Fifth Amendment

We the People do ordain and establish this US Constitution

Standards of review

Rational basis review Intermediate scrutiny Strict scrutiny

Other legal theories

Substantive due process State action doctrine

Amendments

I - II - III - IV - V - XIV

Defining moments in law

Civil Rights Cases Citizens United v. Federal Election Commission Coit v. Green Schenck v. United States Vashti McCollum

Interpretation

Originalism Purposive Responsive Textualism

Issues

Civil rights Bill of Rights (United States) Gay rights Commerce rights Free speech v - t - e

The Fifth Amendment to the United States Constitution reads:

Parsing the Fifth Amendment[edit]

• Grand Jury (for capital crimes, consisting of 16-23 members)
• No Double Jeopardy (being tried twice for the same crime)
• Right to Silence (freedom from self-incrimination)
• Due Process (no arbitrary punishment without a fair trial) — 

In US law, the vagueness doctrine states that criminal law must not be vague and must explicitly define the conduct that is punishable. The vagueness doctrine is based on the due process clauses of the Fifth and Fourteenth Amendments.^[1]

• Just compensation (for land seized by the government for eminent domain purposes)

Consequences[edit]

While pleading the Fifth in criminal cases can be advantageous to avoid self-incrimination, it is much less likely to be advantageous in civil cases because the judge may allow the jury to draw an inferences of guilt in civil cases.^[2] It is for this reason that pleading the Fifth "in a civil case in federal court is never helpful, is rarely harmless, and is typically very damaging — indeed, it’s often fatal to the party’s claims or defenses."^[3] Some states have more stringent standards than federal courts that do not allow drawing negative inference in civil cases either.^[3] But even in criminal cases, pleading the Fifth can be disadvantageous because the witness cannot subsequently provide testimony on the same subject in support of their case.^[2]

References[edit]