Fifth Amendment to the United States Constitution

Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. Its guarantees stem from English common law. For instance, grand juries and the phrase "due process" both trace their origin to common law.

Grand jury

Grand juries, which return indictments in many criminal cases, are composed entirely of laymen and operate in secret; they are directed, but not controlled, by prosecutors. Many constitutional restrictions do not apply during grand jury proceedings. The "exclusionary rule," which prevents evidence seized in violation of the Fourth Amendment from being introduced in court, does not apply to evidence presented to a grand jury. Witnesses do not have the right to have their attorneys present in grand jury rooms during hearings; they would normally have such a right when being investigated by the police. The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment; in other words, it has not been ruled applicable to the states. States are thus free to abolish grand juries, and many (though not all) have indeed replaced them with preliminary hearings.

Related Topics:
Grand juries - Fourth Amendment - Incorporated - Fourteenth Amendment - Preliminary hearing

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Whether or not a crime is "infamous" is determined by the nature of the punishment that may be imposed (not the punishment that is actually imposed). (Crimes punishable by capital punishment are explicitly required to be tried upon indictments.) In United States v. Moreland (1922), the Supreme Court held that imprisonment in a prison or penitentiary (as opposed to a correction or reformation house) attaches infamy to a crime. Currently, federal law permits the trial of misdemeanors without indictments. In cases involving felonies except those in which capital punishment may be applied, the prosecution may proceed without indictments if the defendants waive their Fifth Amendment right.

Related Topics:
Capital punishment - United States v. Moreland - 1922 - Misdemeanor

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Indictments found by grand juries may be amended by the prosecution only in limited circumstances. In Ex Parte Bain (1887), the Supreme Court held that the indictment could not be changed at all by the prosecution. United States v. Miller (1985) partly reversed the previous ruling; now, an indictment's scope may be narrowed by the prosecution. Thus, lesser included charges may be dropped, but new charges may not be added.

Related Topics:
Ex Parte Bain - 1887 - United States v. Miller - 1985

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The Fifth Amendment's grand jury clause does not protect those serving in the Armed Forces, whether during wartime or peacetime. Members of the state militia called up to serve with federal forces are not protected by the clause either. In O'Callahan v. Parker (1969), the Supreme Court held that only service-related charges may be brought against members of the militia without indictments. That decision was overturned in 1987, when the Court held that members of the militia in actual service may be tried for any offense without indictments.

Related Topics:
O'Callahan v. Parker - 1969 - 1987

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