Fifth Amendment

The Fifth Amendment to the United States Constitution, adopted along with the rest of the Bill of Rights on December 15, 1791, recognizes a number of protections for [Page 260]criminal suspects, defendants, and property owners. Its primary features are the grand jury clause, the double jeopardy clause, the self-incrimination clause, the due process clause, and the takings clause. The self-incrimination clause is particularly relevant to the application of the Fourth Amendment because it contains something of a written exclusionary rule, requiring that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” Some scholars believe the phrase “to be a witness” in the Fifth Amendment should be construed as the equivalent of the phrase “to give evidence” found in contemporaneous state sources. This construction is also supported by the appearance of the word witness elsewhere in the Constitution, such as in the confrontation clause and the treason clause, which suggests a general evidentiary construction rather than one limited to mere oral witnessing. The due process clause of the Fifth Amendment is also quite important because the same provision within the Fourteenth Amendment has been the vehicle through which the U.S. Supreme Court has applied most provisions of the Bill of Rights, including those in the Fourth Amendment, to the states. Even prior to the full application of the Fourth Amendment to the states, courts sometimes ruled that police provisions had been so shocking that they were excluded under the due process clause.

Although the Fourth Amendment does not contain any written exclusionary rule, the self-incrimination clause of the Fifth Amendment has led some justices on the Supreme Court to view exclusion of evidence as the most appropriate remedy for violations of Fourth Amendment—and Fifth Amendment—rights. In Boyd v. United States (1886), Justice Joseph Bradley wrote that “any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of” both amendments. “In this regard,” Bradley notes, “the Fourth and Fifth Amendments run almost into each other.” He cited a sentence in the 1765 English opinion in Entick v. Carrington that explicitly recognized that the right to remain silent is implicated by the search and seizure of papers and other evidence: “It is very certain that the law obligeth no man to accuse himself, and it should seem, that search for evidence is disallowed upon the same principle” (emphasis added).

The Supreme Court majority that imposed the exclusionary rule on state courts in Mapp v. Ohio (1961) did so because it viewed exclusion as required by either the Fourth Amendment or a union of the Fourth Amendment with the silence rights enunciated in the Fifth Amendment.

Justice John Marshall Harlan's dissent summed up the crude alliance that was forged among the five victorious justices: