The Fifth Amendment, Self-Incrimination, and Double Jeopardy
Background on the Fifth Amendment
The Fifth Amendment (Amendment V) to the United States Constitution, 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 the Magna Carta in 1215. For instance, grand juries and the phrase "due process" (also found in the 14th Amendment) both trace their origins to the Magna Carta.
Magna Carta
Magna Carta is one of the major documents in British history that set forth legal precedents that would later be interpreted as protecting the civil rights of English subjects
The text of the Fifth Amendment reads as follows: "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."
Self Incrimination
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.
Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions.
Protection against self-incrimination is implicit in the Miranda rights statement, which protects the "right to remain silent." The Supreme Court has held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."
Double Jeopardy
The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment. Jeopardy "attaches" when the jury is impaneled, the first witness is sworn, or a plea is accepted.
The government is not permitted to appeal or try again after the entry of an acquittal. The prohibition extends to a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), and an "implied acquittal" via conviction of a lesser included offense.
Blockburger v. United States addresses multiple punishments, including prosecution after conviction. In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. Blockburger is the default rule, unless the legislature intends to depart from it via enacted law; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.
The rule for prosecution after mistrials depends on who sought the mistrial. If the defendant moved for a mistrial, there is no bar to retrial, unless the prosecutor acted in bad faith. For example, the prosecutor goads the defendant into moving for a mistrial because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial. The same standard governs mistrials granted sua sponte.