Could someone explain the 5th amendent to the constitution

It occasionally figures in testimony, often in high profile trials and investigations. We’ve all seen this in countless Hollywood films or in actual real-life cases presented to the public on TV.

A witness who is called to testify can refuse to answer questions, invoking the 5th amendment, if answering would implicate them in any type of criminal activity.

My understanding then is if someone invokes the 5th amendment in a trial while testifying that they are in fact, a priori, confessing to some sort of unnamed criminal activity and are covering up.

I have to believe that the framers of the constitution who supported the Bill of Rights as an amendment to the original document (not all the framers did) were motivated by an attempt to respond to some of the previous British trespasses on the former colonists. How does the 5th amendment fit in? In current usage it does seem to me as simply a way for “criminals” to not testify in court or hearings.

I could be wrong. Please fight my ignorance.

Simple counter-argument: Imagine a defendant who is factually innocent, but the prosecution doesn’t believe it. The right against self-incrimination takes away the prosecution’s ability to coerce a confession (a false one, in this context). It makes the prosecution prove the case, preserving the presumption of innocence.

BTW, coercing a confession would be ethically wrong even if the defendant is factually guilty, so the 5th Amendment is good for that reason too.

I don’t get it:

Prosecution: “You’re guilty, you did it.”
Witness or defendant: “No”

Repeat the above “interrogation” 500 times. Why do we need the 5th amendment in this case?

The idea, in part, is that you can’t be compelled to prove the case against you.

Gov’t: We accuse you of a crime.

Defendant: I didn’t do it (not guilty plea)

Gov’t: Oh yeah, where were you that night?

Defendant: Fuck off. (5th Amendment)

So that the innocent doesn’t get tortured 501 times, so that they say “yes” eventually?

Do you really doubt the power of torture to extract a desired confession? Not accurate information, but the response specifically desired by the interrogator.

The OP is asked in the context of other legal requirements still in place–such as no torture in a courtroom (the venue of the question).

“Not guilty” doesn’t mean “I didn’t do it” (that is to say, it’s not a claim of innocence). It’s more like:

Gov’t: We accuse you of a crime.

Defendant: I make no such admission (not guilty plea).

Unlike the OP, I’m not personally inclined to assume a defendant who remains silent is guilty of something. That’s what the state has to prove.

The protection against self-incrumination as accorded by the fifth amendment did not stem from British trespassers on the former colonists. The concept dates back to earlier English law, as a response to torture being an acceptable technique in obtaining confessions. Even after torture was abolished, judicial proceedings could require defendants to swear oaths of innocence, and anyone refusing to take them were deemed guilty. The concept of a protection against self-incrimination arose as a result of these abuses, and the tradition carried over to the American legal system and was in practice in colonial courts before the Constitution was drafted.

I once pleaded (pled? sounds better) the Fifth repeatedly, each time saying the grand mouthful “According to my rights under the Fifth Amendment of the Constitution…” until the judge told me to knock it off.

Yours is quicker, and better–just think if the Founding Fathers really needed to shorten the Constitution and the Bill of Rights.

Beginning on page 5 of this legal history is an interesting historical tour: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1209&context=wmborj

Recall that historically witnesses would swear an oath before God that they were telling the truth. To avoid eternal damnation, some might have confessed to a crime rather than lie. Preventing calling the accused makes this tactic unavailable.

ETA/cx to the above: the cite to legal history article on the Fifth is to the double jeopardy portion of that amendment–which, as I like so many others, forget is tied in with the most common “take the Fifth” awareness/aspect of the Amendment which is actually in OP. I apologize (although it’s a good article anyway).

Indeed, admitting written evidence at all, let alone giving it such high probative value over oral testimony, was not allowed for centuries in trials.

If the state can’t prove someone’s guilt without the suspect’s help, they shouldn’t be putting them on trial in the first place.

“Can and will be used against you” are salient words in Miranda. At any point on one’s life,even while testifying under oath, he has the right to n0t utter statements that “can and will” be used in the normal practice of prosecution. The Fifth protects withesses from fishing expeditions by prosecutors to uncover more allegations to be used in future unrelated prosecutions.

And your “understanding”, which is shared by others in the public, is why in criminal law the 5th includes the right to just completely STFU from the time you are arrested, and not have to testify at all in your own trial.

Imagine a scenario where there was no fifth amendment and it could be made a crime to refuse to answer a question like “Did you commit the crime?” at your trial.

You’d have three choices:

  1. Confess that you committed the crime.
  2. Lie and commit the additional crime of perjury.
  3. Say nothing and commit the additional crime of refusing to answer the question.

The Fifth Amendment does several different things which have different purposes. It’s important to understand each of them.

Let’s do them in order.

[ol]
[li]Grand jury indictment[/li]
The Fifth Amendment guarantees that the federal government can not prosecute a felony (“capital or otherwise infamous crime”) without an indictment by a grand jury. The grand jury was invented in England and has its roots in magna carta (and even before then) as a way to prevent abuses by monarchs and feudal lords. The point of the grand jury is that a person should not have to go to the expense and trouble of mounting a legal defense to a crime unless the sovereign can convince the accused’s peers that their is sufficient evidence to make a trial necessary.

Most jurisdictions (including a majority of US states) have replaced grand juries with pretrial evidentiary hearings before a judge, but they remain in the federal system.

[li]Double jeopardy[/li]
The Fifth Amendment guarantees that the same person will not be charged twice for the same crime in the same jurisdiction (“to be twice put in jeopardy of life or limb.”) The purpose here is to prevent an abusive prosecutor from harassing a person by repeatedly charging them with the same crime, even if the defendant is found not guilty each time. An acquittal is an absolute bar to retrial on the same charges (in the same jurisdiction), even if new evidence is discovered later, on the theory that society is best served by strong protections against an abusive state at the cost of criminal justice being imperfect. The fifth amendment does not preclude charges from multiple jurisdiction relating to the same set of criminal acts (e.g. a suspect may face both federal and state charges related to the same crime.)

[li]Protection from self-incrimination[/li]
The Fifth Amendment guarantees that a person can not be forced to answer questions against his will, where such an answer might reveal incriminating information, or be viewed as incriminating. (“Taking the fifth.”) It also means that in a criminal case, the prosecutor can not call the defendant as a witness (“compelled in any criminal case to be a witness against himself.”) This also has its roots in English law, based on the theory that the government must prove guilt, and that the defendant need not prove his innocence. This protection is rooted in abuses such as the torture or badgering of criminal defendants.

[li]Due process[/li]
The Fifth Amendment guarantees that people can not be punished (“be deprived of life, liberty, or property”) without “due process,” where “due process” is defined by a long history of statutes and case law. Basically, in the context of criminal justice, it means that evidentiary and trial procedures must be clearly defined, and the government must follow them, instead of acting arbitrarily. That’s a good thing.

[li]Just compensation[/li]
Related to the above, the Fifth Amendment guarantees that if and when the government takes private property, (eminent domain), they must provide compensation to the owner and the compensation must be “just,” meaning, a fair market value for the property.
[/ol]

With regard to the Fifth Amendment, probably what people most often refer to, are the second and third items: double jeopardy and self-incrimination. I think those are quite reasonable protections to have in place in any criminal justice system.

This is not correct in any legal sense (IANAL). The average Joe may interpret it this way but innocent people take the 5th too. I believe that juries are routinely instructed to disregard whether a witness takes the 5th, rather than considering it a negative.

Very good summary. I would add that without the Fifth, the ability to compel a defendant’s testimony could be used to circumvent the double jeopardy prohibition, by allowing the defendant effectively to be retried in the guise of charging him or her with perjury (when he or she denied guilt) at the first trial.

Your post also correctly notes that a legal system could abolish torture while still compelling a defendant’s testimony. They are theoretically separate issues.

Well, uncoerced confessions and statements against interest are admissible, so there is still room for a defendant to aid in his or her own prosecution.

Only indirectly, though, no? If someone gets arrested and blurts out “I did it!”, the prosecution still can’t call him to the stand to force him to repeat this or force him to admit he said it, but can present the testimony of police officers and other witnesses to say "Yes, I heard the defendant say ‘I did it!’ "