I know so many people who will talk about their rights, their lack thereof, or even how they can limit others rights. It's interesting that everyone knows that the Fifth Amendment in the Bill of Rights is the Right to not incriminate oneself, mainly from television. "I plead the Fifth" means that we are reserving our Right to keep our mouth shut. It is the reason that the Miranda Warning is now a requirement and police have to quit asking you questions if you refuse to talk to them. However, that really is only a portion of our Fifth Amendment Rights. Yes, Rights, not just a single Right.
"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."
Okay, so if you just read that whole thing, you may or may not realize that "pleading the Fifth" is actually almost the last right in this Amendment. There are actually 4 rights, and it is the third of those four.
So, Fifth Amendment Right #1:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,..."
Basically, no one can be held to answer for any crime without the prosecutor at least presenting an indictment to a grand jury. A capital crime is one that a capital punishment can be prescribed, such as murder or treason. If the death penalty can be applied, then it is definitely a "capital crime". An "infamous crime" is a little more complicated. It is one of those crimes where innocence would not be assumed by dictionary definition. However, by a law school definition, an "infamous crime" is generally anything we classify as felonies now--rape, manslaughter, larceny, felony assault, et cetera. This can vary state to state. What about misdemeanors? This is all applicable as defined over the years as falling under the same umbrella.
So, it says "no person shall be held". Yes, this has been challenged. The Supreme Court ruled under an interpretation of the Fourth Amendment, not even this Amendment, that if arrested without a warrant, the police have 48 hours before they have to have a warrant issued for arrest or let the suspect go. Don't ask me to go into why, just know that although it would sound like it was this Amendment, especially based on television crime dramas, it is a Fourth Amendment Right that the Supreme Court ruled on in 1991. It probably goes back to that Fourth Amendment Right to no search and seizure. You don't have to incriminate yourself, and if the police do not have any evidence that you are involved in a crime, they cannot hold you until you fess up to one. It would sound like it would be the Fifth, right? Well, not really. This Amendment is more about what cannot be done to you instead of what you can or cannot do.
So in general, this cannot be held thing is an accepted 72 hours rule, which doesn't include holidays or weekends either. What's the difference between the 48 hours ruling versus the 72 hours? Not sure. It all sounded like the same thing to me, but I'm a layman. Guess this is why when in doubt it's probably better to ask for a lawyer, not so much so that you need one if you're innocent, but so your rights don't get violated. For capital or other infamous crimes, it's generally more likely the police will investigate and have everything that they need before they ever pick up their suspect. Oh, and that 72 hours rule doesn't come from this Amendment either. It comes from the next Amendment--the Right to a Speedy Trial. So best guess is that the 72 hours is some limit to how slow they can be on getting an indictment after they arrest their suspect. I know. Somehow, it seems like it would come from here too. But this Amendment really tends to focus on what cannot be done to the suspect--not what the suspect has the Right to expect.
"..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;..."
So, here's a personal favorite since I served in the United States Navy. Any military member can tell you that we basically sign a contract that takes many of our guaranteed rights as American citizens away for the good order of our units. However, almost no military member usually understands that our Rights are even taken by the Constitution. The Bill of Rights Fifth Amendment is actually, like I stated earlier, not about the Rights we have, so much as it is about what Rights cannot be taken. So, the Founding Fathers knew that for good military order during wartime or other emergencies the military cannot immediately respond to capital or infamous crimes. So the Skipper, the Old Man, the Captain of the Ship, the General, just may be too busy to deal with the crimes at the time. For military, we all know this means if arrested under suspicious circumstances we could be held in the brig or the stockade or in quarters until the governing officer has the opportunity to review the charges. That could be a while, a long while. It could be until the end of a war years later. No joke, and the Fifth Amendment states it's perfectly acceptable. Next time you thank a service member for their service, remember how much they gave up for your freedom. Not only did they often put themselves voluntarily in peril, but they voluntarily gave up some of their Rights as American citizens. Thank them with that in mind, because not many people, less than 2% of the population, do this voluntarily.
"...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;..."
This is what we refer to as "Double Jeopardy". So to the idiot who told me that one of the Amendments, not the Fifth because "it is Right to Plead the Fifth", well, you were only a quarter correct at best. The Fifth Amendment also covers Double Jeopardy. Double Jeopardy means we cannot be tried again when a jury finds us innocent, even if we're stupid enough to blurt out later that we did it. I bet OJ Simpson thanks God every day for this one. Of course, it's not really meant for a guilty jerk to get off for a capital crime. What it is meant for is to prevent a person from being harassed over and over that is innocent. It sounds ludicrous to think that someone would keep trying someone over and over and over. Yet, during the years of the British Crown, if the reigning Governor or Magistrate of an area didn't get the answer from a "jury" that they wanted, then they would try someone again until they got the "jury" to answer as they wished. The Founding Fathers didn't want our country to become that.
Of course, Double Jeopardy has another edge to that sword--just what it meant in the movie of same name. If a suspect is tried and found guilty of say murder and turns out the person that they were convicted of murdering isn't actually dead, well, yes, getting out of prison and killing them would be perfectly legal. It's really the only loophole in Double Jeopardy. If someone was accused. tried and found guilty of rape, if they got out and raped the person again, it's highly unlikely anyone would ever believe that they didn't commit the rape the first time. So in that case, even if the "rapist" wasn't actually guilty the first time, no way they could prove it and Double Jeopardy would never be applied.
"...nor shall be compelled in any criminal case to be a witness against himself,..."
And there it is. "I plead the Fifth." We cannot be compelled, another words forced, into incriminating ourselves. There were several times in history that people claim they were coerced into confessions. This Amendment says this is wrong. The officers cannot keep plugging at you over and over until you bear witness against yourself. That ruling by the Supreme Court created the Miranda Warning. Another television favorite. However, we can be tricked. Compelled is defined as forced for all intensive purposes. However, if the police lie to you about what they do or do not know and you spill the beans, that is not invading your Fifth Amendment Right. What about the Miranda Warning? That's to make sure that you understand to shut the hell up and anything you say after that is free game. You were warned and therefore anything you say after that is of your own volition. Can you plead the Fifth in any type of deposition? Yes, because depositions can be used as evidence in court.
The Fifth only applies to you. If you know someone else committed a crime and you were not involved, you cannot plead the Fifth to avoid testifying. Also, you cannot plead the Fifth if you've negotiated a plea bargain. So there are various situations that you agree to wave this part of your Fifth Amendment Rights. There have been occasions where plea bargains have come under scrutiny whether they actually invade Fifth Amendment Rights. In general, forget that. The television version makes it pretty easy to understand, and fortunately for most of us, this is not what we will ever have to deal with. Does it apply to say when you are driving and you get pulled over for speeding? Well, yes. Not sure that you want to bother telling an officer that you're pleading the Fifth when he or she asks you if you know how fast you were going. Of course, most driver's licenses are no longer viewed as rights but as privileges. So, yea, just not saying anything because you got pulled over and the officer thinks they smell alcohol may or may not mean you keep your license. You signed this right over when you signed for your license in many states. Like I said the majority of us don't sign over our Bill of Rights to the military, but many of us do it everyday to the state we live in. Welcome to the slippery slope of becoming a military state.
"...nor be deprived of life, liberty, or property, without due process of law;..."
Guess what? That sentence actually includes your stuff. While police often take things with a warrant that are deemed as evidence, if it cannot be tied to a crime, they do not have the right to deprive anyone of their belongings. If the suspect is found innocent, everything is supposed to be returned that was taken as part of the on-going investigation. This is also why it's illegal to lynch someone. No one can be held indefinitely without charges or even with charges--why we have bail. And why they can't technically take your belongings until they tie them to a crime...well, except for that evidence thing.
"...nor shall private property be taken for public use, without just compensation."
Finally, they cannot give your property to anyone without "just compensation", another words "fair payment". So technically, if they take say a home as evidence as proceeds of a crime, then find out that it isn't proceeds but they auctioned it off already--bam, the government has to pay for it. Another flashback to the Crown days pre-American Revolution. It was not uncommon for people to be taken to the gallows without a trial, their property distributed to Loyalists, and even if found innocent, never get their property returned. The Founding Fathers wanted to protect our belongings. But still this is more of a referendum about what the law or public officials cannot do, rather than a Right granted directly to you or I.
Basically, the Fifth Amendment means you cannot be compelled to testify against yourself, yes. No one can force you to give witness against yourself. But it also means charges must be brought legally and formally against any suspect. No one can be tried for the same crime twice. The property of a suspect cannot be taken willy nilly. It definitely cannot be sold or given away without proper conviction of guilt, and if it is without a guilty verdict, the government must provide "just" or fair compensation for the loss.
Aren't you glad you read this? I'm betting some of you never thought it was so much more than just "I plead the Fifth."
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