Thoughts on the Fifth Amendment

 

Fifth Amendment to the United States Constitution

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 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. (“Constitution Annotated” website)

 

The Fifth Amendment to the Constitution protects citizens on several levels.  Scholars consider the Fifth Amendment as capable of breaking down into five distinct constitutional rights: 

1. The right to indictment by the grand jury before any criminal charges for felonious crimes
2. A prohibition on double jeopardy
3. A right against forced self-incrimination
4. A guarantee that all criminal defendants have a fair trial, and 
5. A guarantee that the government cannot seize private property without making a due compensation at the market value of the property.

After the January 6 coup attempt, a number of subpoenaed witnesses used the Fifth Amendment to refuse to answer questions under oath.  Some were reported simply to have said “The Fifth” with no other explanation of their refusal to respond.  I suggest the following:

a.         The Constitutional protection against requiring testimony applies only in criminal cases.  Thus, when one is providing testimony in a noncriminal situation, such as testimony to a Congressional Committee, the Fifth Amendment should not apply as an excuse not to answer a question. 

b.         When witnesses do use the Fifth Amendment in testimony, they should be required to indicate which of the four elements of the Fifth Amendment they are using to justify not answering a question.  If they don’t give a reason, the questioner should be free to say, “then  shall I assume that your honest answer would possibly incriminate you?” 

Thoughts?