5th Amendment

The term “5th Amendment” refers to the more well-known aspect of the Fifth Amendment to the U.S. Constitution, which states that no one can be forced to testify against himself in court. The 5th Amendment also ensures that no one can be tried a second time for a crime of which they were already acquitted. This is referred to as “double jeopardy.” To explore this concept, consider the following 5th Amendment definition.

Definition of 5th Amendment


  1. The amendment to the U.S. Constitution more commonly known for its provision that no one can be forced to testify against himself.


1791                American Constitution

What is the 5th Amendment?

The 5th Amendment is the amendment to the Constitution that protects people from being forced to testify against themselves. On legal television shows, a character may say “I plead the fifth!” This means that he is invoking his right under the Fifth Amendment to not be forced to say anything on the stand that could incriminate him.

Unfortunately, while it is a person’s right to “plead the fifth,” many believe that someone who pleads the 5th may, in fact, be guilty. Their opinion is that, if he has nothing to hide, why wouldn’t he just testify and clear his name? Why would he make it harder for the attorneys to prove their case unless he had something he didn’t want them to know.

The 5th Amendment also protects people from something called “double jeopardy.” Double jeopardy is the process by which a person who was accused of a crime, and found innocent, would then be charged with that same crime again. The 5th Amendment prevents this from happening. Once a person is found innocent by a jury of his peers, even if new evidence is raised after the fact that proves he is actually guilty, he cannot be tried again for that same crime.

Fifth Amendment Right to Counsel

The Fifth Amendment right to counsel provides that someone who is being interrogated by police has the right to have an attorney present during the process. This goes hand-in-hand with someone being read his Miranda rights (“If you do not have an attorney, one will be provided for you.”). In fact, the Fifth Amendment also requires that someone who is being arrested be read his Miranda rights (More on that later).

The right to counsel section of the Fifth Amendment has been invaluable to those who have been charged with a crime. Entire cases have been thrown out when defendants’ lawyers have shown that their clients weren’t read their Miranda rights upon being arrested.

For example, the 5th Amendment protects a defendant who provides police with information during an interrogation, which happened after not being read his Miranda rights. In such a case, all of the information he gave to the police can be considered inadmissible and thrown out – even if he confessed to the crime.

This is why the right to counsel is so important. Without a good lawyer by his side, a defendant might not even know that certain evidence may be inadmissible, which is crucial to whether his case proceeds or gets thrown out.

Equal Protection Clause in the 5th and 14th Amendments

There is an equal protection clause in the 5th and 14th Amendments that protects U.S. citizens’ right to “life, liberty and property” without interference from the government. For example, the 5th Amendment states:

“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 offense 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.”

This section covers three equal protection clause rights in particular:

  • No one can be put in jail unless a grand jury directs it.
  • No one can be put on trial for the same crime twice.
  • No one can be forced to provide testimony that would incriminate himself in court.

On the other hand, the 14th Amendment says that all persons born in the U.S., or provided with U.S. citizenship, are to be considered U.S. citizens, and no one can make a law that deprives a person of his right to “life, liberty and property” without due process of law. Due process of law is the entitlement that all U.S. citizens have to be treated fairly in the judicial system. Fair treatment includes, for instance, the right to a trial by jury upon being accused of a crime.

Both amendments are similarly worded with regard to their treatment of the equal protection clause. The main difference between them is that the 14th Amendment is more specific with regard to the inclusion of due process. With the 5th Amendment, due process takes place within the court system. With the 14th Amendment, however, due process is a natural right that protects American citizens from government interference with their ability to live their lives, unless what they’re doing is illegal.

For example, the 14th Amendment further protects a person’s right to freedom of speech under the Bill of Rights to the Constitution. Therefore, while a protestor may anger a lot of people by burning the American flag, he has the right to do so under the 14th Amendment. What he is doing is not illegal, and therefore the government cannot interfere.

5th Amendment Example Involving the Origin of Miranda Rights

An example of the 5th Amendment at work can be found in the case that started it all when it comes to Miranda rights: Miranda v. Arizona. In 1966, Ernesto Miranda was arrested in Phoenix, Arizona on evidence that supposedly proved he was involved in a crime involving kidnapping and rape. After an interrogation that dragged on for hours, Miranda confessed to the charges. He also signed a statement acknowledging that he was voluntarily making the confession.

At no point before or during the interrogation was Miranda made aware of the fact that he had the right to have counsel present during the interrogation. He was also unaware of the fact that he had the right to remain silent, and he did not know that the statements he was making could be used against him during his trial. Upon learning this, he objected to the usage of his written confession at trial. He argued that because he was unaware of his rights under the 5th Amendment, his confession must be thrown out as involuntary.

Miranda’s objection was overruled, and he was convicted of both crimes and sentenced to 20-30 years in prison. His written confession played a major role in his conviction. Miranda appealed his conviction, once again citing the involuntarily-made confession. The Arizona Supreme Court denied his appeal.

In June 1966, Miranda brought his case to the U.S. Supreme Court. The Court then had to decide whether the protections afforded to U.S. citizens under the 5th Amendment could be extended to cover police interrogations as well. The Court ruled in Miranda’s favor, 5 – 4. Specifically, the Court held that:

“The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination.”

The Court also included more detailed criteria to support this argument, including:

“The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating, and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained  from the defendant can truly be the product of his free choice.”


“The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system, and guarantees to the individual the “right to remain silent  unless he chooses to speak in the unfettered exercise of his own will,” during a period of custodial  interrogation.”

Related Legal Terms and Issues

  • Coercion – The act of using force or intimidation to ensure compliance.
  • Congress – The legislative branch of the United States federal government, composed of the House of Representatives and the Senate.
  • Conviction – A formal declaration by a jury or judge in a court of law that a defendant is guilty of a crime.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Interrogation – The act of questioning someone, typically the police of a suspect.
  • Jury – A group of people sworn to render a verdict in a trial, based on evidence presented.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.