Note: This is an educational course, not legal advice.
The Fifth Amendment holds several protections in one sentence: grand juries for federal felony charges, double jeopardy, self-incrimination, due process and just compensation. This topic covers two: the privilege against self-incrimination (beyond the Miranda setting) and double jeopardy.
Why it works
Self-incrimination. The privilege protects against compelled testimonial communications: being forced to reveal, by words, what is in one's mind. It does not cover physical evidence. In Schmerber v. California (1966) a blood sample taken from a driver was not testimony; the same is true of fingerprints, photographs, lineups and handwriting samples. A defendant may refuse to testify at trial, and the prosecutor may not comment on that silence to the jury (Griffin v. California, 1965). The government can compel testimony by granting immunity that covers both the testimony and evidence derived from it. Double jeopardy. A person may not be tried again for the same offense after an acquittal or conviction, or punished twice for it. "Same offense" is defined by the Blockburger test (1932): two crimes are different if each requires proof of a fact the other does not. A retrial after a hung jury is allowed, and so is a retrial after a defendant wins an appeal on trial errors.
Key idea
The privilege covers compelled testimonial evidence, not physical evidence such as blood or fingerprints (Schmerber). Double jeopardy bars a second prosecution or punishment for the same offense (Blockburger test) by the same sovereign; state and federal governments may each prosecute (Gamble, 2019).
Worked example: Same offense?
A driver is convicted of reckless driving (requires recklessness, not injury). Later the same state charges him with assault with a vehicle for the same incident (requires injury, not recklessness alone). Barred by Blockburger?
- Each crime requires proof of a fact the other does not: reckless driving needs recklessness; the assault charge needs injury.
- Under Blockburger, they are different offenses.
Answer: Not barred under the Blockburger test (other doctrines, like collateral estoppel, could still matter).
Worked example: Testimony or not?
Which is protected by the privilege: (a) being forced to give a voice sample, or (b) being forced to tell the jury where you were that night?
- A voice sample is physical, like a blood sample or handwriting: not testimonial.
- Telling where you were reveals the contents of your mind: testimonial.
Answer: (b) is protected; (a) is not.
Common mistake
Thinking the privilege covers physical evidence such as fingerprints or blood samples. It protects testimonial communication, not physical evidence. Another slip: thinking double jeopardy bars a federal trial after a state trial. Separate sovereigns may each prosecute (Gamble).