The Fifth Amendment Right to Remain Silent and to Due Process of Law

The Fifth Amendment to the U.S. Constitution reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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 offence 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.

This amendment guarantees several things, but perhaps most importantly that every person present in the United States has the right to due process of law.  This effectively means that the government, in dealing with everyone, has an obligation to treat everyone fairly, or with “due process.”  It is perhaps this clause that guarantees the largest number of freedoms of any of the first ten amendments.

However, the right for which this amendment is perhaps most famous, is the right against “self-incrimination,” which is popularly known as the right to “remain silent,” or to “take the Fifth.”  This particular aspect of this right took on new life when in 1966 the U.S. Supreme Court decided the case of Miranda v. Arizona, which essentially held that anyone (citizen or noncitizen) in police custody must be told FOUR things before being questioned:

• They have the right to remain silent;

• Anything anyone says while in custody can and will be used against them in a court of law;

• Everyone in custody has the right to an attorney; and

• If any individual cannot afford an attorney, one will be appointed for them.

Whether or not these obligations are followed can have tremendous, life-altering significance for a person accused of a crime.