Your Rights as a Citizen

Bill of Rights: Amendment V

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled to be a witness against himself, nor be deprived of life, liberty or property without due process of law..."

The Fifth Amendment is implicated upon arrest or indictment and follows a citizen throughout the judicial process. Most people associate the Fifth Amendment with "taking the Fifth" that is, the right against self-incrimination. However, the Fifth Amendment specifies many rights that must be afforded to a citizen accused of a crime.

(1) Indictment - if a citizen has been accused of an "infamous" or capital crime (most generally felonies), prosecution against the citizen may not proceed unless the citizen has been indicted by a Grand Jury or they have waived this right.

(2) Double Jeopardy - this provision protects against harassment by preventing citizens from being put on trial more than once for the same offense. Jeopardy only "attaches" when there has been a full trial and final judgment has been reached (i.e. it would not attach where a mistrial was the end result). In addition, double jeopardy includes more than one criminal prosecution growing out the same conduct and is prohibited by the Fifth.

(3) Self-Incrimination - the Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is to refuse to answer a question because the response could form incriminating evidence. A defendant may not be punished for exercising this right and as such when it is exercised in the courtroom; jurors are instructed that they may not draw and inference of guilt from the Fifth.

(4) Due Process - the Fifth also states that no citizen can be tried or convicted of a crime without due process of law. This includes both procedural due process - which really just means follow the laws you have on the books; and substantive due process, which implies the fairness of the proceedings, e.g. a law which is so vague that you wouldn't know if you were breaking it or not, is fundamentally unfair.