The Fifth Amendment has been held to be capable of breaking down into the following five distinct constitutional rights:

• Grand juries for capital crimes
• A prohibition on double jeopardy
• A prohibition against required self-incrimination
• A guarantee that all criminal defendants will have a fair trial and
• A promise that the government will not seize private property without paying market value.

Prior to Miranda, confessions were only required to meet the voluntariness test (a requirement that all confessions must be voluntary) - an exercise of free-will on the part of a suspect. This requirement was usually met if the suspect's physical, mental, and emotional condition was stable at the time of making a confession.

While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has ruled that its provisions now applied to the states through the Due Process Clause of the Fourteenth Amendment. In other words, the Fifth Amendment protects criminal defendants from having to testify if doing so might expose them to the possibility of selfincrimination. Thus, it is possible for a defendant or witness to “plead the Fifth” and not answer if he believes that answering the question may be self-incriminatory.

In the 1930s, the famous Wickersham Report⁴⁹ indicated that police violence and the “third degree”⁵⁰ were prominent in that period. The police used physical violence - beating, hanging, whipping and sustained and protracted questioning incommunicado in order to extort confessions.⁵¹ In 1961, the Commission on Civil Rights found much evidence to indicate that “some policemen still resort to physical force to obtain confessions.”⁵²

Prior to Miranda, the use of physical brutality and violence was not confined to the past or to any part of the country. For instance, in Kings County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party.⁵³

These were some of the cases that raised sufficient concern. The Supreme Court stated that unless a proper limitation upon custodial interrogation is achieved (such as the Miranda decision), there can be no assurance that practices of this nature will be eradicated in the foreseeable future.

Earlier, the Wickersham Commission Report, with regards to the “third degree” observed, in the words of Lord Sankey⁵⁴, that “It is not admissible to do a great right by doing a little wrong. . . . It is not sufficient to do justice by obtaining a proper result by irregular or improper means. “It is a short cut and makes the police lazy and unenterprising.”⁵⁵

The report also commented that “If you use your fists, you⁵⁶ are not so likely to use your wits.” The Supreme Court adopted the sentiments of another report that “The third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.”⁵⁷

In 1968, Congress passed the Crime Control and Safe Streets Act.⁵⁸ This was widely seen as overruling Miranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt that Miranda decision represented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. However, in Dickerson v. United States,⁵⁹ the U.S. Supreme Court rejected this argument and held that the Miranda decision was properly derived from the Fifth Amendment.

49 Wickersham Report to Congress by a Presidential Commission, 384, U. S. 436, 446

50 Jerome Herbert Skolnick (1994). Above the Law: Police and the Excessive Use of Force. The third degree is a euphemism for the "inflicting of pain, physical or mental, to extract confessions or statements". In 1931 the Wickersham Commission found that use of the third degree was widespread in the United States. No one knows the origin of the term but there are several hypotheses. The use of the third degree was technically made illegal after the Wickersham report. However, the interrogation method known as the Reid technique, which is now widely used by law enforcement in the U.S., is seen by many as simply a psychological version of the third degree in that it's equally capable of extracting a false confession through coercion when abused by police. The third degree involved a flagrant violation of law by the officers of the law. It also involved the dangers of false confessions and tended to make police and prosecutors less zealous in the search for objective evidence.

51 Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Vernon v. Alabama, 313 U.S. 547 (1941); Ward v. Texas, 316 U.S. 547 (1942); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Malinski v. New York, 324 U.S. 401 (1945); Leyra v. Denno, 347 U.S. 556 (1954). See also Williams v. United States, 341 U.S. 97 (1951).

52 1961 Commission on Civil Rights Rep., Justice, pt. 5, 17

53 People v. Portelli, 15 N. Y. 2d 235, 205 N. E. 2d 857, 257 N. Y. S. 2d 931 (1965). 7 [384 U.S. 436, 447]

54 A prominent British lawyer, judge, politician and Lord Chancellor of Great Britain. Lord Sankey was famous for many of his judgments in the British House of Lords where he was a Law Lord. http://www.parliament.uk/search/results/?q=archives

55 Chief Justice Earl Warren echoing Lord Sankey in delivering the Supreme Court’s opinion in Miranda v. Arizona.

56 384 U.S. 436, 448

57 IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement (1931).

58 Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d.This law prohibited Federal control over State and local criminal justice agencies and prohibited discrimination.

59 530 U.S. 428 (2000)166 F.3d 667. This case held that Miranda and its progeny…govern the admissibility of statements made during custodial interrogation in both state and federal courts