Can someone explain the point of the Fifth Amendment to me please?

I understand what the Fifth Amendment is but (lacking such a principle in English law) I can’t see what purpose it serves other than to allow people to get away with things.

Surely if you’re trying someone for a crime, or if they’re involved in a crime/breach of the law, you want them to be accountable for that. If someone can simply take the fifth when asked to give evidence that involves themselves, doesn’t this make prosecution theoretically impossible? Obviously it doesn’t stop prosecutions taking place regularly because you don’t hear about that, but I’m struggling to understand the thinking behind the Amendment and what it was intended to do when originally introduced.

Grateful for elucidation.

I dug this up…

I have described some of the circumstances of the origin of the privilege guaranteed to us by the Fifth Amendment. As precious as any of their possessions, ideals or beliefs, this concept of the privilege was brought to America by the Puritans, and became a living part of New England common law–later to be incorporated in our Bill of Rights.

This is not a protection for criminals against justice. It was never intended as such. The privilege against self-incrimination was intended specifically to protect people against torture, against being forced to incriminate themselves by either their voice or their silence, in the very manner that they are being so forced by our congressional committees today.

I’m sure more will be added to this by others, but the ammendment prevents someone from being convicted solely on their own (possibly coerced) words. The prosecution must produce physical or witness evidence.

Thanks Ponster, had a quick look at the link and it seems detailed so hopefully all will be clear when I’ve read it :slight_smile:

Does this mean that (in America) one could not be found guilty solely on the basis of a confession?

If you’ve confessed, then you’ve (1) given up [or at least failed to exercise] your 5th amendment right against self-incrimination, and (2) there would be no need to find you guilty in a trial.

But if you can’t be convicted purely on your own testimony (i.e. there must be other evidence/witnesses of some kind) then a confession isn’t enough for someone to be considered guilty of comitting a crime, and certainly not without trial. How are these two squared? I can envisage lots of instances of confessions being extracted under duress and presented as proof of guilt; saying that signing a confession is tantamount to not exercising your rights under the fifth amendment seems to make it useless in that context.

Sorry, I’m in a hole-picking mood today.

There is such a principle in English law. As Blackstone put it:

Commentaries, book 4, Chapter 22 “Commitment and Bail”

For, at the common law, nemo tenebatur prodere seipsum; and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men.


In English law, it’s called the Right to Silence. As you might expect, one of the episodes of the British TV series Rumpole of the Bailey had that phrase as a title. (In that case, a criminal defendant refused to give evidence to his barrister that would have given himself an alibi, for personal reasons, so it wasn’t really such a good example of the principle).

re (2) I’d like to ask a somewhat tangential question as a foreigner: why is that? Is an US court incapable of acquitting a defendant who has confessed and who pleads guilty?

IANAL, but I woiuld think that there are many circumstances where a defendant who has confessed to a crime could be acquitted.

(1) The defendant is found not guilty because of insanity.

(2) The defendant has a lawful excuse, e.g., he killed the guy, but it was in self-defence.

(3) The confession was provably false, e.g., the defendant’s lawyer can prove by an alibi that the defendant could not possibly have comitted the crime.

(4) The statute of limitations has expired for the offense.

Actually, a US court cannot accept a plea of guilty without the proffer of some other corroborating evidence. In other words, no court may accept that someone is guilty only upon his say-so. The prosecution must be able to tell the judge, "Had we gone to trial, we would have proved the crime by the following evidence: … "

There’s got to be some sort of evidence beyond the confession. A guilty plea does mean the accused is giving up the right to have that evidence weighed by a neutral tribunal after being contested by vigorous advocacy; it does not mean that the evidence is unnecessary.

There’s some misunderstanding here. The right is not the right not to be convicted by one’s own words. The right is the right not to be forced to be convicted by one’s own words. If you do confess, then that confession can be used as evidence against you at trial. But you cannot be required to confess. And the way that is protected is by giving you the right not to say anything at all.

tschild’s question involved a defendant who has confessed and who pleads guilty. A guilty plea waives all claims of error except jurisdictional defects. So a defendant who pleads guilty may not generally directly appeal his conviction based on any of the factors listed above. Insanity, privilege, and statute of limitations are all defenses that must be raised by the accused. And obviously “proven false” is a matter of fact to be resolved by the fact-finder at trial.

I was assuming a defendant who has confessed, but who has not pleaded guilty. So I was answering tschild’s first question, “why is that?”, which was in response to Patty O’Furniture’s posting.


I don’t understand where the confusion lies. The Amendment says that a person cannot be forced to incriminate himself. If he chooses to incriminate himself, then that’s fine. So the question becomes, when is someone choosing, and when is someone being coerced? Well, if the cops torture the confession out, then that’s coercion. But if the guy gives it up after an interview, there’s no coercion there. Sure, there are close cases on the margins, but mostly the difference is clear.


It’s clearer when you put it like that. I think I’ll read Ponster’s link before asking any more questions.

And of course, the best way to make sure someone’s confession isn’t coerced is to have his lawyer present, ala his Miranda Rights.

Although, fun fact, contrary to popular belief, a cop doesn’t HAVE to read the suspect his rights, he only has to make sure the guy knows them. Basically, if you are arresting, say, a lawyer, you probably don’t have to read him his rights. That said, they almost always read the rights because it’s just a good habit to have, and it looks good in cop shows.

That IS a fun fact.

I wonder if you could provide a cite for it, though. I bet you can’t.

The Miranda opinion itself clearly states that the Court sought to:

Those concrete guidelines are that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings are:

Can you provide any evidence that, despite these “concrete guidelines,” what the Court really meant was that if you are arresting a lawyer, you probably don’t have to read him his rights?

It’s true that the suspect must eb asked if he understands his rights. It’s not true that Miranda permits the arresting officers to skip the reading if they’re sure the suspect already understands them. A criminal lawyer, a judge, or a police officer that’s been arrested must be given the litany of rights just like anyone else.

Does anyone else get a chuckle out of people from England who don’t quite grasp our Constitution & the reasoning behind some of it?:stuck_out_tongue: :wink: