The Fifth Amendment | The National Constitution Center | US government and civics | Khan Academy

Hi, this is Kim from Khan Academy, and today I'm learning more about the Fifth Amendment to the U.S. Constitution. The Fifth Amendment is one of the better-known constitutional amendments since we frequently hear references to suspects taking the Fifth in TV shows and movies. But what does it actually mean to take the Fifth?

To learn more, I talked to two experts. Donald Drips is the Warren Distinguished Professor of Law at the University of San Diego School of Law, and Steven Salzburg is the Wallace and Beverly Woodbury University Professor of Law at George Washington Law School.

So, Professor Salzburg, could you talk a little bit about why the framers were interested in choosing to protect these rights?

The Fifth Amendment really addresses four different things. One, it says that generally, you can't be charged with a serious crime unless you're indicted by a grand jury. Two, it says you can't be subjected to double jeopardy. Three, it says you can't be compelled to be a witness against yourself. And four, there is this due process right not to be deprived of life, liberty, or property without due process.

If you look at it, the three provisions—the grand jury provision, double jeopardy, and the privilege against self-incrimination—all have a common history. In England, there was a time when the crown, the king, basically tried to assert power to bring people to trial for charges the king wanted brought. The grand jury served as a protection between the king and ordinary people. Most of the provisions in the Bill of Rights are aimed at preventing the recurrence of specific abuses that had been known to English history.

There are different provisions in the Fifth Amendment that speak to different abuses. The fundamental one, and the one that goes furthest back in legal history, back to Magna Carta and so on, is the due process clause. That clause means that no person can be injured by the government except according to the law of the land and after a fair trial.

In the very, very distant past, back in the 13th century, King John had an infamous practice of executing supposed rebellious barons and then holding a solemn trial after the drawing and quartering. So that notion of judgment before punishment is really, really fundamental. That's what due process is about at its most basic level.

Interesting! So can you say more about the due process clause here? What is due process?

Due process is an extraordinarily complicated concept. It means that there are certain procedural and substantive rules that must be honored in the way in which governments approach individuals and entities that they seek to regulate. It's not a simple bright line; that in order to have due process, this is what is required. Due process is somewhat flexible. It tends to provide more protections when individuals are faced with more serious consequences.

So, in terms of criminal law, it's generally understood that the most severe penalties that we have that can legally be imposed upon people are the death penalty, prison, and jail. Generally, you can't impose any of those except as punishment for a crime. The due process in the criminal arena is largely defined by the Bill of Rights and some common law understandings that have been carried forward.

Let me give you a couple of examples. There is nothing in the Constitution that says the government must prove guilt in a criminal case beyond a reasonable doubt, but that is a fundamental part of American law. The Supreme Court has held that this is part of what due process requires, and that is the law throughout the United States, notwithstanding the fact that you don't see it in the Constitution. Similarly, the right to a unanimous jury in a criminal case is also not found anywhere in the Constitution.

You mentioned a grand jury. So how is that different from an ordinary jury?

The grand jury served a very delicate role in founding era times because many, many prosecutions were brought by private persons. There were no police forces of the modern paramilitary 24/7 type, and a lot of law enforcement was done by self-help. Prosecutions were privately funded, and sometimes laypeople would represent themselves pro se in pressing a criminal prosecution.

The grand jury was there to make sure that people weren't subjected to vindictive or malicious prosecutions by their ill-spirited neighbors. The framers probably had in mind the famous case of the Earl of Shaftesbury, who was suspected of misdeeds, and a grand jury famously refused to indict him. They saw it as one among many checks against the possible abuse of power by this new federal government.

A grand jury is a body that decides whether or not to bring a charge against an individual or an entity like a corporation. The grand jury in federal court happens to be 23 people, but there isn't anything in the Constitution that actually says it has to be that number. Unlike a trial jury, which we call a petty jury, the grand jury does not have to be unanimous. It basically decides whether to bring a charge by a majority vote.

The grand jury is specifically instructed that its job is not to decide guilt or innocence; its job is to decide whether there is sufficient evidence to bring a charge, which we usually say means probable cause to believe that a crime was committed and a particular person committed that crime. So, the grand jury's function is to bring a charge, and the trial jury's function is to then decide guilt and/or innocence.

Interesting! So how about double jeopardy? This is something that I think we have a maybe rudimentary understanding of in popular culture. What does double jeopardy really mean?

If we didn't have a double jeopardy clause, the executive branch, if it could persuade a grand jury to charge someone with a crime, could prosecute that person. If the person was acquitted, the government could do it again, bring the same charge, do it again until they got a conviction. That meant that an individual could be persecuted rather than prosecuted by continuing charges for the exact same thing.

The basic function of the double jeopardy clause is to basically tell the government, "You get one shot." Trials are very stressful and very expensive, and the government has more resources than the typical defendant does. So, one concern is that you would just have the government have the power to bankrupt people by retrying the case over and over again.

It becomes very complicated saying just what the same offense is. The current doctrine is that every statutory crime that includes different factual elements than every other statutory crime arising out of the same course of conduct is a separate crime.

Are there any exceptions to double jeopardy or common misconceptions about how it works?

Yes, there are two common misconceptions. One of them is that you can only be tried once for the same criminal activity. The reason you can actually be prosecuted more than once is that in our system, the federal government and each state are considered to be separate sovereigns. This means the federal government can charge someone with a crime, say, a drug conspiracy. The state of Virginia or California can also prosecute for the same criminal conduct. The states have their own criminal law to enforce.

So technically, someone could be prosecuted, let's say by the Commonwealth of Virginia, for a drug conspiracy, convicted, and then could be prosecuted again by the federal government or another state for the same criminal activity and be convicted or acquitted. The double jeopardy clause would not be violated.

The second thing about double jeopardy is that it only protects you from being prosecuted a second time by the same sovereignty for the same crime. It doesn't protect you from being prosecuted for a different crime. Suppose the state of California prosecutes a defendant for murder, and the defendant is acquitted. The state of California could then bring a second prosecution for the kidnapping of the same victim that actually occurred before the murder. Because that's a different crime, the double jeopardy clause doesn't bar a separate prosecution.

So there's also a clause here that says an individual shall not be compelled in any criminal case to be a witness against himself. So this is what we call taking the Fifth, right? What does that mean?

The Fifth Amendment privilege is a privilege that can be asserted by anyone who is called to answer by agents of the government. To claim the privilege, it has to be the case that the witness is being compelled to speak and will suffer adverse consequences if she doesn't answer the questions the government officers want her to answer. Those answers have to tend to incriminate the witness, and those answers have to be testimonial. That is to say, they have to, in some way, constitute witnessing.

Good lawyers generally advise their clients to take the Fifth, that is, claim their privilege against self-incrimination almost any time that the government is seriously investigating them. The reason is people's memories are often bad. When people are asked questions, they may believe that something happened in a certain way, but they haven't gone back to review it. When people make mistakes—simple mistakes that are made in response to a question—may look like people are deliberately lying. They may make someone look like they were attempting to deceive investigators.

Therefore, when in doubt, individuals who are being investigated have good reason to invoke their privilege against self-incrimination. Historically, there were two things that the Fifth Amendment privilege was really supposed to prevent. One was that while the English system relied on grand juries and petty juries and confrontational trials, the European system of the founding era, even as late as the end of the 18th century, still relied on juridical torture.

If there was a lot of preliminary proof against a suspect, in say France or Germany, the judges were authorized to torture the target into confessing. They wanted to adopt the inquisitorial practices of continental Europe. The other great abuse behind the privilege was the court of Star Chamber's use of the oath ex-officio, where witnesses were called before the Star Chamber without knowing what the investigation was about, whether they were a target, or what they were suspected of doing.

The first thing that happened was they were obliged to swear an oath. There was a famous case involving a man named John Wilburn, who refused to take the oath and was torturously punished by the court of Star Chamber for refusing to take that oath. They pilloried him and flogged him, and his case was seen as an example of the kinds of abuses that might be done by asking questions subject to oaths where the answer might incriminate you or expose you to perjury or expose your soul to eternal consequences.

So those two things were behind the privilege against self-incrimination that the founders didn't want either of those to come back from the past to haunt the new continent.

If I say that I've committed a crime, what might happen? Are police or investigators required to tell me about my right not to self-incriminate?

Starting in 1966, in the case that many people have now heard of, Miranda versus Arizona, the United States Supreme Court held that when a person is in custody—that is, generally has been arrested—and the investigators or prosecutors want to question the suspect, they have to give a series of warnings. These are widely known as the Miranda warnings.

In short, they have to say to the suspect, "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have a lawyer present during any questioning, and if you cannot afford a lawyer, one will be appointed for you."

When the suspect is in custody, they have to give the famous Miranda warning that everybody knows from movies and television. That’s the one case where the government is required to be proactive. In front of a congressional committee or a grand jury investigation—or if you're just a witness at a civil trial and there's a question that might expose you to criminal liability—you have to claim the privilege. You have to say, "I refuse to answer that question on the grounds that it may incriminate me."

When the suspect is under arrest and the police want to question him, they have a different duty. They have a duty to proactively give him a warning to make sure that he understands his rights—that he doesn't have to say anything, and that what he does say could be admissible against him.

So we've learned that the Fifth Amendment protects citizens from possible abuses of power by the government when an individual is charged with a crime. It requires a grand jury to determine whether an individual should be indicted for a crime, limits the number of times an individual can be tried for the same crime, protects people from self-incrimination, and requires that the government follow fair procedures in prosecuting the law.

To learn more about the Fifth Amendment, visit the National Constitution Center's interactive constitution and Khan Academy's resources on U.S. government and politics.