(Episode 20) Indicting a Ham Sandwich: The Fifth Amendment, Part 1 of 3

Michael: "Yes. It was on company property with company property, so double jeopardy. We are fine."

Ryan: "I don't think you understand how jeopardy works."

Michael: "Oh, right. I'm sorry. What is 'We're fine?'"

-The Office, "Fun Run" (2007)

Nick: "They're tough in Louisiana, Libby. You shoot me, they'll give you the gas chamber."

Libby [Ashley Judd]: "No they won't. It's called double jeopardy. I learned a few things in prison, Nick. I could shoot you in the middle of Mardi Gras and they can't touch me."

-Double Jeopardy (1999)

Welcome to Season 3, listeners! We hope you like our new look on the blog and on social media, and we're excited to bring you more constitutional fun through the Twelfth Amendment. This week, we're starting with the Fifth Amendment, and this episode is the first of three installments. The Fifth Amendment states:

"No person shall be held to answer for a capital, or other 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."

As our not-so-subtle bolding above indicates, there are five main clauses of the Fifth Amendment: Grand Jury, Double Jeopardy, Self-Incrimination, Due Process, and Takings. This episode deals with the first three, all of which have to do with criminal procedure.

Please remember: nothing in the podcast or in the blog is legal advice. We're just trying to understand our Constitution and our rights a little better than what you're taught in civics courses. If you have a legal issue, you should consult an attorney.

Some of the questions we ask (and attempt to answer) this week are:

What, exactly, is a grand jury? Why do we still use it (in some states)?

What does it mean to be placed in double jeopardy? We hope it's obvious that Michael Scott is wrong, but is Ashley Judd wrong, too? (Alan Dershowitz thinks so). When does double jeopardy come into play?

What does your right against self-incrimination really mean? In other words, what are you really doing when you "plead the Fifth?"

There's a wealth of sources and materials you can look to in exploring these clauses and the Fifth Amendment Generally. In addition to what we've linked to above, here are some more resources:

The Interactive Constitution: Fifth Amendment;

Madison's Speech on Amendments (under "Fourthly" and "Seventhly", but no mention of jeopardy)

Obrien, David “Fifth Amendment: Fox Hunters, Old Women, Hermits, and the Burger Court” Notre Dame Law Review Vol 54, p30 (1978);

Findlaw's article, How Does a Grand Jury Work?;

The Conversation's article The grand jury's role in American criminal justice, explained.

And some case law we looked at (but there's TONS more; also, nerd alert):

Ex parte Wilson, 114 U.S. 417 (1885);

Blockburger v. United States, 284 U.S. 299 (1932) (we may have mistakenly called this "Blackburger" in the podcast - sorry);

Ashe v. Swenson, 397 U.S. 436 (1970);

Brown v. Ohio, 432 U.S. 161 (1977);

United States v. Felix, 503 U.S. 378 (1992).