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Civics 101: Fifth Amendment

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 Fifth Amendment puts a lot stuff into a single paragraph.  Let’s take it one part at a time.

Grand Jury

There are two words in this section that need to be defined before we begin:  Capital and Infamous.

  • A capital crime is one that can include the death penalty.
  • An infamous crime has been defined by the courts as one for which the penalty can be at least one year in prison–which makes it effectively the same as a felony.

If the government wants to put you on trial for a felony, they first need to “ask permission” from a group of citizens.  These citizens look at the evidence that the prosecutor presents, listen to their arguments, and decide if there’s enough probable cause to put the accused person on trial.

This system is designed to prevent prosecutors abusing their power and putting people on trial without cause.

Double Jeopardy

Very simply, double jeopardy means that once a person has been found “not guilty”1In American law, a person is never declared “innocent” by a jury.  They are either “guilty” or “not guilty”. by a jury, they cannot be put on trial for that crime again.  This was put in place to prevent the government from harassing people with repeated trials.

Double Jeopardy is often used as a plot device in movies and TV shows.  A guilty person with a great lawyer goes to trial and is found “not guilty”–then brags that they did the crime, and the police can’t touch them [cue dramatic music].  That person could, however, be tried for other crimes–such as committing perjury during the trial.

Currently, there is a loophole that has yet to be decided by the courts:  Can a person who has been found not-guilty in a state court be tried for the same crime in a federal court?

Pleading the Fifth

This should be familiar to anyone who has watched any TV shows that involve the police and the courts.  It starts with the very familiar phrase “You have the right to remain silent”.

The basics of this section are simple:  You can not be forced to say something that may harm you during a trial.  You can, however, be tricked into saying it2This YouTube video is a very good explanation of why you should “never talk to the police” if you’re accused of something..

Part of “pleading the fifth” is that refusal to answer questions can not be used against you.  The prosecution can’t say “He’s not talking because he’s hiding his guilt!”

In this age of computers and smart phones, there is a lot of debate in the courts about whether or not this part of the Fifth Amendment applies to passwords.  Can you be forced to give the government your password if you know that they can use something on your computer or phone against you?  This has yet to be decided.

Due Process

This part is fairly simple:  There are rules that the government must follow.  If they don’t follow those rules, they lose.

Eminent Domain

The government has the power to “take” personal property so it can be used for the common good.  The Fifth Amendment says that if the government does this, they have to pay “fair market value” for what they take.

Because of a 2005 Supreme Court Decision (Kelo v. City of New London), this has become controversial.  In that decision, SCOTUS said that the government could take land and give it to a developer (in order to build a shopping mall, in that instance) because the businesses would increase the tax base and benefit everyone.

This same reasoning was given when homes were taken to build the Foxxcon plant in Kenosha.


1 In American law, a person is never declared “innocent” by a jury.  They are either “guilty” or “not guilty”.
2 This YouTube video is a very good explanation of why you should “never talk to the police” if you’re accused of something.

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