Fifth Amendment to the United States Constitution

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Created on December 15, 1791, the Fifth Amendment to the United States Constitution is a part of the United States Bill of Rights. This amendment establishes a number of legal rights that apply to both civil and criminal proceedings.[1] It contains several clauses: It guarantees the right to a grand jury. It forbids double jeopardy (being tried again for the same crime after an acquittal).[1] It protects a person against self-incrimination (being a witness against himself).[1] This is often called "Pleading the Fifth". The Fifth Amendment requires due process in any case where a citizen may be deprived of "life, liberty, or property".[1] Any time the government takes private property for public use, the owner must be compensated.[1]

Text[change | change source]

The language of the Fifth Amendment is:

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.[2]

Clauses[change | change source]

Grand Juries[change | change source]

The Fifth Amendment requires the use of grand juries by the federal legal system for all capital and "infamous crimes" (cases involving treason, certain felonies or gross moral turpitude[3]).[4] Grand juries trace their roots back to the Assize of Clarendon, an enactment by Henry II of England in 1166. The United States is one of the few remaining countries that uses the grand jury.

Double Jeopardy[change | change source]

The Double Jeopardy clause in the Fifth Amendment forbids a defendant from being tried again on the same (or similar) charges in the same case following a legitimate acquittal or conviction. In common law countries, a defendant may enter a peremptory plea of autrefois acquit or autrefois convict (autrefois means "in the past" in French).[5] It means if the defendant has been acquitted or convicted of the same offence and cannot be retried under the principle of double jeopardy.[1] The original intent of the clause is to prevent an individual to go through a number of prosecutions for the same act until the prosecutor gets a conviction.[1]

Self-Incrimination[change | change source]

In a criminal prosecution, under the Fifth Amendment, a person has the right to refuse to incriminate himself (or herself).[1] No person is required to give information that could be used against him. This is also called "taking the Fifth" or more commonly "pleading the Fifth."[6] The intent of this clause is to prevent the government from making a person confess under oath.[a] A person may not refuse to answer any relevant question under oath unless the answer would incriminate him. If the answer to a question on the witness stand could be used to convict that person of a crime, he can assert his Fifth Amendment rights.[6]

The authors of the Fifth Amendment intended the provisions in it apply only to the federal government.[8] Since 1925, under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments. Since the landmark decision Miranda v. Arizona, 384 U.S. 436 (1966), when they arrest someone, police are required to include the "right to remain silent" as part of the legal Miranda warning (the wording may vary).[9]

Due process[change | change source]

The due process clause guarantees every person a fair, just and orderly legal proceeding. The Fifth Amendment applies to the federal government. The Fourteenth Amendment to the United States Constitution, among other provisions, forbids states from denying anyone their life, their liberty or their property without due process of law[10] So the Fourteenth Amendment expands the Due Process clause of the Fifth Amendment to apply to the states. Due process means the government must follow the law and not violate any parts of it.[11] An example of violating due process is when a judge shows bias against the defendant in a trial.[11] Another example is when the prosecution fails to disclose information to the defense that would show the defendant is not guilty of the crime. [11]

Takings[change | change source]

The Takings Clause of the Fifth Amendment states "private property [shall not] be taken for public use, without just compensation."[12] The Fifth Amendment restricts only the federal government. The Fourteenth Amendment extended this clause to include actions taken by State and local governments.[12] Whenever the government wants to buy property for public use, they make an offer to the owner. If the owner does not want to sell the property, the government can take them to court and exercise a power called eminent domain.[12] The name comes from the Latin term dominium eminens (meaning supreme lordship). The court then condemns the property (meaning say it can no longer be occupied by people). This allows the government to take over the property, but must pay "just compensation" to the owner. In other words, the government body must pay what the property is worth.[12]

A case heard before the U.S. Supreme Court, Kelo v. City of New London, 545 U.S. 469 (2005), was decided in favor of allowing the use of eminent domain to transfer land from one private owner to another private owner.[13] The court upheld the city of New London, Connecticut's proposed use of the petitioner's private property qualifies as a "public use" fell within the meaning of the Takings Clause.[13] The city felt the property was in poor condition and the new owner would improve it. This extension of the Takings Clause has been very controversal.[b]

Notes[change | change source]

  1. When a person testifies in a court of law they are always required to give an oath to tell the truth. The penalty for lying under oath is called perjury.[7]
  2. An example is Donald Trump who has repeatedly used eminent domain to take over private property when the owner refuses to sell to him.[14] One instance in particular involved Trump wanting to build a parking lot for limousine parking next to (at that time) his Trump Plaza Hotel and Casino.[14] Three owners of properties refused to sell to him.[14] Trump asked the Casino Reinvestment Development Authority (CRDA) to take over the properties.[14] In one case the CRDA offered $174,000 for a property worth $500,000, then told the owner to leave.[14] The case, Casino Reinvestment Development Authority V. Banin, was heard in the New Jersey Superior Court and Trump and the CRDA lost their case.[15] However, as of 2003, state and local governments have used eminent domain to take well over 10,000 homes and businesses then turn them over to private investors.[16] Between 1998 and 2002, courts have sided with the original owners in only about 40 percent of eminent domain lawsuits.[16]

References[change | change source]

  1. 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 "Fifth Amendment". Cornell University Law School. Retrieved 4 February 2016.
  2. "Bill of Rights". The National Archives. Retrieved 4 February 2016.
  3. "infamous crime". Merriam-Webster, Incorporated. Retrieved 4 February 2016.
  4. "How a grand jury works". The Economist Newspaper Limited. 7 December 2014. Retrieved 4 February 2016.
  5. Stephen Vincent Benét. A treatise on military law and the practice of courts-martial (New York: D. Van Nostrand, 1864), p. 97
  6. 6.0 6.1 "Taking the 5th". Lawyers.com. Retrieved 6 February 2016.
  7. "Perjury". FindLaw. Retrieved 6 February 2016.
  8. "Fifth Amendment". The Free Dictionary/Farlex. Retrieved 6 February 2016.
  9. ""Pleading the Fifth" and Miranda Warnings". Lawyers.com. Retrieved 6 February 2016.
  10. "Primary Documents in American History; 14th Amendment to the U.S. Constitution". The Library of Congress. Retrieved 7 February 2016.
  11. 11.0 11.1 11.2 Roger A. Fairfax; John C. Harrison. "The Fifth Amendment Due Process Clause". National Constitution Center. Retrieved 7 February 2016.
  12. 12.0 12.1 12.2 12.3 "CPR Perspective: The Takings Clause of the Fifth Amendment". The Center for Progressive Reform. Retrieved 7 February 2016.
  13. 13.0 13.1 "Kelo v. New London [04-108]". FindLaw. Retrieved 7 February 2016.
  14. 14.0 14.1 14.2 14.3 14.4 Ilya Somin (20 August 2015). "Donald Trump's history of eminent domain abuse". The Washington Post. Retrieved 7 February 2016.
  15. "Casino Reinvestment Development Authority V. Banin". FindLaw. Retrieved 7 February 2016.
  16. 16.0 16.1 Alexandra Marks (9 May 2003). "Eminent domain and private gain". The Christian Science Monitor. Retrieved 7 February 2016.