The Fifth Amendment | The National Constitution Center | US government and civics | Khan Academy
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The Fifth Amendment | The National Constitution Center | US government and civics | Khan Academy

– [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.


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