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What is the Fifth Amendment of the US Constitution?

Tricia Christensen
Updated: May 17, 2024

The Fifth Amendment is part of the Bill of Rights, the first ten amendments to the US Constitution, aimed at defining what rights citizens had under the newly established United States government. Specifically, this amendment defines some of the rights of an individual accused of a crime, or of individuals whose statements might cause them to be accused of a crime. There are several rights contained in the Fifth Amendment: the right to be free unless indicted by a grand jury, the right to due process, the prohibition of double jeopardy, and the right not to testify against one’s self (self-incrimination).

The right of due process, in particular, is thought greatly influenced by the Magna Carta, established by King John of England in 1215. The Magna Carta established trial by a jury of peers, so that people accused of crimes would get a fair hearing before a court before any sentence was determined. With this idea comes concept of being innocent until proven guilty.

The Fifth Amendment takes this idea from the Magna Carta and obliges the state to prove criminal behavior and to not take any actions against a person suspected of a crime, like hurting him, seizing his property or imprisoning him, unless a crime is reasonably suspected or proved. Once a grand jury determines that enough evidence exists to try a person, he may be held in prison until such a time as an additional jury trial has taken place, which determines innocence or guilt. Another idea that comes with due process is that the state can’t simply hold people in prison for an indeterminate length of time without charging them with a crime.

A second provision in the amendment is that people cannot be charged for the same crime twice, called double jeopardy. If a state fails to get a conviction on the first try, it cannot try again. This can prevent the courts or legal system from harassment of a person through continued accusations of having committed the same crime.

Probably the part that most people hear often is the idea that individuals do not have to self-incriminate or testify against themselves. The right to avoid self-incrimination particularly applies when witnesses come before a court to give testimony that might result in them being charged with a crime. Under these circumstances, people can choose to “plead the fifth.” A person accused of a crime also has the right not to testify at a trial in his or her defense, and not to speak to people arresting them, since any statements they make can “be used against them.”

The rights established in the Fifth Amendment were given broader definition with the passage of the Fourteenth Amendment in 1868. The latter amendment dealt with redefining citizens to include freed African Americans; the earlier amendment had primarily applied to citizens, and slaves or even free African Americans were usually not defined as citizens when the US Constitution was first ratified. By defining a citizen as a person “born or naturalized in the United States,” the US was able to extend “equal protection” of the laws to most people living in the US, including all formerly enslaved African Americans. The Fourteenth Amendment also reiterated the right to due process for all citizens.

America Explained is dedicated to providing accurate and trustworthy information. We carefully select reputable sources and employ a rigorous fact-checking process to maintain the highest standards. To learn more about our commitment to accuracy, read our editorial process.
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Tricia Christensen
By Tricia Christensen
With a Literature degree from Sonoma State University and years of experience as a America Explained contributor, Tricia Christensen is based in Northern California and brings a wealth of knowledge and passion to her writing. Her wide-ranging interests include reading, writing, medicine, art, film, history, politics, ethics, and religion, all of which she incorporates into her informative articles. Tricia is currently working on her first novel.
Discussion Comments
By anon170073 — On Apr 24, 2011

To poster 4. By "loved one" do you mean a wife/husband or more along the lines of a girlfriend? Technically, a spouse is able to plead the fifth in cases dealing with their significant other. It isn't required that you do or do not plead the fifth though, but you cannot be forced to incriminate them.

By anon102225 — On Aug 06, 2010

Can you use the fifth amendment in a simple assault case?

By anon94302 — On Jul 08, 2010

does the fifth amendment apply when you have been ordered to testify against a loved one? Do you have to testify or can you "plead the fifth" to not incriminate a loved one?

By anon56214 — On Dec 13, 2009

My question was and has not been answered yet. How does the 5th Amendment to the US constitution involve the taking of real property without just compensation? Very important and what are the consequences?

By anon56089 — On Dec 11, 2009

Under provisions of the Fifth Amendment, can a defendant be required to produce, before the time of trial, relevant evidence to the prosecution?

By ajzolezzi42 — On Dec 11, 2008

How does the 5th Amendment to the US Constitution involve the taking of Real Property without just compensation?

Tricia Christensen
Tricia Christensen
With a Literature degree from Sonoma State University and years of experience as a America Explained contributor, Tricia...
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