Fifth Amendment

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The Fifth Amendment to the United States 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 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

Parsing the Fifth Amendment[edit]

  • Grand Jury (for capital crimes, consisting of 16-23 members)
  • No Double Jeopardy (being tried twice for the same crime)
  • Right to Silence (freedom from self-incrimination)
  • Due Process (no arbitrary punishment without a fair trial) — 

In US law, the vagueness doctrine states that criminal law must not be vague and must explicitly define the conduct that is punishable. The vagueness doctrine is based on the due process clauses of the Fifth and Fourteenth Amendments.[1]

  • Just compensation (for land seized by the government for eminent domain purposes)


While pleading the Fifth in criminal cases can be advantageous to avoid self-incrimination, it is much less likely to be advantageous in civil cases because the judge may allow the jury to draw an inferences of guilt in civil cases.[2] It is for this reason that pleading the Fifth "in a civil case in federal court is never helpful, is rarely harmless, and is typically very damaging — indeed, it’s often fatal to the party’s claims or defenses."[3] Some states have more stringent standards than federal courts that do not allow drawing negative inference in civil cases either.[3] But even in criminal cases, pleading the Fifth can be disadvantageous because the witness cannot subsequently provide testimony on the same subject in support of their case.[2]


  1. vagueness doctrine Legal Information Institute, Cornell Law School.
  2. 2.0 2.1 What happens if you take the Fifth in a civil case? by Eugene Volokh (August 28, 2015 at 9:07 a.m. EDT) The Washington Post.
  3. 3.0 3.1 Pleading The Fifth Amendment And Adverse Inferences In Civil Litigation by Max Kennerly (June 12, 20190 Litigation & Trial.