What Are My Fifth Amendment Rights?


What Are My Fifth Amendment Rights?

One of the unique things about living in the United States is the U.S. Constitution. As U.S. citizens, we have many rights that are part of our lives. The Fifth Amendment to the U.S. Constitution are rights that apply to everyone. These rights apply to us, particularly when we have been arrested or charged with a crime. Here are the most common Fifth Amendment rights that typically apply to defendants.


Double Jeopardy Clause

The double jeopardy clause is designed to protect citizens from undue harassment by prosecuting someone more than once for the same crime. This prevents a person from going through another trial if acquitted. A person should not have to face the financial, emotional, and psychological problems that might accompany a subsequent trial for the same offense. The double jeopardy clause specifically provides three rights:

  • That there will be no second prosecution following a conviction
  • That there will be no further prosecution after an acquittal
  • That there will not be subsequent punishments for the same offense

Double jeopardy attaches only when there is a potential for conviction. It does not apply when a mistrial occurs. In that situation, there has not been a complete prosecution and therefore, another trial may take place.


Charlotte Criminal Lawyer Brad Smith answers the question: “What are the long-term effects of being convicted of a crime?”


Privilege Against Self Incrimination

A person is not required to provide testimony that could incriminate them in a crime. Self-incrimination occurs when someone implicates themselves in a crime, whether intentionally or unintentionally. The Fifth Amendment protects defendants from having to testify in a case. You may have heard someone “take the fifth” when asked a question. This means they will not answer the question on the basis of protection against self-incrimination. A person can waive their rights and thus provide testimony.


Protections extend to interrogations by police in a limited manner. These rights have come to be known as “Miranda Rights.” These rights include the right to remain silent, the right to have an attorney present during questioning, and the right to the appointment of an attorney if you cannot afford to hire one. Law enforcement is required to provide you with these rights after an arrest before they ask you questions.



Due Process

If you are arrested for a crime, the Fifth Amendment guarantees the protection of your rights throughout the process. The important aspects of due process are a fair, orderly, and just judicial procedure. The due process clause of the Fifth Amendment applies to federal prosecutions, the states also provide due process through the Fourteenth Amendment. You have the right to a fair trial and the right to be heard. You must receive proper notification of litigation in a timely manner.


Indictment By Grand Jury

The Fifth Amendment provides you with the right to a grand jury for some crimes. A grand jury is a group of jurors impaneled with the goal of making determinations about potential cases. A grand jury will review the matter and determine whether they feel that a crime was likely committed and that further legal action is warranted. This applies only to specific crimes. Your attorney will explain the process in more detail if it applies to you.


If you were charged with a crime, you need to know your rights. An experienced criminal defense attorney will work to vigorously defend your rights. Contact our legal team at Arnold & Smith, PLLC, at (608) 784-8310 to schedule a consultation to discuss your case.






The criminal defense attorneys at Arnold & Smith, PLLC make it their mission to zealously defend their clients on a wide range of criminal matters at both the state and federal levels. These matters may include any charge from traffic offenses; DWI/DUI; drug charges (from simple possession to possession with intent to distribute and trafficking); gun permit denials; weapons offenses; and property crimes (larceny, breaking and entering, robbery, fraud, embezzlement, white collar offenses); to sexually related offenses (indecent exposure; sexual assault, crimes against nature, removal from sex offender registry); and violent crimes (domestic violence; assault; manslaughter; homicide, murder). Other legal issues that Arnold & Smith, PLLC criminal clients may be facing include restraining orders, restraining order and probation violations, expungements; appeals; and immigration issues related to criminal charges. Our criminal defense attorneys are passionate about ensuring that individuals empower themselves by being informed about their constitutional rights, and stand at the ready to fight in the defense of those facing criminal charges.



Fifth Amendment | Wex | US Law | LII / Legal Information Institute (cornell.edu)


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