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Fifth Amendment Due Process: Prosecutorial Issues

Due process is especially important in criminal proceedings when someone's freedom, or in some cases their life, is on the line. The Supreme Court has spent many years analyzing what exactly is required by "due process," and an essential piece is ensuring prosecutors follow certain procedures that protect a person's constitutional rights. Determining whether someone is competent to stand trial, 

The Fifth Amendment is more than "you have the right to remain silent." If you or someone you know faces criminal charges, it's important to enlist the help of a local attorney who can protect your rights.

What the Fifth Amendment Says

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

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Competency for Trial

It is a denial of due process to try or sentence a defendant who is insane or incompetent to stand trial.1 When it becomes evident during the trial that a defendant is or has become insane or incompetent to stand trial, the court on its own initiative must conduct a hearing on the issue.2 Although there is no constitutional requirement that the state assumes the burden of proving a defendant competent, the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bears the burden of proving incompetence by a preponderance of the evidence does not violate due process.3

When a state determines that a person charged with a criminal offense is incompetent to stand trial, he cannot be committed indefinitely for that reason. The court's power is to commit him to a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that he will not, then the state must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen.4

Where a defendant is found competent to stand trial, a state appears to have significant discretion in how it takes account of mental illness or defect at the time of the offense in determining criminal responsibility.5 The Court has identified several tests that are used by states in varying combinations to address the issue: the M'Naghten test (cognitive incapacity or moral incapacity),6 volitional incapacity,7 and the irresistible-impulse test.8

"[I]t is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice."9

For example, in Kahler v. Kansas, the Court held that the Due Process Clause does not require a state to adopt M'Naghten's moral-incapacity test as a complete insanity defense resulting in an acquittal.10 The Court stated that "[d]efining the precise relationship between criminal culpability and mental illness," because it involves "hard choices" among competing values and evolving understandings of mental health, "is a project for state governance, not constitutional law."11

Commitment to a mental hospital of a criminal defendant acquitted by reason of insanity does not offend due process, and the period of confinement may extend beyond the period for which the person could have been sentenced if convicted.12 The purpose of the confinement is not punishment - but treatment - and the Court explained that the length of a possible criminal sentence "therefore is irrelevant to the purposes of . . . commitment."13 Thus, the person acquitted under an insanity defense may be confined for treatment until such time as he has regained his sanity or is no longer a danger to himself or society.14 It follows, however, that a state may not indefinitely confine someone who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct.15

In Atkins v. Virginia, the Court held that the Eighth Amendment also prohibits the state from executing certain persons with an intellectual disability, and added:

"[W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences."16

Issues of substantive due process may arise if the government seeks to compel the medication of a person found to be incompetent to stand trial. In Washington v. Harper,17 the Court had found that an individual has a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs. In Sell v. United States,18 the Court found that this liberty interest could in rare instances be outweighed by the government's interest in bringing an incompetent individual to trial. First, however, the government must engage in a fact-specific inquiry as to whether this interest is important in a particular case.19

Second, the court must find that the treatment is likely to render the defendant competent to stand trial without resulting in side effects that will interfere with the defendant's ability to assist counsel. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the same results. Finally, the court must conclude that the administration of the drugs is in the patient's best medical interests.

Plea Bargaining

A defendant may plead guilty instead of insisting that the prosecution prove him guilty. Often the defendant does so as part of a plea bargain with the prosecution, where the defendant is guaranteed a light sentence or is allowed to plead to a lesser offense.20 Although the government may not structure its system so as to coerce a guilty plea,21 a guilty plea that is entered voluntarily, knowingly, and understandingly, even to obtain an advantage, is sufficient to overcome constitutional objections.22 However, some constitutional challenges may survive a plea if they go to 'the very power of the State' to prosecute the defendant.23 The guilty plea and the often concomitant plea bargain are important and necessary components of the criminal justice system,24 and it is permissible for a prosecutor during such plea bargains to require a defendant to forgo his right to a trial in return for escaping additional charges that are likely upon conviction to result in a more severe penalty.25 But the prosecutor does deny due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence.26

In accepting a guilty plea, the court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly,27 and the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.28

Related Resources


  1. Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961 (1956)). The standard for competency to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402 (1960) (per curiam), cited with approval in Indiana v. Edwards, 554 U.S. 164 (2008). The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial.
  2. Pate v. Robinson, 383 U.S. 375, 378 (1966)see also Drope v. Missouri, 420 U.S. 162, 180 (1975) (noting the relevant circumstances that may require a trial court to inquire into the mental competency of the defendant). In Ake v. Oklahoma, the Court established that, when an indigent defendant's mental condition is both relevant to the punishment and seriously in question, the state must provide the defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively assist in evaluation, preparation, and presentation of the defense. 470 U.S. 68, 83 (1985). While the Court has not decided whether Ake requires that the state provide a qualified mental health expert who is available exclusively to the defense team, see McWilliams v. Dunn, 137 S. Ct. 1790, 1799 (2017), a state nevertheless deprives an indigent defendant of due process when it provides a competent psychiatrist only to examine the defendant without also requiring that an expert provide the defense with help in evaluating, preparing, and presenting its case. Id. at 1800.
  3. Medina v. California, 505 U.S. 437 (1992). It is a violation of due process, however, for a state to require that a defendant must prove competence to stand trial by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348 (1996).
  4. Jackson v. Indiana, 406 U.S. 715 (1972).
  5. Clark v. Arizona, 548 U.S. 735 (2006).
  6. M'Naghten's Case, 8 Eng. Rep. 718 (1843), states that "[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." 8 Eng. Rep., at 722.
  7. See Queen v. Oxford, 173 Eng. Rep. 941, 950 (1840) (If some controlling disease was, in truth, the acting power within [the defendant] which he could not resist, then he will not be responsible).
  8. See State v. Jones, 50 N.H. 369 (1871) (If the defendant had a mental disease which irresistibly impelled him to kill his wife—if the killing was the product of mental disease in him—he is not guilty; he is innocent—as innocent as if the act had been produced by involuntary intoxication, or by another person using his hand against his utmost resistance).
  9. Clark, 548 U.S. at 752. In Clark, the Court considered an Arizona statute, based on the M'Naghten case, that was amended to eliminate the defense of cognitive incapacity. The Court noted that, despite the amendment, proof of cognitive incapacity could still be introduced as it would be relevant (and sufficient) to prove the remaining moral incapacity test. Id. at 753.
  10. 140 S. Ct. 1021, 1027, 1037 (2020).
  11. Id. at 1037.
  12. Jones v. United States, 463 U.S. 354 (1983). The fact that the affirmative defense of insanity need only be established by a preponderance of the evidence, while civil commitment requires the higher standard of clear and convincing evidence, does not render the former invalid; proof beyond a reasonable doubt of commission of a criminal act establishes dangerousness justifying confinement and eliminates the risk of confinement for mere idiosyncratic behavior.
  13. 463 U.S. at 368.
  14. 463 U.S. at 370.
  15. Foucha v. Louisiana, 504 U.S. 71 (1992).
  16. 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986). The Court quoted this language again in Schriro v. Smith, determining that the Ninth Circuit exceeded its authority in holding that Arizona courts were required to conduct a jury trial to resolve a defendant's claim that he was ineligible for the death penalty because of intellectual disability. 546 U.S. 6, 7 (2005) (per curiam). States, the Court added, are entitled to adopt their own measures for adjudicating claims of intellectual disability, though those measures might, in their application, be subject to constitutional challenge. Id.
  17. 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he presented a risk of serious harm to himself or others).
  18. 539 U.S. 166 (2003).
  19. For instance, if the defendant is likely to remain civilly committed absent medication, this would diminish the government's interest in prosecution. 539 U.S. at 180.
  20. There are a number of other reasons why a defendant may be willing to plead guilty. There may be overwhelming evidence against him or his sentence after trial will be more severe than if he pleads guilty.
  21. United States v. Jackson, 390 U.S. 570 (1968). Release-dismissal agreements, pursuant to which the prosecution agrees to dismiss criminal charges in exchange for the defendant's agreement to release his right to file a civil action for alleged police or prosecutorial misconduct, are not per se invalid. Town of Newton v. Rumery, 480 U.S. 386, 394 (1987).
  22. See Tollett v. Henderson, 411 U.S. 258, 265–66 (1973)North Carolina v. Alford, 400 U.S. 25, 38 (1970)Parker v. North Carolina, 397 U.S. 790, 795 (1970)McMann v. Richardson, 397 U.S. 759, 771 (1970)Brady v. United States, 397 U.S. 742, 758 (1970).
  23. Class v. United States, 138 S. Ct. 798, 809 (2018) (quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974)) (holding guilty plea did not bar the defendant from challenging the constitutionality of the statute of conviction on direct appeal). See also Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam) (holding guilty plea did not waive defendant's claim on direct appeal that double jeopardy prohibited his prosecution); Blackledge, 417 U.S. at 31 (holding guilty plea did not foreclose defendant in habeas challenge from arguing that due process prohibited his prosecution). The state can permit pleas of guilty in which the defendant reserves the right to raise constitutional questions on appeal, and federal habeas courts will honor that arrangement. Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975).
  24. Blackledge v. Allison, 431 U.S. 63, 71 (1977).
  25. Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charged with forgery, Hayes was informed during plea negotiations that if he would plead guilty the prosecutor would recommend a five-year sentence; if he did not plead guilty, the prosecutor would also seek an indictment under the habitual criminal statute under which Hayes, because of two prior felony convictions, would receive a mandatory life sentence if convicted. Hayes refused to plead, was reindicted, and upon conviction was sentenced to life. Four Justices dissented, id. at 365, 368, contending that the Court had watered down North Carolina v. Pearce, 395 U.S. 711 (1969)See also United States v. Goodwin, 457 U.S. 368 (1982) (after defendant was charged with a misdemeanor, refused to plead guilty and sought a jury trial in district court, the government obtained a four-count felony indictment and conviction).
  26. Blackledge v. Perry, 417 U.S. 21 (1974). Defendant was convicted in an inferior court of a misdemeanor. He had a right to a de novo trial in superior court, but when he exercised the right the prosecutor obtained a felony indictment based upon the same conduct. The distinction the Court draws between this case and Bordenkircher and Goodwin is that of pretrial conduct, in which vindictiveness is not likely, and post-trial conduct, in which vindictiveness is more likely and is not permitted. AccordThigpen v. Roberts, 468 U.S. 27 (1984). The distinction appears to represent very fine line-drawing, but it appears to be one the Court is committed to.
  27. Boykin v. Alabama, 395 U.S. 238 (1969). In Henderson v. Morgan, 426 U.S. 637 (1976), the Court held that a defendant charged with first-degree murder who elected to plead guilty to second-degree murder had not voluntarily, in the constitutional sense, entered the plea because neither his counsel nor the trial judge had informed him that an intent to cause the death of the victim was an essential element of guilt in the second degree; consequently, no showing was made that he knowingly was admitting such intent. A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving . . . or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Id. at 645 n.13. However, this does not mean that a court accepting a guilty plea must explain all the elements of a crime, as it may rely on counsel's representations to the defendant. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (where the defendant maintained that shooting was done by someone else, guilty plea to aggravated manslaughter was still valid, as such charge did not require the defendant to be the shooter). See also Blackledge v. Allison, 431 U.S. 63 (1977) (defendant may collaterally challenge guilty plea where the defendant had been told not to allude to the existence of a plea bargain in court, and such plea bargain was not honored).
  28. Santobello v. New York, 404 U.S. 257, 262 (1971). Defendant and a prosecutor reached an agreement on a guilty plea in return for no sentence recommendation by the prosecution. At the sentencing hearing months later, a different prosecutor recommended the maximum sentence, and that sentence was imposed. The Court vacated the judgment, holding that the prosecutor's entire staff was bound by the promise. Prior to the plea, however, the prosecutor may withdraw his first offer, and a defendant who later pled guilty after accepting a second, less attractive offer has no right to enforcement of the first agreement. Mabry v. Johnson, 467 U.S. 504 (1984).
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