What is the Fifth Amendment?

The Fifth Amendment protects against self-incrimination, guarantees due process of law, and contains five separate safeguards for people accused of crimes or facing government action against their property. Ratified on December 15, 1791 as part of the Bill of Rights, it requires that 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. It then forbids double jeopardy, compelled self-incrimination, deprivation of life, liberty, or property without due process of law, and the taking of private property for public use without just compensation.

The grand jury clause requires a panel of citizens, typically twenty-three jurors, to find probable cause before federal felony charges proceed, although the Court has held this requirement is one of the few in the Bill of Rights not incorporated against the states under Hurtado v. California (1884). The double jeopardy clause prevents the government from prosecuting a person twice for the same offense after acquittal or conviction, although the dual sovereignty doctrine in Heath v. Alabama (1985) allows separate state and federal prosecutions.

The self-incrimination clause is the source of the warning officers must give before custodial interrogation, established by Miranda v. Arizona (1966), which requires police to tell suspects of the right to remain silent, that anything they say may be used against them, the right to an attorney, and the right to a court-appointed lawyer if they cannot afford one. The clause also covers compelled testimony before grand juries, congressional committees, and administrative tribunals, and it shielded witnesses such as Ernest Miranda himself, McCarthy era figures, and corporate officers.

Due process under the Fifth Amendment requires fair procedures before the federal government deprives someone of life, liberty, or property, and Bolling v. Sharpe (1954) read it as containing an equal protection component reverse-incorporated against the federal government. The Takings Clause requires just compensation for private property taken for public use, as the Court applied in Kelo v. City of New London (2005) and Penn Central Transportation Co. v. New York City (1978).

The amendment grew from English common law traditions including the right against torture, and the famous trial of John Lilburne in 1637, who refused to take the oath ex officio. Naturalization candidates should remember that pleading the Fifth means refusing to answer questions whose answers might tend to incriminate, a constitutional protection that applies in court, before grand juries, and during police questioning.