Amendment 5 of 27 · Bill of Rights · 1791
Fifth Amendment
Silence, fair process, property
The one-line version
You can't be forced to testify against yourself or tried twice for the same crime, and the government must treat you fairly.
The Fifth Amendment in plain English
The Fifth Amendment contains five separate protections.
Grand jury for serious crimes. You cannot be charged with a serious federal crime unless a grand jury agrees there is enough evidence. A grand jury is a group of citizens who review the evidence. This rule does not apply to the military during active service.
No double jeopardy. You cannot be tried twice for the same crime. If you are acquitted, the government cannot try you again for the same offense.
No self-incrimination. You cannot be forced to testify against yourself in a criminal case. This is the source of the right to remain silent during police questioning.
Due process. The government cannot take away your life, your freedom, or your property without following fair legal procedures.
Just compensation. If the government takes your property for public use, it must pay you a fair price for it.
Original text, 1791
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.
Phrase by phrase
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury
- You cannot be put on trial for a serious federal crime unless a grand jury, a group of citizens who review the evidence, agrees first.
except in cases arising in the land or naval forces
- This grand jury rule does not apply to military cases.
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb
- You cannot be tried or punished twice for the same crime by the same government.
nor shall be compelled in any criminal case to be a witness against himself
- The government cannot force you to say things that could be used to convict you of a crime.
nor be deprived of life, liberty, or property, without due process of law
- The government must follow fair legal steps before it takes your life, your freedom, or your things.
nor shall private property be taken for public use, without just compensation
- If the government takes your property for public use, it must pay you a fair price.
Picture it
Example. Not legal advice.
Police stop you near a store where something was stolen. They start asking where you have been. You can say, "I am going to remain silent." In some states, you may still have to give your name.
What this means for you
Your right to remain silent
The government cannot force you to say things that could be used to convict you of a crime. In practice, this means you can refuse to answer police questions. You can say, "I am going to remain silent."
In Berghuis v. Thompkins (2010), the Court said you must state clearly that you are using this right. Staying quiet without saying so may not be enough. Anything you say before you stop talking can still be used.
Some states require you to give your name if police lawfully stop you. The Supreme Court upheld one of these laws in Hiibel v. Sixth Judicial District Court (2004). State laws differ, so a lawyer or legal-aid hotline can explain the rules where you live.
Miranda warnings and lawyers
Police must give Miranda warnings before they question someone in custody, meaning under arrest or held in a similar way. If they skip the warnings, your answers generally cannot be used as evidence to prove the case against you. The case is not automatically thrown out.
If you are in custody and clearly ask for a lawyer, police must stop questioning you. They cannot start again until a lawyer is present, unless you start the conversation. This rule comes from Edwards v. Arizona (1981).
Double jeopardy
Double jeopardy protection begins once a jury is sworn in. In a trial with only a judge, it begins once the first witness is sworn in. After an acquittal, meaning a not-guilty verdict, the same government cannot try you again for that crime.
If a trial ends without a verdict, such as when the jury cannot agree, a new trial is often allowed. A state and the federal government can each charge you for the same act (Gamble v. United States, 2019). You can also be sued in a civil case, a lawsuit over money, after a not-guilty verdict.
Fair process and your property
Due process means the government must use fair procedures, like notice and a hearing, before it takes your life, freedom, or property. The text says "person," not "citizen." The Court has said due process protects noncitizens inside the United States too (Zadvydas v. Davis, 2001).
If the government takes your property for public use, like a road or a school, it must pay you a fair price. This power is called eminent domain.
Myth check
MythIf police don't read me my rights, my case gets thrown out.
FactPolice must give Miranda warnings only before questioning someone in custody. If they skip them, the usual result is that your answers generally cannot be used as evidence to prove the case against you. The case is not automatically dismissed.
MythStaying silent or "pleading the Fifth" proves you're guilty.
FactUsing the right is not proof of guilt. At a criminal trial, the prosecutor cannot tell the jury that your choice not to testify shows you are guilty.
MythIf a state court finds me not guilty, the federal government can't charge me for the same act.
FactUnder Gamble v. United States (2019), a state and the federal government are separate governments. Each can charge you for the same act under its own laws.
Common questions
What does the Fifth Amendment say in simple terms?
It means you cannot be forced to be a witness against yourself in a criminal case. It also bans trying you twice for the same crime, requires fair legal process, and requires payment when the government takes your property.
What does pleading the Fifth mean?
It means refusing to answer a question because the answer could help prove you committed a crime. Using this right is not proof of guilt. In Griffin v. California (1965), the Supreme Court said a prosecutor cannot tell a jury that a defendant's choice not to testify shows guilt.
Do police have to read me my Miranda rights?
Only before questioning you while you are in custody. Miranda v. Arizona (1966) requires warnings about the right to stay silent and to have a lawyer. If police skip them, your answers generally cannot be used to prove the case against you. The case is not automatically dismissed.
Is staying quiet enough to use my right to remain silent?
No. In Berghuis v. Thompkins (2010), the Supreme Court said a person being questioned must clearly say they are using the right. Simply staying quiet is not enough by itself to make police stop asking questions.
What is double jeopardy?
It means the same government cannot try you twice for the same crime after you are found not guilty or convicted. But in Gamble v. United States (2019), the Supreme Court said a state and the federal government are separate. Each can charge you for the same act.
Can the government take my house?
Yes, but it must pay you. The Fifth Amendment allows taking private property for public use with just compensation, meaning a fair price. In Kelo v. City of New London (2005), the Supreme Court said economic development counted as public use. Many states then passed laws limiting such takings.
Go deeper
The scene · 1791
In the 1630s, an English critic of the king named John Lilburne refused to answer questions under oath about illegal books. A royal court had him whipped and jailed. His case helped build the idea that no one should be forced to accuse themselves. The Fifth Amendment put that idea, and four other protections, into the Constitution.
Back then
The writers knew of English courts that forced people to answer questions under oath and then punished them for their answers. They also feared a government that could keep charging a person until it won. They wanted clear rules the government had to follow before it could punish anyone or take their property.
Words that changed
- “infamous crime”
ThenA crime punished in a shameful way, such as prison with hard labor.
NowCourts treat it as a serious crime, generally one punishable by more than a year in prison.
- “jeopardy of life or limb”
ThenFacing a punishment that could take your life or injure your body.
NowFacing any criminal punishment, including prison or a fine.
- “just compensation”
ThenA fair payment.
NowUsually the fair market value, meaning what a willing buyer would pay for the property.
Who argued what
Broad reading of due process
The word "liberty" protects some basic rights even if the Constitution does not list them, such as marriage and raising your children. Courts should protect these rights from government interference, whatever procedures the government follows.
Narrow reading of due process
"Due process of law" is mainly about fair procedures, like notice and a hearing. Unlisted rights should be protected only if they are deeply rooted in the nation's history. Other questions belong to voters and lawmakers.
Key cases
- 1966
Miranda v. Arizona
Police must warn people in custody of their right to stay silent and to a lawyer before questioning, or the answers generally cannot be used.
- 1981
Edwards v. Arizona
Once a person in custody asks for a lawyer, police must stop questioning until a lawyer is present, unless the person restarts the conversation.
- 2005
Kelo v. City of New London
A city's taking of private homes for an economic development plan counted as a "public use," as long as the owners were paid.
- 2010
Berghuis v. Thompkins
To use the right to remain silent during police questioning, a person must say so clearly; staying quiet is not enough by itself.
- 2019
Gamble v. United States
A state and the federal government can each prosecute a person for the same act, because they are separate governments.
More history and context
The Fifth Amendment was ratified in 1791 as part of the Bill of Rights. At first it limited only the federal government. Through the Fourteenth Amendment, most of its protections now limit state and local governments too. The grand jury rule is the main exception.
The right to remain silent comes from the self-incrimination clause. Miranda v. Arizona (1966) did not create that right, which has existed since 1791. Miranda required police to tell people about the right before questioning them in custody. That is why arrests often come with the words "You have the right to remain silent."
States do not have to use grand juries (Hurtado v. California, 1884). Some states use them for serious crimes. Others use a preliminary hearing, meaning a hearing where a judge decides whether there is enough evidence for a trial.
Courts read due process in two ways. Procedural due process means fair procedures: notice, a hearing, and a neutral judge. Substantive due process means some rights are protected no matter what procedures the government uses. Courts have used it to protect rights not listed in the Constitution, such as marriage and raising your children. Which unlisted rights it protects is one of the most debated questions in constitutional law.
The Takings Clause is the basis for eminent domain, the government's power to take private property for public use. In Kelo v. City of New London (2005), the Court held that a city's economic development plan counted as a public use. After Kelo, many states passed laws limiting takings for economic development.
Actively contested
Courts are still deciding parts of this. Open questions include:
- Which rights not listed in the Constitution due process protects
- What counts as "public use" when the government takes property
- Whether police can force you to unlock a phone with a passcode
- How much process people facing deportation must receive
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