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An amendment to the Constitution of the United States, ratified in 1791, that deals with the rights of accused criminals by providing for due process of law, forbidding double jeopardy, and stating that no person may be forced to testify as a witness against himself or herself.
Adopted in 1791 as part of the Bill of Rights, the Fifth Amendment of the Constitution contains a number of important clauses that protect individuals against governmental authority. Many of these guarantees pertain to the procedures governing the prosecution of criminal offenses. Thus, the Fifth Amendment requires that “No person shall be held to answer for a capital, or otherwise infamous crime” without presentment or indictment by a grand jury. The amendment also prevents a person from being tried twice for the same offense (See Double Jeopardy), and from being compelled “to be a witness against himself” in any criminal case.
In addition to these safeguards against abuses of criminal law, the Fifth Amendment provides that no person shall be “deprived of life, liberty, or property, without due process of law.” Drawn from Magna Carta, the Due Process Clause places procedural limitations on the exercise of governmental power by insisting that officials follow established procedures (See Due Process, Procedural). Some commentators also argued that the Due Process Clause went beyond procedural regularity, and placed substantive limitations on the unreasonable use of governmental authority.
To the framers of the Constitution and Bill of Rights, property rights were closely associated with personal liberty. Underscoring this identification of property ownership with liberty, the Fifth Amendment declares: “Nor shall private property be taken for public use, without just compensation.” The Takings Clause limits the power of eminent domain under which government can seize private property. Hence, the Fifth Amendment protects individuals against arbitrary punishment and confiscation of property.
Provisions similar to the Fifth Amendment are included in the constitutions of nearly all states (See State Constitutions and Individual Rights). The Fifth Amendment was long held not to apply to the states, but the Supreme Court in Chicago, Burlington, & Quincy Railroad Co. v. Chicago (1897) ruled that the just compensation requirement was an essential part of due process as guaranteed under the Fourteenth Amendment. Several of the important criminal procedural provisions were subsequently made effective to state proceedings. In Malloy v. Hogan (1964), the justices determined that the privilege against self‐incrimination was incorporated under the Due Process Clause and applicable to the states. Likewise, the Court incorporated the double jeopardy prohibition in Benton v. Maryland (1969).
Self‐incrimination
Although all of the above‐mentioned rights are protected by the Fifth Amendment, the amendment is often regarded as synonymous with the privilege against self‐incrimination. Saying that a person “takes the Fifth Amendment,” is shorthand for saying that the person asserted the privilege to avoid testifying against him or herself. Although, according to the constitutional text, the provision applies only “in any criminal case,” it has from the beginning been held to bar compelling any testimony that might lead to a criminal prosecution or that might eventually be used in a criminal prosecution of the person required to speak.
Many efforts have been made to explain why the privilege is a desirable or essential part of our basic law. In Twining v. New Jersey (1908), the Court suggested that the privilege was designed to protect the innocent and to further the search for truth. In Tehan v. United States ex rel. Shott (1966), the Court explained “the basic purposes that lie behind the privilege against self incrimination … relate … rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution ‘shoulder the entire load’ ” (pp. 415–416). It may well be that the basic function of the privilege is to serve as a guard against the use of torture or those kinds of police practices that involve physical and psychological intimidation and are colloquially known as “the third degree.” Indeed, the privilege against self‐incrimination is one of the great landmarks in the struggle to fashion a more civilized society.
Two major decisions in the twentieth century helped to make the privilege a protection against improper policy conduct. In McNabb v. United States (1943), the Court held that a confession could not be used as evidence at trial when it was obtained after an “unnecessary delay” in presenting a suspect for arraignment after arrest. In Miranda v. Arizona (1966), the Court held that the prosecution may not use a statement taken from a person held in custody unless the person is “warned that he has a right to remain silent, that any statement he does make may be used as evidence him, and that he has a right to an attorney, either retained or appointed” (pp. 444–445). The defendant may waive these rights, but only voluntarily and knowingly. Moreover, no questioning can be performed if the person “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking” (p. 445).
Two years after Miranda, Congress enacted 18 U.S.C. section 3501, which stated that any voluntary confession is admissible, even if the suspect has not been given a Miranda warning. In Dickerson v. United States (2000), the Court ruled “Miranda, being a constitutional decision of this court, may not be in effect overruled by an act of Congress, and we decline to overrule Miranda ourselves” (p. 432). Further, the Court explained that Miranda “has become embedded in routine police practice to the point where the warnings have become part of our national culture” (p. 443). Thus Miranda warnings remain the law.
Some limitations on the Fifth Amendment privilege have been upheld. In 1970, Congress adopted 18 U.S.C. section 6002 providing for “use immunity.” Use immunity only protects a witness against the use of compelled testimony and any evidence obtained through a lead provided by the compelled testimony. It does not prevent subsequent prosecution based on independent evidence shown to be available to the prosecutor before the use immunity was granted or on evidence that is otherwise wholly independent from the evidence the witness was required to give. The constitutional validity of this statute was sustained in Kastigar v. United States (1972).
Another limitation on the privilege was created in Chavez v. Martinez (2003). The question was whether a police officer violates due process when obtaining a confession by coercion, regardless of whether the confession is subsequently used at trial. In this case the suspect was interrogated while being treated for gunshot wounds and never received a Miranda warning. The suspect was never charged with a crime and his answers were never used against him in a criminal proceeding. The Court declared: “[W]e have long permitted the compulsion of incriminating testimony so long as those statements (or evidence derived from those statements) cannot be used against the speaker in any criminal case.”
Fifth Amendment Takings
The Fifth Amendment's concluding phrase, “nor shall private property be taken for public use without just compensation,” is known as the Takings Clause. Property owners must be compensated if the title to their property is transferred to the state or when their property is physically invaded under governmental authority. Transfer of title and physical invasion are relatively easy to interpret, especially after Loretto v. Teleprompter Manhattan CATV Corp (1982), in which a cable television company had to pay compensation for physically occupying less than a square meter of a private citizen's property, even though the city had granted authority to the cable television company.
The Court has also declared that a taking occurs when governments place unreasonable conditions on use or take part of the value of a property. These have become known as “regulatory takings.” One of the early cases claiming a regulatory taking was Village of Euclid v. Ambler Realty Co. (1926), in which zoning was determined to be in the public interest and an appropriate way to control nuisance, even though zoning restricted owners' potential uses of their property. Penn Central Transportion Co. v. New York City (1978) restricted Penn Central Railroad from building a fifty‐plus‐story addition above their railroad station in New York City. The Court held New York City's denial of a permit was not a regulatory taking. The Court declared that its past taking decisions were “essentially ad hoc, factual inquiries” and established what is now known as a “balancing test” for determining when a regulation is a taking. The balancing test includes: “[t]he economic impact of the regulation on the claimant, and, particularly, the extent to which the regulation has interfered with distinct, investment‐backed expectations,” and “the character of the governmental action” (p. 124).
In 1987, the Reagan administration issued an executive order requiring a “regulatory takings review” of all new federal regulations. The Court decided two regulatory takings cases that year. In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987), the Court ruled an agency could be required to pay compensation for loss of the use of property during the time an unconstitutional ordinance was in place. The Court required that there be a nexus between the impact of a development project and mitigating conditions in *Nollan v. California Coastal Council (1987). Government could not, therefore, place unreasonable or disconnected provisions on permits. But the question of how much property could be taken by regulation remained answered.
In *Lucas v. South Carolina Coastal Commission (1992), Lucas purchased two beachfront lots on a South Carolina barrier island. The legislature subsequently enacted the South Carolina Beachfront Management Act, which prohibited Lucas from building on his lots. Lucas sued, claiming that the act made his property valueless, and sought compensation. The Supreme Court held that land‐use regulations that deprived an owner of “all economically beneficial uses” of property constituted a per se violation of the Takings Clause. Thus, Lucas established a narrow definition—”all economically beneficial uses”—for per se regulatory takings.
That definition was used in City of Monterey v. Del Monte Dunes at Monterey, Ltd. (1994), in which the City of Monterey's refusal to approve any of nineteen proposed site plans for developing a 37.6 acre parcel was determined to be a case of denying all economically viable use of the property. It was also part of the basis for denying a landowner compensation for the regulatory taking of the wetlands portion of his property (Palazzolo v. Rhode Island, 2001). The Court agreed that the owner had lost economic use of the wetlands, but because he had $200,000 in development value remaining on an upland parcel of the property, the regulation did not constitute a per se taking. However, the case was remanded for reconsideration under the Penn Central balancing test.
Assessment
The Fifth Amendment has now been in effect for two hundred years. It continues to generate controversy particularly in times of stress when human rights safeguards are most needed. The privilege against self‐incrimination has served the country well, representing a basic moral value in the nation's constitutional structure. It has long played a central role in protecting the individual against the collective power of the state, and it is important as a symbol of the nation's fundamental concern for human rights. The Takings Clause is another symbol of the concern for protecting the individual against the collective power of the state. It, however, has not been expanded in the same ways the privilege against self‐incrimination has. In fact, the Takings Clause has not been accorded the same judicial or symbolic value as the other clauses in the Bill of Rights. Chief Justice *Rehnquist claimed in his opinion in Dolan v. City of Tigard (1994), that, “We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances” (p. 392). But, since the Court has been reluctant to accord the same degree of judicial solicitude as other provisions of the Bill of Rights, the Takings Clause remains a “poor relation.”
Bibliography
— Erwin N. Griswold
One of the ten ‘Bill of Rights’ amendments (1791) to the United States Constitution, this guarantees citizens that ‘due process’ will be observed by governing authorities in the event of their arrest or trial. Of particular importance is the right to avoid self-incrimination (known as ‘taking the Fifth’).
— Stewart Wood
The Fifth Amendment to the U.S. Constitution reads:
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.
The Bill of Rights, which consists of the first ten amendments to the U.S. Constitution, enumerates certain basic personal liberties. Laws passed by elected officials that infringe on these liberties are invalidated by the judiciary as unconstitutional. The Fifth Amendment to the Constitution, ratified in 1791, represents five distinct liberties the Framers attempted to safeguard from majoritarian impulses: (1) the right to be indicted by an impartial grand jury before being tried for a federal criminal offense, (2) the right to be free from multiple prosecutions or punishments for a single criminal offense, (3) the right to remain silent when prosecuted for a criminal offense, (4) the right to have personal liberties protected by due process of law, and (5) the right to receive just compensation when the government takes private property for public use.
The Framers of the Fifth Amendment intended that its provisions would apply only to the actions of the federal government. However, after the Fourteenth Amendment was ratified, most of the Fifth Amendment's protections were made applicable to the states. Under the doctrine of incorporation, most of the liberties set forth in the Bill of Rights were made applicable to state governments through the Supreme Court's interpretation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. As a result, all states must provide protection against double jeopardy, self-incrimination, deprivation of due process, and government taking of private property without just compensation. The Grand Jury Clause of the Fifth Amendment has not been made applicable to state governments.
Double Jeopardy Clause
The Double Jeopardy Clause of the Fifth Amendment prohibits state and federal governments from reprosecuting for the same offense a defendant who has already been acquitted or convicted. It also prevents state and federal governments from imposing more than one punishment for the same offense.
For more than a century, courts have wrestled with the question of what constitutes an acquittal such that a person has already been placed in jeopardy for a particular offense. However, all courts agree that the Double Jeopardy Clause applies only to legal proceedings brought by state and federal governments in criminal court. It does not apply to legal proceedings instituted by purely private individuals in civil court.
The U.S. legal system has two primary divisions, criminal and civil. Criminal actions are designed to punish individuals for wrongdoing. Civil actions are designed to compensate victims with money damages for injuries suffered at the hands of another. Thus, an individual who has been acquitted in criminal court of murder can, without violating the Double Jeopardy Clause, be required in civil court to pay money damages to the family of a victim. Thus, the successive criminal and civil trials of O. J. Simpson, regarding the deaths of Nicole Brown Simpson and Ronald Goldman, did not violate double jeopardy.
The Fifth Amendment's prohibition against double jeopardy is rooted in Anglo-Saxon jurisprudence. Yet the right against double jeopardy in England was sometimes ignored by the Crown. In certain important cases where an acquittal undermined royal interests, the defendant was tried again in a different manner or by a different court. The protection against double jeopardy was also extremely narrow under English law. It applied only to capital crimes, in which the defendant would be subject to the death penalty if convicted. It did not apply to lesser offenses such as noncapital felonies and misdemeanors.
Massachusetts was the first colony that recognized a right against double jeopardy. Its colonial charter provided, "No man shall be twise sentenced by Civil Justice for one and the same Crime, offence, or Trespasse" (as quoted in United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 [1989]). This charter, which served as a model for several other colonies, expanded the protection against double jeopardy to all crimes and offenses, not just capital felonies. Nonetheless, at the time the Bill of Rights was ratified in 1791, the constitutions of only two states expressly afforded double jeopardy protection. Thus, when James Madison submitted his proposal for the Fifth Amendment to Congress, he wanted to make sure that the right against double jeopardy would not be abused by the government, as it had been in England, or altogether forgotten, as it had been in the constitutions of eleven states.
Although Congress and the state ratifying conventions said very little about the Fifth Amendment's Double Jeopardy Clause, the Supreme Court has identified several concerns the Framers were trying to address when they drafted it: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequences of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments not authorized by the legislature.
Self-Incrimination Clause
The Fifth Amendment's right against self-incrimination permits an individual to refuse to disclose information that could be used against her or him in a criminal prosecution. The purpose of this right is to inhibit the government from compelling a confession through force, coercion, or deception. The Self-Incrimination Clause applies to any state or federal legal proceeding, whether it is civil, criminal, administrative, or judicial in nature. This privilege is frequently invoked during the trial phase of legal proceedings, where individuals are placed under oath and asked questions on the witness stand.
The privilege is also asserted with some frequency during the pretrial phase of legal proceedings. In the pretrial phase of criminal cases, it is usually asserted in response to pointed questions asked by law enforcement agents, prosecutors, and other government officials who are seeking to determine the persons responsible for a particular crime. During the pretrial phase of civil cases, parties may assert the right against self-incrimination when potentially damaging questions are posed in depositions and interrogatories.
The right against self-incrimination largely took hold in English law with the seventeenth-century trial of John Lilburne. Lilburne was a Puritan agitator who opposed British attempts to impose Anglican religious uniformity across England. In 1637 Lilburne was prosecuted for attempting to smuggle several thousand Puritan pamphlets into England. Before the Star Chamber (an English court with jurisdiction to extinguish nonconformity in the realm), Lilburne refused to take an oath requiring him to answer truthfully any question asked of him. He said he could see that the court was trying to ensnare him, and he claimed that the law of God and the law of the land supported his right against self-accusation. Lilburne was whipped and pilloried for refusing to take the oath. Parliament later declared his punishment illegal, abolished the Star Chamber, and ultimately recognized the right against self-incrimination.
The American colonists, particularly the Puritans in Massachusetts, were familiar with the plight of Lilburne. Nonetheless, the Massachusetts Body of Liberties, a collection of rules of conduct for the Puritan colonists taken nearly verbatim from the Bible, permitted the use of torture to extract confessions from defendants accused of capital crimes. Many other colonies subjected political and religious dissenters to inquisitorial judicial proceedings not unlike those employed in England. In many of these proceedings, the accused persons were not entitled to remain silent but were often asked to provide evidence of their innocence. Even after the Revolution, the constitutions of four states offered no protections against self-incrimination. As Madison drafted the original version of the Fifth Amendment, the lessons of English and colonial history were firmly in his mind.
The Supreme Court has interpreted the Self-Incrimination Clause more broadly than many of the Framers probably would have. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), illustrates this point. In Miranda the Supreme Court held that any statements made by defendants while in police custody before trial will be inadmissible during prosecution unless the police first warn the defendants that they have (1) the right to remain silent, (2) the right to consult an attorney before being questioned by the police, (3) the right to have an attorney present during police questioning, (4) the right to a court appointed attorney if they cannot afford one, and (5) the right to be informed that any statements they do make can and will be used in their prosecution. Although the Miranda warnings are not in the Fifth Amendment's Self-Incrimination Clause, the Supreme Court has ruled that they constitute an essential part of a judicially created buffer zone that is necessary to protect rights that are specifically set forth in the Constitution.
Due Process Clause
The Fifth Amendment's Due Process Clause has two aspects: procedural and substantive. Procedural due process is concerned with the process by which legal proceedings are conducted. It requires that all persons who will be materially affected by a legal proceeding receive notice of its time, place, and subject matter so that they have an adequate opportunity to prepare. It also requires that legal proceedings be conducted in a fair manner by an impartial judge who will allow the interested parties to present fully their complaints, grievances, and defenses. The Due Process Clause governs civil, criminal, and administrative proceedings from the pretrial stage through final appeal, and proceedings that produce arbitrary or capricious results will be overturned as unconstitutional.
Substantive due process is concerned with the content of particular laws applied during legal proceedings. Before World War II, the Supreme Court relied on substantive due process to overturn legislation that infringed on a variety of property interests, including the right of employers to determine the wages their employees would be paid and the number of hours they could work. Since World War II, the Supreme Court has relied on substantive due process to protect privacy and autonomy interests of adults, including the right to use contraception and the right to have an abortion.
The line separating procedure from substance is not always clear. For example, procedural due process guarantees criminal defendants the right to a fair trial, and substantive due process specifies that twelve jurors must return a unanimous guilty verdict before the death penalty can be imposed. The concepts of substantive and procedural due process trace back to English law. The Magna Charta provided, "No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way … except by the lawful judgment of his peers, or by the law of the land" (art. 39). According to eminent English jurist Sir Edward Coke, law of the land anddue process of law were interchangeable terms possessing both procedural and substantive meaning.
The American colonists followed the English tradition of attributing substantive and procedural qualities to the concepts of due process and law of the land. Maryland and Massachusetts, for example, equated the two concepts with colonial common law and legislation regardless of their procedural content. On the other hand, Virginia, Pennsylvania, and Vermont all passed constitutional provisions identifying law of the land with specific procedural safeguards, including the right against self-incrimination. Thus, when the Due Process Clause was submitted to the state conventions for ratification, it was popularly understood to place both procedural requirements on legal proceedings and substantive limitations on the law applied in those proceedings.
Eminent Domain Clause
When the government takes someone's personal property for public use, the law calls it a taking and protects it under the Eminent Domain Clause of the Fifth Amendment. The Eminent Domain Clause permits the government to appropriate private property, both real estate and personal belongings, for a public purpose so long as the owner receives just compensation, which is normally equated with the fair market value of the property. The Fifth Amendment attempts to strike a balance between the needs of the public and the property rights of the owner.
The power of eminent domain was first recognized in England in 1215. Article 39 of the Magna Charta (the Great Charter of English liberties) read, "no free man shall be … disseised [deprived] of his freehold … except by the lawful judgment of his peers, or by the law of the land." No compensation was awarded to owners whose property was taken by the government for public use. Instead, English law merely required that the government obtain ownership of private property through existing legal channels, such as parliamentary legislation. This principle was followed in England for several centuries, and was later adopted by the American colonies.
Uncompensated takings of private property by colonial governments generally involved unimproved land (land that had not been built on). Colonial governments often appropriated private land to build roads and bridges to develop America's frontiers. During the American Revolution, the power of eminent domain was used to seize the land of colonists loyal to Great Britain, and to obtain various goods for military consumption. Compensation was rarely given to individual owners deprived of their property by colonial governments because making personal sacrifices for the common good, including forfeiting personal property, was considered an essential duty of every colonist.
Not everyone in the colonies believed that personal property interests should always be sacrificed for the greater good of society. Many colonists expressed distress over legislatures that were abusing their power of eminent domain. New York, for example, regularly failed to recognize titles to real estate in its colony held by residents of Vermont. Other colonies also discriminated in favor of their own residents, and against persons whose patriotism was questionable during the Revolution. It was in this context that the Eminent Domain Clause of the Fifth Amendment was drafted.
During the twentieth century, the Supreme Court has enlarged the protection against uncompensated takings of private property by state and federal governments. The Eminent Domain Clause has been interpreted to protect not only owners whose property is physically taken by the government, but also owners whose property value is diminished as a result of government activity. Thus, compensable takings under the Fifth Amendment result from zoning ordinances that deny property owners an economically viable use of their land (Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 [1980]), environmental regulations that require the government to occupy an owner's land in order to monitor groundwater wells (Hendler v. United States, 952 F.2d 1364 [Fed. Cir. 1991], land-use regulations that curtail mining operations (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 [1992]), and government owned airports that lower property values in adjacent neighborhoods (United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206 [1946]).
Grand Jury Clause
A grand jury is a group of citizens summoned to criminal court by the sheriff to consider accusations and complaints leveled against persons suspected of engaging in criminal conduct. Grand juries do not determine guilt or innocence. Instead, they determine whether probable cause exists to believe that the accused has committed a crime, and return an indictment (a formal charge against the accused) if they do find probable cause. At common law a grand jury consisted of not less than twelve or more than twenty-three men. Today grand juries impaneled before a federal district court must consist of not less than sixteen or more than twenty-three men and women.
Potential jurors are usually drawn from lists of qualified residents. Persons who are below the age of majority, have been convicted of certain crimes, or are biased toward the accused are ineligible to serve as grand jurors.
The Fifth Amendment's Grand Jury Clause has not been made applicable to state governments through the doctrine of incorporation. In place of grand juries, most states use a document known as an information, which is drafted by the prosecutor, to tell accused persons about the charges against them.
The grand jury originated in England during the reign of Henry II (1154-89). In 1166 a statute called the Assize of Clarendon was enacted. The assize provided that no person could be prosecuted unless four men from each township and twelve men from each hundred appeared before the county court to accuse the individual of a specific crime. This compulsory process, called a presenting jury, foreshadowed the grand jury as an accusatory body that identified individuals for prosecution but made no finding as to guilt or innocence.
As the grand jury system developed in England and colonial America, it protected innocent persons facing unfounded charges initiated by political, religious, and personal adversaries. The impartiality of grand juries is essential. This is a significant reason the proceedings are convened in secrecy; otherwise, public scrutiny and similar prejudicial influences could affect their decision-making process. Although grand juries must be impartial, accused persons have no constitutional right to present evidence on their behalf or cross-examine witnesses, and hearsay evidence may be introduced against them.
See: incorporation doctrine; Criminal Law; Criminal Procedure; Custodial Interrogation; Miranda v. Arizona.
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.
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One of the ten amendments to the United States Constitution that make up the Bill of Rights. The Fifth Amendment imposes restrictions on the government's prosecution of persons accused of crimes. It prohibits self-incrimination and double jeopardy and mandates due process of law.
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Amendment V (the Fifth Amendment) 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.
| “ | 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 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. | ” |
Grand juries, which return indictments in many criminal cases, are composed by 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 Amendment from being introduced in court, does not apply to evidence presented to a grand jury. 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). (Crimes punishable by capital punishment are explicitly required to be tried upon indictments.) In United States v. Moreland (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. 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 (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 (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.
Generally, individuals may be tried only once for a particular offense under the double jeopardy clause. Originally, the protection against double jeopardy did not extend to prosecutions in state courts. In Benton v. Maryland 395 U.S. 784, (1969), the Supreme Court "incorporated" the clause under the Fourteenth Amendment, meaning that state courts were now required to honor the protections of the Fifth Amendment in state criminal proceedings as well.
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.
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.
The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" or to "take 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.[citation needed] 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, in 1637, to take the oath. 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.
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 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 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.
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, .
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.
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.
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), a case involving the Federal income tax, the United States Supreme Court ruled that a taxpayer could not use the Fifth Amendment to refuse to file a required 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.)
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 [citation needed] 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.
In Albertson v. SACB, 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."
Corporations may also be compelled to keep 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 Leary v. United States, the court struck down the Marijuana Tax Act because it required self-incrimination.
The Fifth Amendment prevents individuals from being punished without "due process of law." Due process extends to all persons (including non-U.S. citizens) 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.
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 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. Speculative schemes that the owner claims the property was intended for use in need not be taken into account when determining the amount that must be paid. Normally, the fair market value of the property determines "just compensation". If the property is taken before the payment is made, interest (though the courts have refrained from using that term) accrues.
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 [deletes] the words 'for public use' from the Takings Clause of the Fifth Amendment".
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