Due Process: The Fifth Amendment to the U.s. Constitution

This post is the third in our series covering due process in criminal law actions. In the first two posts we addressed the concept of due process rights generally, and the Fourth Amendment to the U.S. Constitution in particular. In this post we will examine the Fifth Amendment.

Although it is only a single paragraph long, this amendment includes a considerable array of protections for criminal defendants in New Jersey, which are outlined below.

Grand jury indictment requirement: The main role of the grand jury is to determine if probable cause exists to bring an indictment against a person. A grand jury is largely an investigative body, and is not the same thing as a criminal trial jury, the responsibility of which is to decide questions of evidentiary fact during the prosecution of a case.

Double jeopardy safeguards: The Fifth Amendment requires that the prosecution take its best shot one time only. If it fails to secure a conviction, it cannot retry the defendant for substantially the same offense.

Not having to testify against yourself: The Fifth Amendment prohibits prosecutors from calling a criminal defendant to the stand to testify, thereby converting the defendant into a witness against himself. The “right to remain silent” that police officers must inform a criminal suspect of at the time he is taken into custody is a reminder of this important Fifth Amendment protection, as are the other “Miranda rights” including the right to consult with an attorney before and during questioning and to have an attorney appointed to him by a court if he cannot afford to hire one, as well as the warning that any statement he makes can and will be used against him at trial.

Note that if the defendant testifies on his own behalf, the Fifth Amendment does not preclude the prosecution from cross-examining him. Also, if the government grants immunity from prosecution in a criminal case, then it can compel a person to testify as a witness even if the testimony would otherwise be self-incriminatory.

The right to due process: A criminal proceeding must be overseen by an impartial judge, and allow the defendant the opportunity to fully present his defense during all phases of his involvement with the criminal justice system – from initial custodial questioning all the way through post-trial appeals.