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Your Fifth Amendment Rights: What You Need to Know

Okabe & Haushalter May 23, 2018 Criminal Defense

The Fifth Amendment gives you several rights that are important in criminal cases. These are basic constitutional rights, but many people do not fully understand what their rights are or how they should be used.

This article provides an overview of your rights, but you should talk to a Los Angeles criminal defense attorney to get a full explanation of your rights under the Fifth Amendment.

The Right Against Self-Incrimination

The Fifth Amendment gives you the right to decline to answer questions or make any comments when the responses might incriminate you. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” That means that you don’t have to testify or answer questions when the responses would aid the prosecution in a case against you.

You can assert this right in both criminal and civil cases, regardless of whether you are in state or federal court. While not every potential disclosure is protected, the right against self-incrimination is deliberately broad. If the statement could be used in a criminal prosecution against you or it could lead to the discovery of other evidence that might be used in a criminal trial, then it is protected under the Fifth Amendment.

You can waive your Fifth Amendment right by merely talking about the issues that could be incriminating. That is why it is so important to know and understand your rights—there is no obligation for the police or anyone else to stop you from speaking.

Your Due Process Rights

You are also afforded due process under the Fifth Amendment. This provision is one of the most well-known portions, but it is not well understood in many cases. Under the Fifth Amendment, your life, liberty, or property cannot be taken away without due process of law. Defining what due process means can be tricky. To determine whether someone was given due process, the court will generally consider:

  1. Procedural due process: This is based on fairness and whether proper procedures were followed in criminal matters. At a minimum, you must be given notice of your charges, but the procedural due process can include much more than that.
  2. Substantive due process: This aspect of the due process focuses on the reason that a specific law or regulation is in effect. “Substance” is often connected to other fundamental, constitutional rights, such as the right to privacy and the right to vote.

The Fifth Amendment also protects individuals from being tried or punished for the same crime twice. This protection is often referred to as preventing “double jeopardy.”

The Right to a Grand Jury

The Fifth Amendment provides citizens with a right to a grand jury in federal felony cases. A grand jury determines whether to charge someone with a specific crime. The prosecutor will present evidence to this panel of people, and the grand jury will decide whether a defendant should be indicted (or formally charged) with the offense. This extra step helps ensure that prosecutors are not simply charging people with little to no evidence to support the charge.

Some states also use a grand jury in state charges as well, including California. However, grand juries are usually optional under state law.

Have Your Rights Been Violated?

Your Fifth Amendment rights are vital, and you should know and understand them. If you need a criminal defense in Los Angeles, you need Okabe & Haushalter. Call our team to learn more about how we can help you assert your rights: 310-430-7799.