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.

Self-incrimination

The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence. Fifth Amendment protections apply wherever and whenever an individual is compelled to testify, including in settings such as grand jury or congressional hearings (in the 1950s, many witnesses testifying before the House Committee on Un-American Activities and the Senate Internal Security Subcommittee cited their rights under the amendment in response to questions concerning their alleged membership in the Communist Party, and the amendment has also been used extensively by defendants and witnesses in criminal cases involving the Mafia). The Supreme Court has also used the incorporation doctrine to apply the self-incrimination clause against the states under the Fourteenth Amendment.

Related Topics:
Congressional - 1950s - House Committee on Un-American Activities - Senate Internal Security Subcommittee - Communist Party - Mafia - Incorporation doctrine

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In some cases, individuals may be compelled to report or disclose evidence that may be used against them in criminal cases. In United States v. Sullivan (1927), the Supreme Court held that an individual could not refuse to file an income tax return on the grounds that he would in doing so have to disclose the illegal source of his revenue. In Albertson v. SACB (1965), however, the Supreme Court struck down a law requiring members of the Communist Party to register with the government, on the grounds that it was "directed at a highly selective group inherently suspect of criminal activities." Corporations may also be compelled to keep and turn over records; the Supreme Court has held that Fifth Amendment protections against self-incrimination extend only to "natural persons." There are, however, a few restraints on the government; it may not, for instance, compel a person to keep records for a corporation if those records could be used against the record-keeper himself.

Related Topics:
United States v. Sullivan - 1927 - Albertson v. SACB - 1965

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In the context of the courtroom, the Supreme Court has ruled that the government cannot punish a defendant for exercising his right to silence by allowing the prosecutor to ask the jury to draw an inference of guilt from the defendant's refusal to testify in his own defense. Griffin v. California, 380 U.S. 609 (1965). In Griffin, the Court overturned as unconstitutional (under the federal Constitution) a provision of the California state constitution that had explicitly granted such power to prosecutors.

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If the government gives an individual immunity, then that individual may be compelled to testify. Immunity may be "transactional immunity" or "use immunity"; in the former, the witness is immune from prosecution for offenses related to the testimony; in the latter, the witness may be prosecuted, but his testimony may not be used against him. The Supreme Court has held that the government need only grant use immunity to compel testimony. The use immunity, however, must extend not only to the testimony made by the witness, but also to all evidence derived therefrom. This scenario most commonly arises in cases related to organized crime.

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The Fifth Amendment's protections often relate to police interrogations and confessions by suspects. Originally, at common law, any confession, however obtained (even by torture), was admissible in court. In the eighteenth century, common law in England came to provide that coerced confessions were inadmissible. The common law rule was incorporated into American law by the courts. However, the use of brutal torture to extract confessions was routine in some rural states as late as the 1930s, and stopped only after the U.S. Supreme Court kept throwing out convictions based on such confessions, in cases like Green v. Mississippi (1933).

Related Topics:
Common law - 1930s - 1933

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Police departments responded by switching to more subtle techniques, so the next step was a series of cases in which the Court held that physical torture is not the only element that renders a confession involuntary and inadmissible. Chambers v. Florida (1940) held a confession obtained after five days of prolonged questioning, during which time the defendant was held incommunicado, to be coerced; a similar finding was reached in Ashcraft v. Tennessee (1944), the suspect having been interrogated under electric lights by officers continuously for a period of thirty-six hours. Haynes v. Washington (1963) held that an "unfair and inherently coercive context" (for instance, a prolonged interrogation) rendered a confession inadmissible.

Related Topics:
Chambers v. Florida - 1940 - Ashcraft v. Tennessee - 1944 - Haynes v. Washington - 1963

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Miranda v. Arizona (1966) was a landmark case involving confessions. Ernesto Miranda had signed a statement confessing the crime, but the Supreme Court held that the confession was inadmissible because the defendant had not been warned of his rights. The Court held, "the prosecution may not use statements stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." The warning Chief Justice Earl Warren referred to is now called the Miranda Warning, and is delivered by police before interrogations.

Related Topics:
Miranda v. Arizona - 1966 - Ernesto Miranda - Earl Warren - Miranda Warning

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Miranda has been clarified by several further Supreme Court rulings. For the warning to be necessary, the questioning must be under "custodial" circumstances. A person detained in jail or under arrest is deemed to be in police custody. Mere presence in a police station does not indicate that the circumstances of questioning were custodial unless a reasonable person in the suspect's situation would believe that he is not free to leave. The questioning need not be explicit; for example, two police officers engaging in a conversation designed to goad the suspect into interjecting an incriminatory remark would constitute questioning. A person may choose to waive his Miranda rights, but the prosecution bears the burden of showing that such a waiver was actually made.

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A confession not preceded by a Miranda warning (where one is necessary) cannot be admitted as evidence against the confessing party in normal judicial precedings. The Supreme Court, however, has held that if a defendant voluntarily testifies at the trial that he did not commit the crime, his confession may be introduced to challenge his credibility (i.e. to "impeach" the witness), even if it was obtained without giving the required warnings.

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In Hiibel v. Sixth Judicial District Court of Nevada, the Supreme Court ruled 5-4 on June 21, 2004 that the First, Fifth, and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police.

Related Topics:
Hiibel v. Sixth Judicial District Court of Nevada - June 21 - 2004

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