Fifth Amendment

The Fifth Amendment of the U.S. Constitution 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."

The Fifth Amendment establishes several procedural and substantive constitutional protections governing criminal prosecutions, federal governmental action, and the taking of private property. The Due Process Clause of the Fifth Amendment traces its origins to Magna Carta, while the Grand Jury Clause was developed through English common-law practice. Many scholars break the Fifth Amendment down into the following five distinct constitutional rights:

  1. The right to indictment by the grand jury before any criminal charges for felonious crimes,
  2. A prohibition on double jeopardy,
  3. The privilege against compelled self-incrimination,
  4. The guarantee that no person shall be deprived of life, liberty, or property without due process of law, and
  5. A guarantee that the government cannot seize private property without providing just compensation at the fair market value of the property.

While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has partially incorporated the Fifth Amendment to the states through the Due Process Clause of the Fourteenth Amendment. The right to indictment by the grand jury has not been incorporated, while the prohibition on double jeopardy, the privilege against compelled self-incrimination, and the protection against arbitrary taking of private property without just compensation have all been incorporated into the states.

Grand Juries

Grand juries are a holdover from the early British common law dating back to the 12th century. Deeply rooted in the Anglo-American tradition, the grand jury was originally intended to protect the accused from overly-zealous prosecutions by the English monarchy. In the early phases of the development of the U.S. Constitution, the Founding Fathers decided to retain the grand jury system as a protection against overzealous prosecution by the central government. Although the Supreme Court in Hurtado v. California in 1884 refused to incorporate the grand jury system into all of the states, most states have independently decided to retain a similar form of grand jury, and currently, all but two states (Connecticut and Pennsylvania) explicitly require the grand jury for felony cases.

Congressional statutes outline the means by which a federal grand jury shall be impaneled. Ordinarily, the grand jurors are selected from the pool of prospective jurors who potentially could serve on a given day in any juror capacity. At common law, a grand jury consists of between 12 and 23 members. Because the grand jury was derived from the common law, courts use the common law as a means of interpreting the Grand Jury Clause. While state legislatures may set the statutory number of grand jurors anywhere within the common law requirement of 12 to 23, statutes setting the number outside of this range for a federal grand jury violate the Fifth Amendment. Federal law has set the federal grand jury number as falling between 16 and 23.

A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct "fishing expeditions" or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may return an indictment, informing the court of their decision whether or not to indict the suspect. If they indict the suspect, it means they have decided that there is probable cause to believe that the charged crime has indeed been committed by the suspect.

Double Jeopardy

The Double Jeopardy Clause aims to protect against the harassment of an individual through successive prosecutions of the same alleged act, to ensure the significance of an acquittal, and to prevent the state from putting the defendant through the emotional, psychological, physical, and financial troubles that would accompany multiple trials for the same alleged offense. Courts have interpreted the Double Jeopardy Clause as accomplishing these goals by providing the following three distinct rights: a guarantee that a defendant will not face a second prosecution after an acquittal, a guarantee that a defendant will not face a second prosecution after a conviction, and a guarantee that a defendant will not receive multiple punishments for the same offense. Courts, however, have not interpreted the Double Jeopardy Clause as either prohibiting the state from seeking a review of a sentence or restricting a sentence's length on rehearing after a defendant's successful appeal.

Jeopardy refers to the danger of conviction. Thus, jeopardy does not attach unless a risk of the determination of guilt exists. If circumstances prompt the trial court to declare a mistrial then a retrial is generally permitted only under circumstances recognized by the Double Jeopardy Clause, such as a hung jury or the defendant's consent.

Self-Incrimination

The Fifth Amendment also protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may "plead the Fifth" and not answer if the witness believes answering the question may be self-incriminatory.

In the landmark Miranda v. Arizona 384 U.S. 436 (1966) ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. Therefore, Miranda warnings are required prior to custodial interrogations. Known as Miranda rights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.

Courts have slightly narrowed the Miranda rights, holding that police interrogation or questioning that occurs prior to taking a suspect into custody does not fall within the Miranda requirements, and therefore police are not required to give Miranda warnings to suspects prior to taking them into custody.

If law enforcement fails to honor these safeguards, courts will often suppress any statements made by the suspect as violating their Fifth Amendment protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of their Miranda rights, law enforcement can use the statement against them, provided that the interrogation did not prompt the statement. The Fifth Amendment right does not extend to an individual's voluntarily prepared business papers because the element of compulsion is lacking. Similarly, the right does not extend to potentially incriminating evidence derived from obligatory reports, required regulatory disclosures, or tax returns.

To be self-incriminating, the compelled answers must pose a “substantial and ‘real’ and not merely a ‘trifling or imaginary’” hazard of criminal prosecution.

After Congress passed the Omnibus Crime Control and Safe Streets Act, some believed that the statute overruled the requirements of Miranda by implication. Some scholars also argued that Congress constitutionally exercised its power in passing this law because Miranda represented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. In Dickerson v. United States, 530 U.S. 428 (2000) the U.S. Supreme Court rejected this argument and held that the Warren Court had directly derived Miranda from the Fifth Amendment.

Due Process Clause

The guarantee of due process for all persons requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive any person of life, liberty, or property. Due process generally requires fundamentally fair governmental proceedings prior to the deprivation of one’s protected interests. While the Fifth Amendment only applies to the federal government, the identical text in the Fourteenth Amendment explicitly applies this due process requirement to the states as well.

Courts have come to recognize that two aspects of due process exist: procedural due process and substantive due process. The procedural due process aims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensuring that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the 20th century as protecting those substantive rights so fundamental as to be "implicit in the concept of ordered liberty."

Just Compensation Clause

While the federal government has a constitutional right to "take" private property for public use, the Just Compensation Clause of the Fifth Amendment requires the government to pay just compensation, measured by fair market value at the time of the taking, to the owner of the property. The U.S. Supreme Court has defined fair market value as the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property's good and bad attributes, would pay. The government does not have to pay a property owner's attorney's fees unless a statute provides otherwise.

In 2005, in Kelo v. City of New London, the U.S. Supreme Court rendered a controversial opinion in which they held that a city could constitutionally seize private property for private commercial development, because the redevelopment served a public interest by promoting economic development. However, after the Kelo decision, some state legislatures passed statutory amendments to counteract Kelo and expand protection for the condemned. 

Nevertheless, Kelo remains a valid law under the federal context, and its broad interpretation of "public use" still holds true under the federal protection for the Fifth Amendment right to just compensation.

[Last reviewed in July of 2026 by the Wex Definitions Team]

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