The Fifth Amendment

Introduction

The Fifth Amendment or Amendment V is part of Bill of Rights of the Constitution of the United States. This Amendment protects the American citizenry against abuse by any government authorities in any legal process (Amar, 1998). Amendment V traces its basis to the Magna Carta, which was crafted in 1215 and is part of the English Common Law (Leonard, 2001). This essay explains the Fifth Amendment in detail, why and how it came into being, and how it is applied today.

This amendment states, "None should be compelled to be answerable to a capital or infamous crime not unless he or she has been indicted before a Grand Jury. The only exception to this amendment concerns cases related to the militia or naval forces or land. Cases that also arose due to war, or when the public was endangered are excluded. No person shall be a subject of the same offence and put in "jeopardy of life or limb." It further states that none should be obliged to be an eyewitness against herself or himself. No person should be denied life, property, or liberty without undergoing all procedures of the law. Private properties should never be used without compensation."

History of the Fifth Amendment

In the 16 and 17^th century, many Puritans in England were tortured and forced to accept and reveal information about their fellow associates. In 1637, John Lilburne refused to take an oath. This was the turning point in the history of interrogations (Leonard, 1998).

Grand Jury

This is a composition of a jury of peers. They usually operate in a closed room and deliberate on the case proceedings but under particular guidance in respect to the law. The judge usually guides them and their main work is to return indictments for a majority of criminal cases. The prosecutor can amend indictments that have been made by the Grand Jury but this is only applicable to limited cases. It is important to note that, the Grand Jury does not offer protection to the people who serve in the naval, military force during periods of warfare or peace. Under the Fourteenth Amendment, the Grand Jury cannot be applied to all states (Amar, 2005). This implies that some states do have Grand Jury indictment while others do not. Some states in America have abolished the Grand Jury and replaced it with preliminary hearings.

How the Fifth Amendment is applied in today's Life

Self Incrimination

This amendment serves to protect witnesses from being coerced by law agencies to incriminate against self. They are allowed to supplicate the Fifth Amendment meaning that they are in a position to deny answering any question that can provide a response, which will be evidence that will lead to self-incrimination (Davies, n.d). Such acts of self-incrimination are punishable with fines and penalties. Before this amendment came into place, witnesses were being tortured, forced to take oaths, with the aim of extracting any information. Most people accepted to incriminate themselves because of the pain.

Double Jeopardy

In this amendment, the words "jeopardy of life or limb" implies that a person is protected concerning all indictments that charge him or her with a defined crime. This clause does not bar separate trials by other states or different governments, which could be considered as sovereign. This means that a person can be tried for one crime in one state and still is eligible for prosecution for another crime in another state. If a defendant is acquitted by the Grand Jury, he may not be tried again for the same offence since this is a final decision and the prosecutors cannot go against it. However, if a mistrial occurs, then a defendant is not covered by the double jeopardy clause. The judge is liable to order for a retrial. A defendant cannot be punished twice for the same crime. However, in circumstances where the final sentence has not been handed down to the defendant, the sentence can be increased if there is new evidence. The prosecutor cannot go for capital punishment if in the original trial; the Grand Jury did not give such a sentence. Nonetheless, if the conviction of the defendant is overturned due to flawed procedures, the prosecutor can seek a stiffer penalty against him.

Custodial Interrogation

This amendment blocks the use of any evidence that has been illegally obtained by law enforcers. In Miranda v. Arizona case of 1966, Ernesto Miranda had confessed but the judge disallowed the use of the information because he had not been told about his rights (Davies, n.d). This came to be known as the Miranda Warning. Today, it is in order for any law enforcer to read the Miranda Warning to a person during arrest. 

Refusal to testify in a civil or criminal case

The defendant has the right to remain silent or the "right to silence." This implies that a defendant can refuse to testify to his own defense. On the same note, a civil case can be treated as a criminal offense in relation to the Fifth Amendment. For instance, every person is supposed to file reports of Federal Income Tax. If a defendant does not comply and he is taken to, court he should provide evidence or a report and failure to do so makes it a criminal offence.

Conclusion

The Supreme Court of the United States has pointed out that the Fifth Amendment only serves to protect "natural persons"(Amar, 1998). Corporations do not fall under this category and thus if compelled to produce records, they should do so since they are not covered by this amendment. It is also vital to note that, no person should be deprived of the right to property, life, or liberty without due course of the law. This due course of the law covers both corporations and persons. Self-incrimination rights are inapplicable when a person is offering a testimony before a Self Regulatory Organization for example, National Association of Securities Dealers. The Fifth Amendment is applicable to the United States Federal Government.