The Fifth Amendment

- [Kim] Hi, this is Kim from Khan Academy and today I'm learning more about the fifth amendment to the US Constitution. The fifth amendment is one of the better known constitutional amendments since we frequently hear references to suspects taking the fifth in TV shows and movies. But what does it actually mean to take the fifth? To learn more, I talk to two experts. Donald Dripps is the Warren Distinguished Professor of Law at the University of San Diego School of Law. And Steven Saltzburg is the Wallace and Beverly Woodbury University Professor of Law at George Washington Law School. So, Professor Saltzburg could you talk a little bit about why the framers were interested in choosing to protect these rights in particular? - [Saltzburg] The fifth amendment really addresses four different things. One, it says that generally you can't be charged with a serious crime unless you're indicted by a grand jury. Two, it says you can't be subjected to double jeopardy. Three, it says you can't be compelled to be a witness against yourself. And four, there is this due process right, not to be deprived of life, liberty, or property without due process. If you look at it, the three provisions, the grand jury provision, double jeopardy, and the privilege against self-incrimination all have a common history and that is that in England there was a time in which the crown, the King, basically tried to assert power to bringing people to trial for charges that the King wanted brought. And the grand jury served as a protection between the King and ordinary people. - [Dripps] Most of the provisions in the Bill of Rights are aimed at preventing the recurrence of some specific abuse that had been known to English history. There are different provisions in the fifth amendment that speak to different abuses. The fundamental one and the one that goes furthest back in the legal history, back to Magna Carta and so on is the due process clause. And that clause means that no person can be injured by the government except according to the law of the land and after a fair trial. And that in the very, very distant past back in the 13th century King John had an infamous practice of executing supposed rebellious barons and then holding a solemn trial after the drawing and quartering. And so, that notion of judgment before punishment is really, really fundamental. That's what due process is about at its most basic level. - [Kim] Interesting, so can you say more about the due process clause here? What is due process? - [Saltzburg] Due process is an extraordinarily complicated concept. It means that there are certain procedural and substantive rules that must be honored in the way in which governments approach individuals and entities that they are seeking to regulate. It's not a simple bright line that in order to have due process this is what is required. Due process is somewhat flexible. It tends to provide more protections when individuals are faced with more serious consequences. So, in terms of criminal law it's generally understood that the most severe penalties that we have that can legally be imposed upon people are the death penalty, prison, and jail. And generally, you can't impose any of those except as punishment for a crime. And so, the due process in the criminal arena is largely defined by the Bill of Rights. And some common law understandings that have been carried forward, let me give you a couple of examples. There is nothing in the Constitution that says the government must prove guilt in a criminal case beyond a reasonable doubt, but that is a fundamental part of American law. The Supreme Court has held that that is a part of what due process requires and that is the law throughout the United States not withstanding the fact you don't see it in the Constitution. Similarly, the right to a unanimous jury in a criminal case is also not found anywhere in the Constitution. - [Kim] You mentioned a grand jury, so how is that different from an ordinary jury? - [Dripps] The grand jury served a very delicate role in Founding era times because many, many prosecutions were brought by private persons. There were no police forces of the modern paramilitary 24/7 type and a lot of law enforcement was done by self help and prosecutions were privately funded and sometimes lay people would represent themselves pro se in pressing a criminal prosection. And the grand jury was there to make sure that people weren't subjected to vindictive or malicious prosecutions by ill-spirited neighbors and that sort of thing. The framers probably had in mind a famous case of the Earl of Shaftesbury who was suspected of misdeeds and a grand jury famously refused to indict him. And so, they sought as one among many checks against the possible abuse of power by this new federal government. - [Saltzburg] So, a grand jury is a body that decides whether or not to bring a charge against an individual or an entity like a corporation. The grand jury in federal court happens to be 23 people, but there isn't anything in the constitution that actually says it has to be that number. Unlike a trial by jury which we call a petty jury, the grand jury does not have to be unanimous. It basically decides to bring a charge by majority vote and the grand jury specifically instructed that its job is not to decide guilt or innocence, its job is to decide whether there is sufficient evidence to bring a job. Which we usually say means probable cause to believe that a crime was committed and a particular person committed that crime. So the grand jury's function is to bring a charge, the trial jury's function is to then decide guilt or innocence. - [Kim] Interesting, so how about double jeopardy? This is something that I think we have a maybe rudimentary understanding of in popular culture. What does double jeopardy really mean? - [Saltzburg] If we didn't have a double jeopardy clause the executive branch, if it could persuade grand jury to charge somebody with a crime, could prosecute that person and if the person was acquitted then government could do it again. Bring the same change and do it again until they got a conviction and that meant that an individual could be persecuted rather than prosecuted by continuing charges for the exact same thing. And the basic function of the double jeopardy clause is to basically tell the government, you get one shot. - [Dripps] Trials are very stressful and very expensive, and the government has more resources than the typical defendant does and so one concern is that you would just have the government have power to bankrupt people by retrying the case over and over again. It becomes very, very complicated saying just what the same offense is. The current doctrine is that every statutory crime that includes different factual elements than every other statutory crime arising out of the same course of conduct is a separate crime. - [Kim] Are there an exceptions to double jeopardy, or common misconceptions about how it works? - [Saltzburg] Yes, there are two common misconceptions. One of them is that you can only be tried once for the same criminal activity and the reason you can actually be prosecuted more than once is because in our system, federal government in each state is considered to be a separate sovereign which means the federal government can charge someone with a crime, let's say a drug conspiracy. The State of Virginia or California can also prosecute for the same criminal conduct. The states have their own criminal law to enforce. So technically, someone could be prosecuted let's say by the Commonwealth of Virginia for a drug conspiracy and convicted. And then could be prosecuted again by the federal government or another state for the same criminal activity and be convicted or acquitted and the double jeopardy clause would not be violated. The second thing about double jeopardy is that it only protects you from being prosecuted a second time by the same sovereign for the same crime. It doesn't protect you from being prosecuted for a different crime. Suppose the State of California prosecutes a defendant for murder and the defendant is acquitted, the State of California could then bring a second prosecution for a kidnapping of the same victim that actually occurred before the murder. And because that's a different crime, the double jeopardy clause doesn't bar a separate prosecution. - [Kim] And so there's also a clause here that says an individual shall not be compelled in any criminal case to be a witness against himself. So, this is what we call taking the fifth, right? What does that mean? - [Dripps] So, the fifth amendment privilege is a privilege that can be asserted by anyone who is called to answer by agents of the government and to claim the privilege it has to be the case that the witness is being compelled to speak will suffer adverse consequences if she doesn't answer the questions the government officers want her to answer. Those answers have to tend to incriminate the witness and those answers have to be testimonial, that is to say they have to say in some way they constitute witnessing. - [Saltzburg] Good lawyers, good lawyers will generally advise their clients to take the fifth. That is, claim their privilege against self-incrimination almost any time that the government is seriously investigating them. And the reason is people's memories are often bad, that when people are asked question they may believe that something happened in a certain way but they haven't gone back to review it. And when people make mistakes, simple mistakes, that are made in response to a question may look like people deliberately lied. They may make someone look like they were attempting to deceive investigators. And therefore, when in doubt, individuals who are being investigated have good reason to invoke their privilege against self-incrimination. - [Dripps] Historically, there were two things that the fifth amendment privilege was really supposed to prevent. One was that while the English system relied on grand juries and petty juries and cross examination, confrontational trials, the European system of the Founding era even as late as the end of the 18th century still relied on juridical torture. So, if there was a lot of preliminary proof, if it's super probable cause against a suspect in say France or Germany, the judges will authorize to torture the target into confessing. They didn't want to adopt this inquisitorial practices of continental Europe. And the other great abuse behind the privilege was the Court of Star Chamber's use of the oath ex officio which was witnesses were called before the Star Chamber without knowing what the investigation was about, whether they were a target, what they were suspected of doing, and the first thing that happened was they were obliged to swear an oath. And there was a famous case involving a man named John Lilburne who refused to take the oath and was torturously punished by the Court of Star Chamber for refusing to take that oath they pilloried him and they flogged him, and his case was seen as kind of an example of the kinds of abuses that might be done by asking questions subject to oaths where the answer might incriminate you or expose your to perjury, or expose your soul to eternal consequences. So, those two things were behind the privilege against self-incrimination. The Founders didn't want either of those to come back from the past to haunt the new continent. - [Kim] Say that I have committed a crime, what might happen? Are police or investigators required to tell me about my right not to self-incriminate? - [Saltzburg] Starting 1966, in the case that many people have now heard of Miranda versus Arizona. The United States Supreme Court held that when a person is in custody, that is generally has been arrested and the investigators or prosecutors want to question the suspect they have to give a series of warnings which are widely known as the Miranda Warnings. In short, they have to say to the suspect, "You have the right to remain silent. "Anything you say can and will be used "against you in a court of law. "You have the right to have a lawyer present "during any questioning, and if you cannot afford a lawyer, "one will be appointed for you." - [Dripps] When the suspect is in custody, they have to give the famous Miranda Warning that everybody knows from movies and television and so forth, and that's the one case where the government is required to be proactive. In front of a congressional committee or grand jury investigation, or if you're just a witness at a civil trial, and there's a question that might expose you to criminal liability you have to claim the privilege. You have to say, "I refuse to answer that question "on the grounds that it may incriminate me." When the suspect is under arrest and the police wanna question him, they have a different duty. They have a duty to proactively give him a warning to make sure that he understands his rights, that he doesn't have to say anything to the police, that what he does say could be admissible against him. - [Kim] So, we've learned that the fifth amendment protects citizens from possible abuses of power by the government when an individual is charged with a crime. It requires a grand jury to determine whether an individual should be indicted for a crime. Limits the number of times an individual can be tried for the same crime. Protects people from self-incrimination and requires that the government follow fair procedures in prosecuting the law. To learn more about the fifth amendment visit the National Constitution Center's interactive constitution and Khan Academy's resources on US government and politics.