Fifth Amendment to the United States Constitution

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The Fifth Amendment (Amendment V) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. Its guarantees stem from English common law as established by Magna Carta in 1215. For instance, Grand Juries and the phrase "due process" both trace their origin to the Magna Carta.

Text

Grand jury

The Bill of Rights in the National Archives.

Grand juries, which return indictments in many criminal cases, are composed of a jury of peers and operate in closed deliberation proceedings; they are given specific instructions regarding the law by the judge. Many constitutional restrictions do not apply during grand jury proceedings. The exclusionary rule, which prevents evidence seized in violation of the Fourth, Fifth or Sixth Amendments from being introduced in court, does not apply to evidence presented to a grand jury.^[2] Witnesses do not have the right to have their attorneys present in grand jury rooms during hearings; they would normally have such a right when being investigated by the police. The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment; in other words, it has not been ruled applicable to the states. States are thus free to abolish grand juries, and many (though not all) have indeed replaced them with preliminary hearings.

Whether or not a crime is "infamous" is determined by the nature of the punishment that may be imposed (not the punishment that is actually imposed),^[3] though crimes punishable by capital punishment are explicitly required within the text of the Fifth Amendment to be tried upon indictments. In United States v. Moreland, 258 U.S. 433 (1922), the Supreme Court held that imprisonment in a prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime. Currently, federal law permits the trial of misdemeanors without indictments^[4] and in cases involving felonies, except those in which capital punishment may be applied, the prosecution may proceed without indictments if the defendants waive their Fifth Amendment right.

Indictments found by grand juries may be amended by the prosecution only in limited circumstances. In Ex Parte Bain (1887), the Supreme Court held that the indictment could not be changed at all by the prosecution. United States v. Miller, 471 U.S. 130 (1985) partly reversed the previous ruling; now, an indictment's scope may be narrowed by the prosecution. Thus, lesser included charges may be dropped, but new charges may not be added.

The grand jury clause of the Fifth Amendment does not protect those serving in the armed forces, whether during wartime or peacetime. Members of the state militia called up to serve with federal forces are not protected under the clause either. In O'Callahan v. Parker, 395 U.S. 258 (1969), the Supreme Court held that only service-related charges may be brought against members of the militia without indictments. That decision was overturned in 1987, when the Court held that members of the militia in actual service may be tried for any offense with indictments.^[5]

Double Jeopardy

See also: Double jeopardy

The Fifth Amendment refers to being put in "jeopardy of life or limb." The clause, however, has been interpreted as providing protection regarding "every indictment or information charging a party with a known and defined crime or misdemeanor." The clause, it has been held, does not prevent separate trials by different governments, and the state and federal governments are considered "separate sovereigns". Therefore, one may be prosecuted for a crime in a state court, and also prosecuted for the same crime in another state, a foreign country, or (most commonly) in a federal court.

Once acquitted, a defendant may not be retried for the same offense: Ball v. U.S. "A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense." 163 U.S. 662 at 672 (1896). Acquittal by a jury is generally final and cannot be appealed by the prosecution, Fong Foo v. United States, 369 U.S. 141 (1962). An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution, United States v. Jenkins, 420 U.S. 358 (1975). A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, the judge's determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated. Additionally, although a judge may overrule a guilty verdict by a jury, he or she does not have the same power to overrule a not guilty verdict.

Defendants may not be retried following conviction except in limited circumstances when the judge sees fit. Bribing a judge to get an acquittal is not valid because the party acquitted has prevented themselves from being placed into "jeopardy" in the first place. Harry Aleman v. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al., 138 F.3d 302 (1998). If a defendant appeals a conviction and is successful in having it overturned, they are subject to retrial. An exception arises if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in Burks v. United States 437 U.S. 1, (1978), it was held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient". Another exception arises in cases of conviction for lesser offenses. For instance, if a defendant is charged with murder in the first degree, and is convicted by the jury of murder in the second degree, and later the jury's conviction is overturned on procedural grounds, the defendant may be retried for second degree but not first degree murder; the jury, by convicting the defendant of second degree murder, is deemed to have implicitly acquitted them of first degree murder.

The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed by the courts. Sentence increases may not, however, be made once the defendant has already begun serving his term of imprisonment. If a defendant's conviction is overturned on procedural grounds, the retrial may result in a harsher penalty than the original trial. The only exception is that the prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.

In Arizona v. Rumsey, 467 U.S. 203 (1984), it was ruled that in a bench trial, when a judge was holding a separate hearing after the jury trial, to decide if the defendant should be sentenced to death or life imprisonment, the judge decided that the circumstances of the case did not permit death to be imposed. On appeal the judge's ruling was found to be erroneous. However, even though the decision to impose life instead of death was based on an erroneous interpretation of the law by the judge, the finding of life imprisonment in the original case constituted an acquittal of the death penalty and thus death could not be imposed upon a subsequent trial. Even though the acquittal of the death penalty was erroneous in that case, the acquittal must stand.

Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or terminates the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial. When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, 456 U.S. 667, (1982), the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."

Defendants may not more than once be placed in jeopardy for the "same offense". Sometimes, however, the same conduct may violate different statutes. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not". For example, the test was applied in Brown v. Ohio, 432 U.S. 161 (1977). The defendant had first been convicted of operating an automobile without the owner's consent, and later of stealing the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.

In other cases, the same conduct may constitute multiple offenses under the same statute, for instance where one robs many individuals at the same time. There is no explicit bar to separate prosecutions for different offenses arising under the same "criminal transaction", but it is not permissible for the prosecution to re-litigate facts already determined by a jury. In Ashe v. Swenson, 397 U.S. 436, (1970), the defendant was accused of robbing seven poker players during a game. John Ashe was first tried for, and acquitted of, robbing only one of the players; the defense did not contest that a robbery actually took place. The state then tried the defendant for robbing the second player; stronger identification evidence led to a conviction. The Supreme Court, however, overturned the conviction. It was held that in the first trial, since the defense had not presented any evidence that there was no robbery, the jury's acquittal had to be based on the conclusion that the defendant's alibi was valid. Since one jury had held that the defendant was not present at the crime scene, the State could not re-litigate the issue.

Self-incrimination

The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is a refusal to answer a question because the response could form self-incriminating evidence.

Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.^[6][7] The legal shift from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th centuries in England. Anyone refusing to take the oath ex-officio (confessions or swearing of innocence, usually before hearing any charges) was taken for guilty. Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly employed to compel "cooperation." Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with thirteen demands, of which the right against self-incrimination (in criminal cases only) was listed at number three. These protections were brought to the American shores by Puritans, and were later incorporated into the United States Constitution through its Bill of Rights.

This amendment is also similar to Section 13 of the Canadian Charter of Rights and Freedoms.

Civil or criminal proceedings

Fifth Amendment protections apply wherever and whenever an individual is compelled to testify. The U.S. Supreme Court has ruled that the right against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924)).

People have asserted the right in grand jury or in congressional hearings in the 1950s, where witnesses testifying before the House Committee on Un-American Activities or the Senate Internal Security Subcommittee claimed the right in response to questions concerning their alleged membership in the Communist Party. However, due to the Red Scare hysteria of the times, frequently referred to as McCarthyism, people who have asserted the right were popularly seen as guilty as accused, and sometimes referred to as "Fifth Amendment Communists"; people have lost their jobs, lost their leadership positions in union or political organizations, or had other negative repercussions after "taking the fifth." Senator Joseph McCarthy (R-Wisc.) was famous for his question, "Are you now, or have you ever been a member of the Communist party," while he was chairman of the Senate Government Operations Committee Permanent Subcommittee on Investigations. Even admitting to previous Communist party membership was not sufficient; people were also required to "name names," that is, to implicate others they knew to be Communists or who had been Communists in the past. For example, Academy Award winning director Elia Kazan testified before the House Committee on Un-American Activities that he had belonged to the Communist party briefly in his youth; in addition, he "named names," which earned him the enmity of many in Hollywood. Other entertainment professionals, such as Zero Mostel, found themselves on a Hollywood Blacklist after taking the fifth, and were unable to find work for some period afterwards in the entertainment industry.

The amendment has also been used, famously, by defendants and witnesses in criminal cases involving the Mafia. The Supreme Court has also used the incorporation doctrine to apply the self-incrimination clause against the states under the Fourteenth Amendment.

The right against self-incrimination does not apply whenever an individual is requested to testify before a self-regulatory organization (SRO). SROs, such as the National Association of Securities Dealers (NASD), are generally not considered state actors and therefore are immune to the privilege. Department of Enforcement, United States v. Solomon, 509 F. 2d 863 (2d Cir. 1975); D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., 132 F. Supp. 2d 248, 251-53 (S.D.N.Y. 2001), aff'd, 279 F.3d 155, 162 (2d Cir. 2002), cert. denied, 537 U.S. 1028 (2002); Marchiano v. NASD, 134 F. Supp. 2d 90, 95 (D.D.C. 2001). Another reason for this immunity is that SROs lack subpoena powers, so they rely heavily on requiring testimony from individuals while wielding the threat of a bar from the industry (permanent, if decided by the NASD) in the case of noncompliance.

Custodial interrogation

The Fifth Amendment's protections often relate to police interrogations and confessions by suspects. Originally, at common law, any confession, however obtained (even by torture), was admissible in court. In the eighteenth century, common law in England came to provide that coerced confessions were inadmissible. The common law rule was incorporated into American law by the courts. However, the use of brutal torture to extract confessions was routine in some rural states as late as the 1930s, and stopped only after the U.S. Supreme Court kept throwing out convictions based on such confessions, in cases like Brown v. Mississippi, 297 U.S. 278 (1936).

Police departments responded by switching to more subtle techniques, resulting in a series of cases in which the Court held that physical torture is not the only element that renders a confession involuntary and inadmissible. In Chambers v. Florida (1940) the Court held a confession obtained after five days of prolonged questioning, during which time the defendant was held incommunicado, to be coerced. A similar result was reached in Ashcraft v. Tennessee (1944). In that case the suspect had been interrogated under electric lights by officers continuously for a period of thirty-six hours. In Haynes v. Washington (1963) the Court held that an "unfair and inherently coercive context" (for instance, a prolonged interrogation) rendered a confession inadmissible.

Miranda v. Arizona (1966) was a landmark case involving confessions. Ernesto Miranda had signed a statement confessing the crime, but the Supreme Court held that the confession was inadmissible because the defendant had not been warned of his rights. The Court held, "the prosecution may not use statements [...] stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." The warning to which Chief Justice Earl Warren referred is now called the Miranda Warning, and it is delivered by the police to an individual upon his or her arrest.

Miranda has been clarified by several further Supreme Court rulings. For the warning to be necessary, the questioning must be under "custodial" circumstances. A person detained in jail or under arrest is deemed to be in police custody. Mere presence in a police station does not indicate that the circumstances of questioning were custodial unless a reasonable person in the suspect's situation would believe that he was in custody. The questioning need not be explicit; for example, two police officers engaging in a conversation designed to goad the suspect into interjecting an incriminatory remark would constitute questioning. A person may choose to waive his Miranda rights, but the prosecution bears the burden of showing that such a waiver was actually made.

A confession not preceded by a Miranda warning (where one is necessary) cannot be admitted as evidence against the confessing party in normal judicial proceedings. The Supreme Court, however, has held that if a defendant voluntarily testifies at the trial that he did not commit the crime, his confession may be introduced to challenge his credibility (i.e. to "impeach" the witness), even if it had been obtained without giving the required warnings.

In Hiibel v. Sixth Judicial District Court of Nevada, the Supreme Court ruled 5-4 on June 21, 2004 that the Fourth, Fifth, and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police.

Refusal to testify in criminal cases

In the context of the courtroom, the Supreme Court has ruled that the government cannot punish a defendant for exercising his right to silence by allowing the prosecutor to ask the jury to draw an inference of guilt from the defendant's refusal to testify in his own defense. Griffin v. California, 380 U.S. 609 (1965). In Griffin, the Court overturned as unconstitutional (under the federal Constitution) a provision of the California State Constitution that had explicitly granted such power to prosecutors.

Federal income tax returns

In some cases, individuals may be legally required to file reports that call for information that may be used against them in criminal cases. In United States v. Sullivan, 274 U.S. 259 (1927), the United States Supreme Court ruled that a taxpayer could not invoke the Fifth Amendment's protections as the basis for refusing to file a required federal income tax return. The Court stated: "If the form of return provided called for answers that the defendant was privileged from making[,] he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld."

In Garner v. United States, 424 U.S. 648 (1976) the defendant was convicted in connection with a conspiracy to "fix” sporting contests and to transmit illegal bets. During the trial the prosecutor introduced, as evidence, the taxpayer's Federal income tax returns for various years. In one return the taxpayer had showed his occupation to be “professional gambler.” In various returns the taxpayer had reported income from “gambling” or “wagering.” The prosecution used this to help contradict the taxpayer's argument that his involvement was innocent. The taxpayer tried unsuccessfully to keep the prosecutor from introducing the tax returns as evidence, arguing that since the taxpayer was legally required to report the illegal income on the returns, he was being compelled to be a witness against himself. The Supreme Court agreed that he was legally required to report the illegal income on the returns, but ruled that the privilege against self-incrimination still did not apply. The Court stated that "if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not 'compelled' him to incriminate himself."

Sullivan and Garner are viewed by some legal scholars as standing, in tandem, for the proposition that on a required Federal income tax return a taxpayer would probably have to report the amount of the illegal income, but might validly claim the privilege by labeling the item "Fifth Amendment" (instead of "illegal gambling income," "illegal drug sales," etc.)

Grants of immunity

If the government gives an individual immunity, then that individual may be compelled to testify. Immunity may be "transactional immunity" or "use immunity"; in the former, the witness is immune from prosecution for offenses related to the testimony; in the latter, the witness may be prosecuted, but his testimony may not be used against him. The Supreme Court has held that the government need only grant use immunity to compel testimony. The use immunity, however, must extend not only to the testimony made by the witness, but also to all evidence derived therefrom. This scenario most commonly arises in cases related to organized crime.

Record keeping

A statutorily required record-keeping system may go too far such that it implicates a record-keeper's right against self-incrimination. A three part test laid out by Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965) is used to determine this: 1. the law targets a highly selective group inherently suspect of criminal activities; 2. the activities sought to be regulated are already permeated with criminal statutes as opposed to essentially being non-criminal and largely regulatory; and 3. the disclosure compelled creates a likelihood of prosecution and is used against the record-keeper.

In Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965), the Supreme Court struck down an order by the Subversive Activities Control Board requiring members of the Communist Party to register with the government and upheld an assertion of the privilege against self-incrimination, on the grounds that statute under which the order had been issued was "directed at a highly selective group inherently suspect of criminal activities."

In Leary v. United States, 395 U.S. 6 (1969) the court struck down the Marijuana Tax Act because its record keeping statute required self-incrimination.

Other

Corporations may also be compelled to maintain and turn over records; the Supreme Court has held that Fifth Amendment protections against self-incrimination extend only to "natural persons." There are, however, a few restraints on the government; it may not, for instance, compel a person to keep records for a corporation if those records could be used against the record-keeper himself.

In Trammel v. United States, 445 U.S. 40 (1980), the Supreme Court ruled that the fifth amendment extended the right not to testify against oneself to include not testifying against one's spouse.

As a condition of employment, workers may be required to answer their employer's narrowly defined questions regarding conduct on the job. If an employee invokes the Garrity rule (sometimes called the Garrity Warning or Garrity Rights) before answering the questions, then the answers cannot be used in criminal prosecution of the employee. This principle was developed in Garrity v. New Jersey, 385 US 493 (1967). The rule is most commonly applied to public employees such as police officers.

In United States v. Boucher, the Vermont district court ruled that the fifth amendment protects a defendant from having to reveal an encyption passphrase, or even the existence of one, in stark contrast to the situation in the United Kingdom.

Due process

Main article: Due process in the United States

The Fifth Amendment prevents individuals from being punished without "due process of law." Due process extends to all persons (including non-U.S. citizens within the U.S.) and corporate entities. The Fourteenth Amendment explicitly binds the states with due process protections.

The Fifth Amendment applies, of course, to the Federal Government (see Barron v. Baltimore), and the Fourteenth Amendment, by its own terms, applies against the States. While the Fifth Amendment includes a Due process clause, it does not include—as the Fourteenth amendment does—an equal protection clause. However, in Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court averred that it was absurd that the Constitution could deny the states the power to abridge equal protection of the laws, yet permit that power to the Congress. "[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive," reasoned Chief Justice Earl Warren. The Court thus interpreted the Fifth Amendment's due process clause to include an equal protection element but has continued to hold that there is a difference between due process and equal protection in its Fourteenth Amendment jurisprudence.

Eminent domain

The Supreme Court has held that the federal government and each state has the power of eminent domain—the power to take private property for "public use". The Takings Clause, the last clause of the Fifth Amendment, limits the power of eminent domain by requiring that "just compensation" be paid if private property is taken for public use. The just compensation provision of the Fifth Amendment did not originally apply directly to the states, but the federal courts now hold that the Fourteenth Amendment extended the effects of that provision to the states. The federal courts, however, have shown much deference to the determinations of Congress, and even more so to the determinations of the state legislatures, as to what constitutes "public use". The property need not actually be used by the public; rather, it must be used or disposed of in such a manner as to benefit the public welfare or public interest. One exception that restrains the federal government is that the property must be used in exercise of a government's enumerated powers.

The owner of the property that is taken by the government must be justly compensated. When determining the amount that must be paid, the government does not need to take into account any speculative schemes that the owner claims the property was intended for use in. Normally, the fair market value of the property determines "just compensation". If the property is taken before the payment is made, interest accrues (though the courts have refrained from using the term "interest").

The federal courts have not restrained state and local governments from seizing privately owned land for private commercial development on behalf of private developers. This was upheld on June 23, 2005, when the Supreme Court issued its opinion in Kelo v. City of New London. This 5–4 decision remains controversial. The majority opinion, by Justice Stevens, found that it was appropriate to defer to the city's decision that the development plan had a public purpose, saying that "the city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." Justice Kennedy's concurring opinion observed that in this particular case the development plan was not "of primary benefit to . . . the developer" and that if that was the case the plan might have been impermissible. In the dissent, Justice Sandra Day O'Connor argued that this decision would allow the rich to benefit at the expense of the poor, asserting that "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." She argued that the decision eliminates "any distinction between private and public use of property—and thereby effectively delete[s] the words 'for public use' from the Takings Clause of the Fifth Amendment". Some states, in response to Kelo, have passed laws which make it more difficult for state governments to seize private land.

The exercise of the police power of the state resulting in a taking of private property was long held to be an exception to the requirement of government paying just compensation. However the growing trend under the various state constitution's taking clauses is to compensate innocent third parties whose property was destroyed or "taken" as a result of police action.^[8]

References

Further reading

• Amar, Akhil Reed; Lettow, Renée B. (1995). "Fifth Amendment First Principles: The Self-Incrimination Clause". Michigan Law Review 93 (5): 857–928. doi:10.2307/1289986. 

External links

• Fifth Amendment with Annotations[1]
• CRS Annotated Constitution: Fifth Amendment
• Privilege Against Self Incrimination by R. Carter Pittman, 1935
• 1954 essay on reasons for pleading the 5th by Howard Fast
• 5th Amendment at the Populist Party — news and essays related to the Fifth Amendment, at the Populist Party of America
• Don't Talk to the Police - Professor James Duane of the Regent University School of Law
• Don't Talk to the Police - Officer George Bruch from the Virginia Beach police department