The Fifth Amendment

  • Published
  • By Airman 1st Class Stephanie Englar
  • 14th Flying Training Wing Public Affairs
COLUMBUS AIR FORCE BASE, Miss. --  When watching legal dramas on late night television you'll often hear the phrase, "I plead the Fifth!" right before they ask for a lawyer. Most Americans know that the Fifth Amendment protects an individual from self-incrimination, but there is much more to the amendment. The Fifth Amendment is comprised of six different clauses, which this article will cover along with why the Colonial Americans found this a necessary part of the Bill of Rights.

The Fifth Amendment allows an individual the right to a jury of their peers. The Grand Jury clause ensures an individual cannot be charged with a criminal federal offense without an indictment by a jury. As the grand jury system developed in Colonial America, it protected innocent individuals who faced baseless charges initiated by political, religious, and personal adversaries, because the clause required that a group of impartial citizens would review the evidence first.

For military members, there is no Grand Jury in court-martial cases under the UCMJ. However, Article 32, UCMJ, does provide for a pretrial hearing in general court-martial cases which serves the same purpose as the constitutional Grand Jury requirement. An Article 32 hearing is presided over by a judge advocate to hear the evidence against the accused military member, and any evidence which the accused's defense counsel wishes to submit. Following the hearing, the Article 32 officer submits a report with analysis as to whether sufficient evidence exists to refer the case to a court-martial.

The UCMJ grants accused personnel many of the same rights as the Fifth Amendment including: the right to be informed of the charges against them, the right to have an attorney and protection from double jeopardy and self-incrimination. The exception to the Grand Jury clause came about because the Framers of the Constitution felt that the civilian courts would not understand decisions made in the heat of battle, and would not know how to make the appropriate decisions.

The Double Jeopardy clause guarantees Americans will not be charged twice for the same crime. It was designed so that once a person was declared innocent or guilty, they could not be taken back to court multiple times until the government received the verdict that it wanted. According to the founders, once a verdict was made, it was final and a person could not be tried again. An exception to this is the Dual Sovereignty Doctrine which states that the federal and state governments can both prosecute an individual for a crime, if that crime falls under both jurisdictions' laws.

The most commonly known clause in the Fifth Amendment deals with self-incrimination. Its creation stems back to medieval England, where torture was used to get individuals to incriminate themselves. Angry citizens finally had enough and claimed it was against their rights, and that became the basis for the Self-Incrimination clause. Today, the clause gives people the right to not testify against themselves. However, it is limited to only verbal or written testimony, and does not cover physical evidence such as fingerprints or DNA samples. The clause pertains solely to the individual, meaning corporations cannot "plead the fifth" in order to keep quiet.

To be punished for a crime, there must be evidence that a written law has been violated. The Due Process clause claims that every individual must be treated fairly and can only be punished for crimes when there are written laws against them.

During the Revolutionary War, the colonial citizens had property that was confiscated by the British government and never repaid. The people were outraged, and when the Bill of Rights was created, eminent domain was a popular topic and became the final clause to the Fifth Amendment. The Eminent Domain clause states that if the government needs to take an individual's property due to construction, that they must pay a reasonable amount of money to that individual. This also applies to property that is damaged during construction.

As you can see, the Fifth Amendment presides over many liberties that we have today. With a focus on fair and equal treatment to all, the Fifth Amendment has had an effect on many court cases since its creation in the Bill of Rights in 1791. This article is just an overview of the different clauses to the Fifth Amendment, and only explains a small portion of the vastness of the amendment.