Fifth Amendment: Justice in Jeopardy

The Passage

The Fifth Amendment was passed along with nine others that together became known as the Bill of Rights in 1791. There was a huge concern that without written rights, the national government would obtain too much power and become oppressive. The British justice system often took advantage of colonists, so the Fifth Amendment was designed to safeguard citizens from unjust proceedings.

Amendment Text

“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.”

What Does It Mean? 

The Fifth Amendment contains five main ideas relating to the rights of people in criminal or civil processes. They are the right to a grand jury; protection from double jeopardy; protection from self-incrimination; the right to maintain life, liberty, and property without due process; and lastly, just compensation for taken property.

Grand juries don't determine the guilt of a defendant like trial juries do. Instead, they assess whether there's an adequate basis for bringing charges against criminal suspects. Grand juries are selected from the same pool of people as trial jurors, and their decision determines if a criminal case should go to trial. 

Double jeopardy prohibits anyone from being prosecuted twice for the same crime. More specifically, this means that one person cannot be tried for one crime, found guilty or not guilty, and then tried again for the same charge. There are some exceptions to a citizen’s double jeopardy protection. Culprits may still be punished in both criminal court and civil court for the same act or be convicted of two different offenses arising from the same criminal incident.

The right to not incriminate oneself means that individuals accused of a crime don't need to share information that makes them look guilty. They can instead exercise their right to remain silent.

The Due Process Clause of the Fifth Amendment ensures that citizens are not arbitrarily denied their basic human rights, such as life, liberty, and property, without a typical criminal proceeding. The Fourteenth Amendment also contains a due process clause with nearly identical wording, so cases focusing on due process often invoke both the Fifth and Fourteenth Amendments.

Just compensation prevents the government from simply taking private property. This Takings Clause means that the government must provide payment, usually what's considered fair market value of the seized property. 

Major Court Cases 

The 1884 Supreme Court Case of Hurtado v. California ruled that a state criminal proceeding based on information instead of indictment by a grand jury does not violate due process. This is because any legal proceeding that protects liberty and justice qualifies as due process. Therefore, states may decide to send criminal cases to trial using other methods that protect liberty and justice, such as preliminary hearings, instead of grand juries. 

One of the most well-known Fifth Amendment cases is the 1966 case of Miranda v. Arizona, which consolidated four cases where defendants were not told of their Fifth Amendment rights before signing a confession. In a 5-4 Supreme Court decision, the Supreme Court found a defendant must first be warned of their rights before questioning, which they can then waive. If not told of their rights, a confession cannot be used in trial.

A 1940 case, known as Chambers v. Florida, found mental torture accompanied by threats of violence for confessions violates the due process clause of the Fifth Amendment. In 1944, the Supreme Court expanded this interpretation in Ashcraft v. Tennessee, declaring that psychological torture could not be used as a means to get a confession.


The term "due process" often comes under scrutiny because it is so broad. Legal scholars and criminal prosecutors grapple over whether "due process" is simply a procedural recommendation or if it holds significant legal substance. Procedural due process is the right to a fair hearing if the citizen believes their natural rights were violated. On the other hand, substantive due process focuses more abstractly on the "liberty" to challenge the validity of laws involving rights not explicitly mentioned in the Constitution. The idea is that certain rights unrelated to legal procedures are still protected. Cases concerning the Fifth Amendment are typically dealt with under the umbrella of procedural due process because the Fifth Amendment describes the operational logistics of legal practices. 

While suspects must be told of their Miranda rights, that doesn't mean they have to understand them. There's no uniform warning that must be issued, and reform advocates have stated the language used by many jurisdictions does not clearly and adequately inform suspects of their rights. Furthermore, pleading the fifth is much more difficult than the entertainment industry makes it out to be. In more recent cases like 2010's Berghuis v. Thompkins, the Court has limited the right against self-incrimination, especially concerning police questioning. Suspects must "unambiguously" invoke their right to remain silent – staying quiet, on its own, does not count as an invocation. Even a reply after prolonged silence can be considered as waiving the right to remain silent. Critics have condemned such limited views, arguing that they make successfully pleading the fifth nearly impossible.

So What?

The criminal justice system has immense power to change lives and take away civil rights. The Fifth Amendment limits that power. Just because someone is accused of a crime doesn't mean they can be taken advantage of - to do so would make our courts no better than those our ancestors dismantled.

Think Further

  1. Which Fifth Amendment right do you think is the most important? Why?
  2. Why are the five rights of the Fifth Amendment combined into a single amendment? 
  3. What would the criminal justice system look like without the Fifth Amendment?


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Learn More

  1. “Fifth Amendment.” Legal Information Institute, Cornell Law School,
  2. “5th Amendment.” Constitutional Rights Origins and Travels, The National Constitution Center, 
  3. “How Does a Grand Jury Work?” Findlaw, 2 Apr. 2019,
  4. “Miranda v. Arizona.” Oyez,
  5. “Fifth Amendment Takings.” The United States Department of Justice, 12 May 2015,