Saying someone is pleading “the Fifth” in every day conversation is usually understood to mean that they will not make admit to something that could be potentially embarrassing, or could get them in trouble with a friend or a spouse. However, the Fifth is a complex clause in the Constitution that guarantees much more than your right to remain silent.
First, the Fifth Amendment is the foundation of due process, meaning that you cannot be hauled into court without some initial evidence that you could have committed the crime. You have the right to have a grand jury decide if there is enough evidence to warrant a trial, with the exception of people in the military. Military law is an entirely different beast.
Due process means that the government cannot take away someone’s life, property or freedom without following very specific steps – this is kind of where the presumption of innocence comes into play. The Fifth amendment places the burden squarely on the state to build their case before throwing someone in jail. This was in direct response to the fairly tyrannical government in place over the founding fathers prior to the American Revolution. Looking at other, more corrupt countries around the world, you can see how important the Fifth amendment is to the modern judicial system. Due process includes things like grand juries, a hearing to offer bond or bail, the right to a speedy trial, and proper notice of lawsuits if you are being sued.
The ‘takings clause’ is another element – it refers to the inability of the government to come and take your property for its own purposes without just compensation. If you think of any debates in your state about implementing public transportation, such as major train lines across the state, the issue of the takings clause comes up. Usually, train lines must cut through privately owned land by use of an easement, which can divide entire farms. The government cannot arbitrarily decide to do this without fairly compensating the farmer whose livelihood and use of land could be jeopardized.
The Fifth Amendment also prevents what is called ‘double jeopardy.’ Double jeopardy prevents the same defendant from being tried for the same or similar crime after a genuine acquittal or conviction. Some famous examples of the double jeopardy clause in the 5th Amendment being used are Roger Clemens, the baseball great accused of doping, and OJ Simpson, who teased a book called “If I Did It,” which was rumored to include various hypothetical (and grisly) scenes of the murder. After much outrage, the book was shelved.
The most well-known use of the Fifth Amendment is the right to remain silent. You are not to be compelled to make any statement that could incriminate you, and by choosing not to, you cannot be penalized in a criminal court. Most defense attorneys do not wish their defendant clients to take the stand anyway. However, it is important to know that if you assert the Fifth in a civil case, it can negatively affect your overall case and you are sometimes indirectly penalized from the results of your silence. This right is memorialized every time someone is arrested, when police officers are required to say some iteration of the iteration rights, and which I personally have memorized after my childhood spent watching “Cops” marathons.
While it can be easy to make light of the 5th amendment, given its embedded position in American society and colloquial conversation, it is an incredibly powerful guarantee of some of your basic human rights when involved with the American legal system.
