Fifth Amendment – How It’s Used

Grand jury investigations

Before a person can go to trial when accused of a capital crime a grand jury must be presented with an indictment from the prosecuting attorney. The grand jury then decides whether or not there is sufficient evidence to go ahead with a trial or to drop the charges. The grand jury does not decide guilt or innocence, just whether or not there should be a trial. If they decide there is enough evidence to go to trial they return a "true bill of indictment." This is a key Fifth Amendment right.

Double jeopardy

This is a key Fifth Amendment right that protects individuals accused of committing a crime from being tried for the same crime more than once. Hence, once a defendant is found innocent in court they can never be tried for that crime again. However, if the jury gives back a "hung jury" decision the individual is not considered to have been in jeopardy and they probably will get a new trial. They may be tried in multiple courts such as federal, state, and local if they broke different laws according to those individual jurisdictions.

Freedom from self-incrimination - "pleading the fifth"

Many people are familiar with the phrase, "pleading the fifth." This phrase describes one of the key rights given by the Fifth Amendment. It means that individuals do not have to answer questions in court, to the police, and in many circumstances. They have the right to refuse to answer questions because they might incriminate themselves, whether they are on trial or if they are merely a witness. To incriminate yourself means to say something that might lead to your arrest, conviction, or determination of guilt for a crime that you committed. But, individuals can not refuse to answer embarrassing questions or to withhold evidence that might incriminate someone else.

The Fifth Amendment is included in the reading of your rights or your Miranda rights. When the police begin, "you have the right to remain silent," they are referring to your Fifth Amendment rights.

Immunity may be granted to compel witnesses to speak. Immunity grants individuals a guarantee that their testimony will not be used to prosecute them for any crimes they may have committed. Immunity is a way to protect from the overuse of the Fifth Amendment.

Physical evidence

The Fifth Amendment also extends to the protection of some physical evidence or searches. For example, the police can not rush you to the hospital to pump your stomach in search of evidence such as drugs. It does allows other evidence such as fingerprints, handwriting samples, blood, urine, breath tests to show drugs or alcohol, voice analysis, photographs, or police lineups.

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Fifth Amendment - How It's Used