The Fifth Amendment
Silence, due process, and property
Covers grand juries, double jeopardy, self-incrimination, due process, and compensation for property taken by the government.
Ratified 1791 · 3 minute read
Published by Quasi-Legal Institute · Report an error
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.
In plain language
Grand jury
For serious federal crimes, prosecutors must first persuade a grand jury of ordinary citizens that there is enough evidence to bring charges. This requirement applies to federal cases, not most state ones.
The right to remain silent
The clause that most people recognize is the one against self-incrimination. It applies when the government is trying to use your own words to prove a crime. You can refuse to answer questions that could incriminate you, and a jury is not supposed to treat your silence at trial as a sign of guilt.
What Miranda requires
In Miranda v. Arizona (1966), the Supreme Court held that before police question a suspect who is in custody, they must warn the person that they have the right to remain silent, that anything said can be used against them, and that they have the right to a lawyer, including a free one if they cannot afford one.
Both conditions matter: custody and interrogation. Police do not have to read Miranda warnings during a casual conversation, a routine traffic stop, or when someone is not under arrest and is free to leave. When warnings are required and not given, the usual consequence is that the statements cannot be used by prosecutors as part of their main case.
Invoking the right takes a clear statement. In Berghuis v. Thompkins (2010), the Court held that a suspect who stayed mostly silent through a long interrogation had not invoked the right to remain silent, because he never said he was doing so. Saying plainly, “I am remaining silent. I want a lawyer,” is what stops questioning.
What changes for young people
In J.D.B. v. North Carolina (2011), a 13-year-old was questioned by a police officer in a school conference room without being read his rights. The Supreme Court held that a child’s age is relevant to whether he is in custody, because a reasonable child would feel less free to leave than a reasonable adult would.