Criminal Constitution: The Fifth Amendment

January 1, 2021 | By Shane Phelps Law
Criminal Constitution: The Fifth Amendment

Welcome back to our series on the Constitution and how it applies to criminal law. In this entry, we will be covering the infamous Fifth Amendment.


For most of us, the Fifth Amendment brings to mind crime shows where the defendant “pleads the fifth” to avoid answering questions. This has shaped the Fifth Amendment into no more than a fancy legal way of saying “no.”

However, the Fifth Amendment does so much more than that. In fact, this amendment alone covers critical legal concepts like:

  • Double jeopardy
  • Self-incrimination
  • Due process
  • Compensation for private property
  • The right to a grand jury
  • The right to life, liberty, and property

As with most nuanced topics, TV shows fail to paint a complete picture of the Fifth Amendment. Without this vital piece of legislation, most of our criminal justice system would be lost or entirely corrupt. That said, let’s take a closer look at the Fifth and all it can do for you.

“The Juice” Puts the ‘J’ in Double Jeopardy

If you are not familiar with the concept of double jeopardy, it’s essentially a legal protection against double dipping – no one can be tried for the same crime twice.

For example, you were charged with theft three years ago, but the court dismissed the case. According to the Fifth Amendment, you cannot be tried for theft again. Instead, the prosecution may attempt to charge you for embezzlement, tax evasion, etc. as a work-around to avoid double jeopardy.

Another way to understand double jeopardy is with the O.J. Simpson case. If you’ve never heard of the O.J. Simpson trial, here’s the short version: O.J. was accused of murdering his ex-wife Nicole Brown Simpson and friend Ron Goldman in 1995 but was found not guilty.

Because Simpson was tried and found not guilty, any efforts to send him to court for the murders of Nicole and Goldman would be in violation of the double jeopardy rule.

The complicated issue with this case is that not only did Simpson himself write a book called If I Did It where he essentially confesses to the double murder but there has been strong evidence recovered since his trial that may have changed the outcome of his case entirely. However, since he was already tried, the evidence and quasi-confession can’t be used against him in court.

Due Process and America’s Dad

In addition to double jeopardy, the Fifth Amendment also lays the groundwork for due process – the right to fair and thorough legal proceedings.

Due process is the very foundation of our legal system. It gives you the right to a trial if you’re accused of a crime and awards you the benefits of fair procedure (a jury, judge, and your day in court). There’s a lot of discussion surrounding the true meaning of due process, but to better understand the concept at face value, we introduce you to America’s Dad.

Bill Cosby played Cliff Huxtable on The Cosby Show for eight seasons from 1985-1992. Audiences laughed and cried as the Huxtable family navigated relatable family conundrums and tackled difficult topics like teen pregnancy and dyslexia.

Then, in 2015, things came tumbling down for Cosby after over 50 women came forward claiming sexual assault. Many of them stated that Cosby drugged them and proceeded to assault them while they were unconscious and used his reputation to cover it up. Cosby was sentenced to three to ten years in state prison on September 25, 2018.

In another shocking turn, the octogenarian was released from State correctional Institution Phoenix in Montgomery County on June 30, 2021 after the Pennsylvania Supreme Court overturned his conviction based on the lack of due process in his case.

Before Cosby’s initial trial, the prosecutor offered a deal where he would confess to the assault of Andrea Constand to avoid a criminal trial and prosecution. According to Cosby’s defense team, Cosby held up his end of the deal but was thrown into criminal proceedings with no warning. They claim that disregarding the plea deal is in direct violation of his right to fair legal proceedings.

His team used the concept of due process (found in the Fifth Amendment) to push for his release and won.

Self-Incrimination and the Power of Silence

As we mentioned in the introduction, most people associate the Fifth Amendment with the word “no.” If an officer asks you a question, you can “plead the Fifth” and avoid answering the question altogether.

This is somewhat true, but invoking this amendment is exercising your right to avoid self-incrimination, or implicating yourself during an investigation. There are many opportunities throughout the criminal process to accidentally incriminate yourself, yet many self-incriminators do so during arrest.

For example, you’re arrested by police and charged with a bank robbery. You are (understandably) panicking and, in the moment, you say something like: “It wasn’t me! I didn’t steal anything, officer! My friend was the one who stole the money, I just drove the car!”

While you deny robbing the bank, you’ve admitted to aiding and abetting. This is still a criminal offense, one that you could even face jail time for. There’s a reason why law enforcement officers are expected to inform you that “anything you say can and will be held against you” — they are telling you that if you incriminate yourself, that admission of guilt is essentially a guilty plea that will be brought up in court.

Self-incrimination can also happen during questioning or on the stand. It’s critical that you avoid admissions of guilt because defending your case may be a longshot. In these cases, the defense may only be able to negotiate for a lesser sentence instead of a dismissal.

However, if you exercise your Fifth Amendment right, you remove the possibility of self-incrimination altogether. It’s always best to avoid responding to police until you have an attorney present. An attorney can cover you and provide answers that won’t incriminate you before the trial.

It’s Foundational

From due process to double jeopardy and self-incrimination, the Fifth Amendment is instrumental to the criminal process. Without it, people accused of a crime wouldn’t have justice at all. So, next time you’re watching a show where a character “pleads the fifth,” think about how much power that statement really has.

Have you ever considered the importance of a jury or wondered how long it takes for a case to go to trial? Don’t miss the next entry in our Criminal Constitution Series!