of eleven states.

Although Congress and the state ratifying conventions said very little about the Fifth Amendment's Double Jeopardy Clause, the U.S. Supreme Court has identified several concerns that the Framers were trying to address when they drafted it: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons...