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In The United State's Constitution, The Fifth Amendment indicates that, "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."
This right has its origins dating back to about 1215, where the Due Process Clause and the Grand Juries Clause were based concepts set forth in the Magna Carta
Many scholars believe this amendment breaks down into five areas of constitution rights.
1) right to indictment by the grand jury before any criminal charges for felonious crimes
2) prohibition on double jeopardy
3) a right against forced self-incrimination
4) a guarantee that all criminal defendants have a fair trial
5) a guarantee that government cannot seize private property without making a due compensation at the market value of the property
Originally, the Fifth Amendment actually was only applied to federal courts. However, the Supreme Court has actually partially incorporated the Fifth Amendment to the states through the Due Process Clause of the Fourteenth Amendment.
Grand Juries are based in an old tradition dating back to British common law. Their original design were a protection against over reaches by the British monarchy. The implimentation of this into the United States Constitution was then modified as a protection against the central government instead.
A Grand Jury often consists of anywhere between 12 to 23 memebers, although on the federal level the number is between 16 and 23.
In a standard jury trial, during the selection process a juror can be removed on the basis of accusation of bias, and no evidence would be required for the basis and the person would be removed. However, with a Grand Jury, actual evidence of bias must be established to carry the burden of proof to have them removed.
Although Grand Juries do maintain broad powers to investigate when there is a suspected crime, they are not allowed to form "witch hunts", or use non government employed individuals to make testemony or provide documentation.
The Double Jeopardy Clause protects an individual from being put on trial multiple times for same alleged act. This creates the basis for the concept of aquittal. And thus, The Double Jepordy Clause spares an individual from the fiscal and psychological costs of having to face the same trial over and over again.
The protections against Double Jeopardy include:
1) guarantee that a defendant will not face a second prosecution after an acquittal
2) guarantee that a defendant will not face a second prosecution after a conviction
3) guarantee that a defendant will not receive multiple punishments for the same offense
The most commonly known aspect of the Fifth Amendment, is the right to "plead the Fifth." This means that when placed on the stand, the defendant has the right to not to be forced to make incriminating statements before the court.
In the hallmark case of Miranda v. Arizona, it was established that law enforcement be required to inform you of your rights when you are placed into custody. Any statements made before this point are allowed in court. It is here where we often hear the "right to remain silent" being stated. Although the important aspect of all this is that, the courts narrowed the protection to only apply during the arrest, and thus any information asked before an arrest is permitted.
The government is required to respect all rights, guarantees, and protections of The United States Constitution.
Due process in essence, guarantees that a party will receive a fundamentally orderly, fair, and just judicial proceeding. Although after the Fourteenth Amendment, this incorporation was also to include application to the states as well.
Although the United States Constitution does allow for the federal government to "take" private property, it is required that they pay fair compensation due to the Just Compensation Clause.
This created the concept of a fair market value, which is to be determined as the market value determined from the perspective of an un-pressured buyer that is both aware of the positive and negative aspects of the property.
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