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[TEXT]: Fifth Amendment to the United States Constitution The Fifth Amendment (Amendment V) to the United States Constitution creates several constitutional rights, limiting governmental powers regarding both criminal procedure and civil matters. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amendment applies to every level of the government, including the federal, state, and local levels, in regard to any "person". The Supreme Court furthered the protections of this amendment through the Due Process Clause of the Fourteenth Amendment. One provision of the Fifth Amendment requires that felonies be tried only upon indictment by a grand jury. Another provision, the Double Jeopardy Clause, provides the right of defendants to be tried only once in federal court for the same offense. The Self-Incrimination clause provides various protections against self-incrimination, including the right of an individual not to serve as a witness in a criminal case in which he or she is a defendant. "Pleading the Fifth" is a colloquial term often used to invoke the Self-Incrimination Clause when witnesses decline to answer questions where the answers might incriminate them. In the 1966 case of Miranda v. Arizona, the Supreme Court held that the Self-Incrimination Clause requires the police to issue a Miranda warning to criminal suspects interrogated while in police custody. The Fifth Amendment also contains the Takings Clause, which allows the federal government to take private property for public use if the government provides "just compensation". Like the Fourteenth Amendment, the Fifth Amendment includes a due process clause stating that no person shall "be deprived of life, liberty, or property, without due process of law". The Fifth Amendment's Due Process Clause applies to the federal government, while the Fourteenth Amendment's Due Process Clause applies to state governments. The Supreme Court has interpreted the Fifth Amendment's Due Process Clause to provide two main protections: procedural due process, which requires government officials to follow fair procedures before depriving a person of life, liberty, or property, and substantive due process, which protects certain fundamental rights from government interference. The Supreme Court has also held that the Due Process Clause contains a prohibition against vague laws and an implied equal protection requirement similar to the Fourteenth Amendment's Equal Protection Clause. Text The amendment as proposed by Congress in 1789: 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. The hand-written copy of the proposed Bill of Rights, 1789, cropped to show just the text that would later be ratified as the Fifth Amendment Background before adoption James Madison, drafter of the Bill of Rights, by John Vanderlyn On June 8, 1789, Congressman James Madison introduced several proposed constitutional amendments during a speech to the House of Representatives.[1] His draft language that later became the Fifth Amendment was as follows:[1][2] No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without just compensation. ...[E]xcept in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger ... in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary ... This draft was edited by Congress; all the material before the first ellipsis was placed at the end, and some of the wording was modified. After approval by Congress, the amendment was ratified by the states on December 15, 1791 as part of the Bill of Rights. Every one of the five clauses in the final amendment appeared in Madison's draft, and in their final order those clauses are: the Grand Jury Clause (which Madison had placed last); the Double Jeopardy Clause; the Self Incrimination Clause; the Due Process Clause; and, the Takings Clause. Grand jury Further information: Grand juries in the United States The grand jury is a pre-constitutional common law institution, and a constitutional fixture in its own right exclusively embracing common law. The process applies to the states to the extent that the states have incorporated grand juries and/or common law. Most states have an alternative civil process. "Although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelming [p688] majority of the States." Branzburg v. Hayes (No. 70-85) 1972. Grand juries, which return indictments in many criminal cases, are composed of a jury of peers and operate in closed deliberation proceedings; they are given specific instructions regarding the law by the judge. Many constitutional restrictions that apply in court or in other situations do not apply during grand jury proceedings. For example, the exclusionary rule does not apply to certain evidence presented to a grand jury; the exclusionary rule states that evidence obtained in violation of the Fourth, Fifth or Sixth amendments cannot be introduced in court.[3] Also, an individual does not have the right to have an attorney present in the grand jury room during hearings. An individual would have such a right during questioning by the police while in custody, but an individual testifying before a grand jury is free to leave the grand jury room to consult with his attorney outside the room before returning to answer a question. The Bill of Rights in the National Archives Currently, federal law permits the trial of misdemeanors without indictments.[4] Additionally, in trials of non-capital felonies, the prosecution may proceed without indictments if the defendants waive their Fifth Amendment right. Grand jury indictments may be amended by the prosecution only in limited circumstances. In Ex Parte Bain, 121 U.S. 1 (1887), the Supreme Court held that the indictment could not be changed at all by the prosecution. United States v. Miller, 471 U.S. 130 (1985) partly reversed Ex parte Bain; 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. The Grand Jury Clause of the Fifth Amendment 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 under the clause either. In O'Callahan v. Parker, 395 U.S. 258 (1969), the Supreme Court held that only charges relating to service may be brought against members of the militia without indictments. As a decision, O'Callahan, however, lived for a limited duration and was more a reflection of Justice William O. Douglas's distrust of presidential power and anger at the Vietnam Conflict.[5] O'Callahan was overturned in 1987, when the Court held that members of the militia in actual service may be tried for any offense without indictments.[6] The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment.[7] This means the grand jury requirement applies only to felony charges in the federal court system. While many states do employ grand juries, no defendant has a Fifth Amendment right to a grand jury for criminal charges in state court. States are free to abolish grand juries, and many (though not all) have replaced them with preliminary hearing. Infamous crime Whether a crime is "infamous", for purposes of the Grand Jury Clause, is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed;[8] however, crimes punishable by death must be tried upon indictments. The historical origin of "infamous crime" comes from the infamia, a punishment under Roman law by which a citizen was deprived of his citizenship.[9][10] In United States v. Moreland, 258 U.S. 433 (1922), the Supreme Court held that incarceration in a prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime. In Mackin v. United States, 117 U.S. 348 (1886), the Supreme Court judged that "'Infamous crimes' are thus, in the most explicit words, defined to be those 'punishable by imprisonment in the penitentiary'", while it later in Green v. United States 356 U.S. 165 (1957) stated that "imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year." Therefore, an infamous crime is one that is punished by imprisonment for over one year. Susan Brown, a former defense attorney and Professor of Law at the University of Dayton School of Law, concluded: "Since this is essentially the definition of a felony, infamous crimes translate as felonies."[11] Double jeopardy Main article: Double Jeopardy Clause ... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ...[12] The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment.[13] Jeopardy applies when the jury is empaneled in a jury trial, when the first witness is sworn in during a bench trial, or when a plea is rendered.[14] Prosecution after acquittal The government is not permitted to appeal or try again after the entry of an acquittal, whether a directed verdict before the case is submitted to the jury,[15] a directed verdict after a deadlocked jury,[16] an appellate reversal for sufficiency (except by direct appeal to a higher appellate court),[17] or an "implied acquittal" via conviction of a lesser included offense.[18] In addition, the government is barred by collateral estoppel from re-litigating against the same defense, a fact necessarily found by the jury in a prior acquittal,[19] even if the jury hung on other counts.[20] This principle does not prevent the government from appealing a pre-trial motion to dismiss[21] or other non-merits dismissal,[22] or a directed verdict after a jury conviction,[23] nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute.[24] Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency,[25] including habeas,[26] or "thirteenth juror" appellate reversals notwithstanding sufficiency[27] on the principle that jeopardy has not "terminated". There is also an exception for judicial bribery in a bench trial.[28] Multiple punishment, including prosecution after conviction In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try to punish the defendant for two crimes if each crime contains an element that the other does not.[29] Blockburger is the default rule, unless the legislature intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates,[30] as can conspiracy.[31] The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction.[32] In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was satisfied,[33] but Grady was overruled in United States v. Dixon (1993).[34] Prosecution after mistrial The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith", i.e., goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial.[35] If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial.[36] The same standard governs mistrials granted sua sponte. Prosecution in different states In Heath v. Alabama (1985), the Supreme Court held, that the Fifth Amendment rule against double jeopardy does not prohibit two different states from separately prosecuting and convicting the same individual for the same illegal act. Self-incrimination "Plead the Fifth" redirects here. For the album by the band Taproot, see Plead the Fifth (album). The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to "an accusation or charge of crime", or as involving oneself (or another person) "in a criminal prosecution or the danger thereof".[37] The privilege against compelled self-incrimination is defined as "the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself".[38] To "plead the Fifth" is to refuse to answer any question because "the implications of the question, in the setting in which it is asked" lead a claimant to possess a "reasonable cause to apprehend danger from a direct answer", believing that "a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."[39]