5th Amendment


"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."


While most people associate the Fifth Amendment with protections aginst incriminating themselves, there are other extremely important protections within this Amendment, among them are the right to due process, grand jury and double jeopardy protections, and prohibits the federal government from taking private property for public use "without just compensation."

One of the most often-cited provisions of the Fifth Amendment by legal professionals is its guarantee of due process under the law. The Fifth Amendment declares that a person cannot be deprived of life, liberty or property without due process of law. When determining whether a person has received due process, courts look to two factors. The first is regarding procedural due process. This questions whether a person has been deprived of fundamental fairness. For example, if a person is facing criminal charges, he or she must be informed of this fact. The second aspect of a consideration of due process is substantive due process. Substantive due process means that the government cannot prosecute individuals for conduct that affects their fundamental rights, such as exercising the rights of religion, assembly or speech without having a compelling reason to do so.

Another important aspect of the Fifth Amendment is the prohibition of double jeopardy. Under the Fifth Amendment, a person cannot be tried or punished twice for the same crime. If a person has already been acquitted of the crime, the prosecution cannot bring the same charges. If the defendant has already been convicted of a crime, he or she cannot be tried again. Also, if the defendant has already been sentenced, he or she cannot be punished again for the same crime. While it sounds simple, the United States Supreme Court has struggled with this rule on many occasions. Certain exceptions have been born out of the prohibition of double jeopardy. For example, a person may be tried on the state and federal level. Additionally, if a defendant requests a mistrial and it is granted, the defendant has waived his or her right against double jeopardy. Likewise, if the defendant appeals his or her conviction, he or she has effectively waived his or her right against double jeopardy. The prohibition against double jeopardy only applies to criminal cases. If a person is tried criminally, he or she can still face a civil trial for the same set of circumstances.

The Fifth Amendment also provides a criminal defendant with a right to a grand jury in federal felony cases. Some states also use grand juries. A grand jury is a number of individuals who decide whether adequate evidence exists to charge a suspect with a particular crime. In this proceeding, a prosecutor presents evidence against the suspect. If the grand jury believes that adequate evidence has been presented, it returns an indictment. This means that the suspect will now be formally charged with a crime. If adequate evidence is not presented, the grand jury returns a no-bill, meaning that the suspect will not be charged with the crime at this time. A defense attorney is not permitted to be present without the prosecutor’s consent. Additionally, illegally-obtained evidence may be presented to the jury even if it will later be suppressed from the actual jury. The grand jury must have probable cause before returning an indictment.

Eminent domain is the government's power to take private land for public use under certain circumstances. The power of eminent domain is defined by the "Takings Clause" of the Fifth Amendment to the U.S. Constitution, which prohibits the federal government from taking private property for public use "without just compensation." This clause is also applied to state and local governments through the Fourteenth Amendment to the Constitution. The Takings Clause does not give the government permission to take any land it wants. On the contrary, it serves as a limit on the power of the government by requiring that a taking can only occur if the land is for "public use" and in exchange for just compensation.

When the government acquires private land, this is known as "taking," in contrast to a property seizure that occurs when the property owner commits certain types of crimes or abandons the property.

While the Constitution only references criminal cases, the rule against self-incrimination also applies to civil cases in which testimony would expose a person to criminal charges. In civil cases, jurors are free to consider a person’s unwillingness to testify in deciding the case.