Vail Law: What does ‘taking the Fifth’ mean in a real-life court of law? (column)
January 23, 2018
If you are a fan of crime shows, then you are, no doubt, an expert in the Fifth Amendment. I'll sit back as you recite it aloud. There; done?
Presumably, what you recited is: "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; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Nah. More likely, what you detailed was the middle bit, the part about bearing witness against oneself. It's sort of like the New England Patriots; everyone knows who Tom Brady is, but unless you're a rabid football fan — or a displaced New Englander — your knowledge falls off from there. But these other bits are important, too. However, let's first focus on the famous part, the part celebrated in the tabloids and on the screen, the part about self-incrimination.
But first, as is my habit in these columns, a skosh of context.
“The Fifth Amendment protects a person from being compelled to incriminate him or herself. In plain English, one may not be compelled to implicate oneself in a crime or in exposing oneself to criminal prosecution. One may, instead, remain as tight-lipped as a mummy. The government
— without your cooperation
— must prove its case.”
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The Fifth Amendment, being number five, is — this takes very little math skill — part of the first 10 amendments. In fact, it sits snugly in the middle, right between the Fourth (the right to be secure from unreasonable searches and seizures, the protection against arbitrary arrest and the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps and other forms of surveillance) and the Sixth (the right to a speedy trial, to confront and have witnesses and the right to legal counsel). These 10 — one for every finger of your hands, which makes counting them up a fairly simple task — are known as the Bill of Rights.
A powerful 10
The Bill of Rights are power-packed little devils and were introduced to the American Congress in 1789. The purpose of these 10 Amendments is to protect the individual rights to property, "natural rights" as individuals and limit the government's power over its the citizens. It would not be too much to claim that these first 10 Amendments constitute the most fundamental of American rights.
In very, very abbreviated fashion, the first 10 provide for:
1: Freedom of speech, religion, press and assembly.
2: Right to keep and bear arms.
3: The conditions for quartering soldiers.
4: Right of search and seizure.
5: Provisions regarding the prosecution of an individual.
6: Right to a speedy trial.
7: Right to trial by jury.
8: Provision against excessive bail and cruel punishment before trial.
9: Rule of construction regarding the constitution; and
10: The rights of the states under the Constitution.
So, as you can see, they're (in Trump-talk), sort of "biglies."
Let's drill down now to number five. As noted above, the "star" of the show is the right to zip your lips. In "Dragnet"-speak, "you have the right to remain silent." In a criminal prosecution directed against you, you cannot be compelled to be a party to your own execution. The Fifth Amendment protects a person from being compelled to incriminate him or herself. In plain English, one may not be compelled to implicate oneself in a crime or in exposing oneself to criminal prosecution. One may, instead, remain as tight-lipped as a mummy. The government — without your cooperation — must prove its case.
More to the story
But as the well-known huckster trope goes, "But wait, there's more." The Fifth does more work than simply this. Among the yeoman's rights afforded under the Fifth Amendment, are the right to a grand jury, protection against "double jeopardy" and requirement that "due process of law" be part of any proceeding that denies a citizen "life, liberty or property." Last, but certainly not least, the Fifth requires the government to compensate citizens when it takes private property for public use.
This is a load o' rights but let's consider them in summary fashion.
The right to a grand jury simply means, at least in certain cases, a group of your peers recommends whether criminal charges should be brought. The protection against double jeopardy means who can't be charged twice for a crime. Once acquitted you are done. The government can't say, "Oops, we lost, so let's try this again." The right to due process provides that normal procedures must be followed before someone can be deprived of life, liberty or property. And lastly, if the government takes your property for public use (by the exercise of eminent domain), then it has to pay you fair value for what is taken.
Heady stuff, this Fifth Amendment. And packed in its scant 108 words (tweet-worth in its brevity) with quite a punch.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.