What is the 5th Amendment?

Grand Jury

The Fifth Amendment says “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…”

Generally, the function of grand juries is to accuse a potential defendant (or defendants) of a crime.  The institution of a grand jury also protects against unfounded and oppressive prosecution, and allows lay citizens to participate in administering justice.  In the United States, grand juries consist of 12-23 jurors.

Wisconsin grand jury proceedings are secret – specifically in the sense that they’re not open to the public and not advertised.  Prosecutors initiate grand juries in Wisconsin.  They subpoena witnesses to testify in order to gather sufficient evidence to issue a criminal complaint.  Witnesses could include co-defendants, traditional witnesses, or the defendant himself.  Sometimes this requires the government to offer immunity to those witnesses.

A Wisconsin grand jury consists of at least 17 individuals who were selected for jury service.  Individuals selected for jury service do not know ahead of time whether they’ll hear a criminal trial or civil trial (petit jury), a coroner’s jury, or a grand jury ahead of time.   At the completion of the grand jury investigation, a vote occurs.  At least 12 members of the 17 member grand jury is required in order for an indictment to issue.  Like a criminal complaint or a preliminary hearing, the jurors use a “probable cause” standard in determining whether to indict.  The state issues a complaint if grand jury vote succeeds.  If it is not, the case does not proceed criminally and more investigation may occur.

Double Jeopardy

Double jeopardy is certainly a term you’ve heard before.  Whether on television or because you have some history in the criminal justice system, this is a commonly-used phrase.  But do you really understand what double jeopardy is?

The Double Jeopardy Clause in the Fifth Amendment prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ”

There are four distinct prohibitions under Double Jeopardy:

• Firstly, subsequent prosecution after acquittal – The government cannot retry the defendant once jeopardy attaches to a trial unless the case does not conclude.  A case concludes when there’s a verdict, an entry of acquittal, or while re-litigating against the same defense a fact necessarily found by the jury in a prior acquittal.  But the government cannot prosecute the defendant again solely because of the acquittal.
• Secondly, subsequent prosecution after conviction – The government cannot retry the defendant after he is convicted of the crime.
• Thirdly, subsequent prosecution after certain mistrials – The government can retry the defendant after certain kinds of mistrials, including mistrials based on the defendant’s motion (unless the prosecution acted in bad faith) or mistrials on the government’s motion, should the judge determine there is “manifest necessity” for granting the mistrial.
• And finally, multiple punishment in the same indictment – The government can separately try and punish the defendant for two crimes if each crime contains an element the others do not.

Jeopardy attaches upon the impaneling or the jury, when the court swears in the first witness, or when they accept a plea.

Double jeopardy exception: multiple sovereignties

Double jeopardy comes with a key exception. Under the multiple sovereignties doctrine, multiple sovereigns can indict a defendant for the same crime. Federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in individual states and federal courts for exactly the same crime or for different crimes arising out of the same facts.

For example, being a felon in possession of a firearm is both a federal and state crime.  The federal government and the state government can both prosecute the defendant for this same offense.  Importantly, at least in the Milwaukee County area, this frequently does not occur.  When the feds pick up a case, frequently state prosecutors drop theirs.

Self-incrimination

Included in the Fifth Amendment is language that states “…nor shall be compelled in any criminal case to be a witness against himself …”  This is the basis for self-incrimination protections in the Fifth Amendment.  This is an incredibly complex area of law with many rules and exceptions, but this discussion will be an overview.  In the most basic terms, the Fifth Amendment protects individuals from government agents forcing them to incriminate themselves.

In the Miranda v. Arizona ruling, the United States Supreme Court extended Fifth Amendment protections to cover any situation outside of the courtroom that curtails personal freedom. Specifically, any time that a law enforcement officer takes a suspect into custody and subjects him to interrogation, the officer must make the suspect aware of his rights, including: the right to remain silent, the right to have an attorney present during questioning, and the right  to a government-appointed attorney if the suspect cannot afford one.  Miranda does not cover police interrogations that occur prior to custody.  Upon law enforcement’s failure to provide the defendant an opportunity to exercise his rights, one of the frequent remedies is suppressing the evidence against him.

Due process

Due process requires that the government respect all rights, guarantees, and protections contained in the United States Constitution before they can deprive you of your life, liberty, or property.  It includes the basic idea that you will receive a fair, orderly, and just judicial proceeding.  Like many other issues under the 5th Amendment, these rules apply only to federal law.  The Fourteenth Amendment to the United States Constitution applies various (including this) federal requirements to states.

There are two parts of due process: Procedural due process and substantive due process.

Firstly, procedural due process:

Procedural due process focuses on the rules of how things should go.  This includes things like giving proper notice, giving an opportunity to respond to a criminal allegation, and the opportunity to be heard by a neutral decisionmaker.

Possibly Guaranteed Procedures

Judge Henry Friendly, in this article titled “Some Kind of Hearing,” created a list of due process requirements.  The list isn’t mandatory (some of the items are), but it’s certainly important to consider.

1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. The chance to present reasons why prosecutors shouldn’t proceed.
4. The right to present evidence, including the right to call witnesses.
5. Right to know opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based exclusively on the evidence presented.
8. The chance for counsel representation.
9. Requirement that the tribunal prepare a record of the evidence presented.
10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Secondly, substantive due process:

Substantive due process focuses on the rights related to procedure.  It includes things like the right to work in an ordinary job, marry, and to raise children as a parent.  Substantive due process is a principle allowing courts to protect certain fundamental rights from government interference.

Takings clause

The Fifth Amendment of the United States Constitution includes a provision known as the Takings Clause, which states that “private property [shall not] be taken for public use, without just compensation.”  Takings may be physical (like taking property of a private citizen) or constructive (regulatory – the individual loses property because of a regulation).

Criminal law usually does not involve the takings clause.

Contact our criminal defense attorneys for help today

As criminal defense attorneys, we certainly encounter the Fifth Amendment on a regular basis.  While criminal defense implicates certain sections more, it’s absolutely a requirement that we understand the Fifth Amendment entirely.  And we do.  No matter the Fifth Amendment issue you face, we can help.

Contact our law firm immediately.  On top of completely understanding this amendment, we defend individuals facing all charges in Wisconsin.  Whether the case is on the mitigated end and is simply a ticket, or if you’re facing a Class A felony, we can help.  Contact us at (414) 270-0202 and we’ll start talking about your case over the phone.  If you’d like to set up a free, in-person consultation after that, we’ll proceed from there.