A Closer Look at the Fifth Amendment of the U.S. Constitution
Anyone who eagerly tunes in each week to watch a favorite television crime drama has more than likely gained a passing knowledge of everything from police procedure and crime scene investigation to courtroom tactics and, of course, constitutional rights.
Regarding this last point, they’ve probably heard terms like “self-incrimination,” “due process,” “fair trial,” and “double jeopardy,” being used by the actors.
In today’s post, the first in an ongoing series, we’ll start to take a closer look at the Fifth Amendment of the United States Constitution, and the various protections it provides at both the state and federal level in order to help broaden your understanding.
What exactly does the Fifth Amendment say?
While the entire text of the Fifth Amendment is perhaps too lengthy to reproduce in a blog post, it essentially sets forth five distinct constitutional protections/limits on police procedure.
What are these five constitutional protections/limits on police procedure?
In general, the five constitutional protections/limits set forth by the Fifth Amendment pertain to the following:
- Grand juries
- Self-incrimination
- Double jeopardy
- Due process
- Just compensation
Have the constitutional protections/limits set forth by the Fifth Amendment always applied at both the state and federal level?
No. As it was originally drafted, the Fifth Amendment was only applicable to the federal courts. However, the Supreme Court of the United States changed this long ago by interpreting the Fourteenth Amendment’s Due Process Clause as being a mechanism through which the Fifth Amendment (and other Amendments) could be applied to the individual states.
I’ve heard the phrase “plead the Fifth” used quite a bit, what does it mean?
The language of the Fifth Amendment provides, in part, that no person “shall be compelled in any criminal case to be a witness against himself.” This essentially means that defendants cannot be forced to testify at criminal trials.
Similarly, the Fifth Amendment allows those witnesses who testify at criminal trials to refuse to answer questions if they believe that doing so would prove self-incriminatory. This is likely the context in which you’ve heard “plead the Fifth.”
Does the Fifth Amendment’s protection against self-incrimination only apply in the courtroom?
No. Thanks to the decision of the Supreme Court of the United States in Miranda v. Arizona, the Fifth Amendment’s protection against self-incrimination is applied to any scenario where personal freedom is somehow curtailed.
Does this mean it applies to arrests?
The Fifth Amendment’s protection against self-incrimination applies anytime law enforcement officials take someone into custody. Indeed, they must inform all suspects of what are known as their Miranda Rights, including:
- The right to remain silent
- The right to have an attorney present during interrogation
- The right to secure the services of a government-appointed attorney if they are unable to cover the cost of hiring a private attorney
What happens if law enforcement officials fail to read a suspect their Miranda rights?
Any failure by law enforcement officials to read a suspect their Miranda rights upon being taken into custody will generally be viewed by the courts as a violation of the Fifth Amendment and result in the suppression of any statements the suspect may have made. In other words, these statements won’t be admitted into evidence.
This doesn’t apply, however, if the suspect has waived their Miranda rights.
What constitutes a waiver of Miranda rights?
The law holds that a valid waiver of Miranda rights occurs where a suspect has acted knowingly, intelligently and voluntarily.
How exactly is it determined whether a suspect made the waiver knowingly, intelligently and voluntarily?
When determining if a suspect’s waiver of Miranda rights is made knowingly, intelligently and voluntarily, the court will examine what is known as the totality of the circumstances. As implied by the name, this standard means a court will take everything into account, including all facts and context.
What if a suspect speaks spontaneously?
If a suspect speaks spontaneously and before being read their Miranda rights, their statements can be used against them if they were not prompted by any sort of law enforcement interrogation.
We will continue to examine the Fifth Amendment in future posts. In the meantime, consider speaking with a skilled legal professional as soon as possible if you have been arrested or formally charged in order to protect your rights and your future.
