The Fifth Amendment: not just about the right not to incriminate yourself

It’s part six of our series on the Bill of Rights, and here we consider the Fifth Amendment, which reads:

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.

Why is it we only think of “I take the Fifth?” being said in court when we think of this portmanteau amendment? The Fifth Amendment does four distinct things:

—It does indeed give people the right to refuse to say anything in court that might prove them to be guilty of a crime, or essentially make a person a witness for the attorney prosecuting her/him. However, you must explicitly say that you are invoking your Fifth Amendment right not to answer a question: you can’t just remain silent.

—It requires grand juries to be called to hear cases of felony (“Infamous crimes”), except in the case of military personnel accused of committing crimes during wartime (these are handled by military trials/tribunals).

—It gives people the right not to be tried twice for the same offense in federal court. Clearly, people are often tried and re-tried through appeals, but someone cannot appear as a defendant in the same case before the same federal court (that’s why things move up to district and circuit courts and finally to the Supreme Court). This is called the “double jeopardy clause”.

—It grants citizens due process under the law, in a preview of the Fourteenth Amendment. No one can be arrested or have their property taken away without being explicitly told which law they have broken (or that they have broken a law at all).

—It forces any state or federal authority that takes away someone’s property by right of eminent domain to reimburse the person(s) who lost their property with something of equal value (“just compensation”).

That’s a lot. Most Fifth Amendment cases have addressed the self-incrimination aspect. During the Red Scare of the early 1950s, people hauled before the House Un-American Activities Committee who refused to testify against themselves by even answering questions about whether they were communists invoked the Fifth Amendment, but were lacerated as cowards and liars for doing so. Since being a communist was not actually a crime in the U.S. legal code, many people were not allowed to invoke the Fifth because it is specifically meant to prevent people from being forced to admit criminal activity.

In the following decade, this history was revisited when the Supreme Court decided in Griffin v. California (1965) that taking the Fifth in court cannot be used to persuade a jury that the person refusing to testify is guilty.

Many cases have dealt with whether police officers used harsh interrogations, intimidation, threats, or torture and violence to force confessions out of suspects in their custody. The 1966 Miranda v. Arizona case threw out Miranda’s confession because it was forced out of him by police officers who did not tell him he had the right to remain silent. The Supreme Court said that the police are required to tell people that they have a Fifth Amendment right not to incriminate themselves—a right now usually referred to as “Miranda rights”.

Other rulings include one saying that someone can’t refuse to provide their tax records because they will incriminate them, and another that said, conversely, that someone can refuse to provide computer hard drives on that basis.

Next time: the long-abused Sixth Amendment

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