The Fifth Amendment (Amendment V) to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to Magna Carta in 1215. For instance, grand juries and the phrase due process (also found in the 14th Amendment) both trace their origin to Magna Carta.
Mount Pleasant Michigan Lawyer Todd Levitt has written other articles on various constitutional issues and laws.
The Fifth Amendment limits the use of evidence obtained illegally by law enforcement officers.
In June 2010, the Supreme Court ruled in Berghuis v. Thompkins that criminal suspects must now unambiguously invoke their right to remain silent. Unless and until the suspect actually states that she is relying on that right, her subsequent voluntary statements can be used in court and police can continue to interact with (or question) her. The mere act of remaining silent is, on its own, insufficient to imply the suspect has invoked her rights. Furthermore, a voluntary reply even after lengthy silence can be construed as implying a waiver
The Fifth Amendment privilege against compulsory self-incrimination applies when an individual is called to testify in a legal proceeding. The Supreme Court ruled that the right against self-incrimination applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court, and whether the proceeding itself is criminal or civil.
- The Fifth Amendment protects witnesses from being forced to incriminate themselves. To “plead the Fifth” is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties or forfeiture.
Miranda has been clarified by several further Supreme Court rulings. For the warning to be necessary, the questioning must be conducted under “custodial” circumstances. A person detained in jail or under arrest is, of course, deemed to be in police custody. Alternatively, a person who is under the reasonable belief that he may not freely leave from the restraint of law enforcement is also deemed to be in “custody.” That determination of “reasonableness” is based on a totality of the objective circumstances. A mere presence at a police station may not be sufficient, but nor is it required. Traffic stops are not deemed custodial. The Court has ruled that age can be an objective factor. In Yarborough v. Alvarado (2004), the Court held that “a state-court decision that failed to mention a 17-year-old’s age as part of the Miranda custody analysis was not objectively unreasonable”. In her concurring opinion Justice O’Connor wrote that a suspect’s age may indeed “be relevant to the ‘custody’ inquiry” the Court did not find it relevant in the specific case of Alvarado. The Court affirmed that age could be a relevant and objective factor in J.D.B. v. North Carolina where they ruled that “so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test”
The questioning does not have to be explicit to trigger Miranda rights. For example, two police officers engaging in a conversation designed to elicit an incriminating statement from a suspect would constitute questioning. A person may choose to waive his Miranda rights, but the prosecution has the burden of showing that such a waiver was actually made.
A confession not preceded by a Miranda warning where one was necessary cannot be admitted as evidence against the confessing party in a judicial proceeding. The Supreme Court, however, has held that if a defendant voluntarily testifies at the trial that he did not commit the crime, his confession may be introduced to challenge his credibility, to “impeach” the witness, even if it had been obtained without the warning.
In Hiibel v. Sixth Judicial District Court of Nevada, the Supreme Court ruled 5–4 on June 21, 2004 that the Fourth, Fifth, and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police.
Refusal to testify in a civil case
While defendants are entitled to assert that right, there are consequences to the assertion of the Fifth Amendment in a civil action.
The Supreme Court has held that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976
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