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Fifth Amendment to the United States Constitution

From dKosopedia

Amendment V (the Fifth Amendment) of the United States Constitution is the fifth of ten amendemnts to the Constitution also collectively known as the Bill of Rights. The Fiftth Amendment along with the rest of the Bill of Rights, was proposed by Congress in 1789, to be ratified by the requisite number of states in 1791. As with the remaining Amendments of the Bill of Rights, the First Amendment was passed in order to answer protestations that the newly created Constitution did not include sufficient guarantees of civil liberties.

The Fifth Amendment guarantees several protections related to legal procedure. Many of these guarantees stem from English common law. For instance, grand juries and the phrase "due process" both trace their origin to common law.



The text of the 5th Amendment reads as follows:

"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."


(Article content giving background on the 10th amendment goes here)


Grand jury

Grand juries, which return indictments in many criminal cases, are composed entirely of laymen and operate in secret; they are directed, but not controlled, by prosecutors. 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.

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 Fifth Amendment's grand jury clause 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 by 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 without indictments.

Double jeopardy

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 (1969), the Supreme Court "incorporated" the clause under the Fourteenth Amendment.

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". Thus, 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. Acquittals by both juries and judges are generally deemed final. 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, his 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. If a defendant appeals a decision and is successful in having it overturned, he is 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 (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, is convicted by the jury of murder in the second degree, and then has the jury's conviction overturned on procedural grounds, he may be retried for second but not first degree murder; the jury, by convicting the defendant of second degree murder, is deemed to have implicitly acquitted him 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 expection 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.

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 acted in bad faith. In Oregon v. Kennedy (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 (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 a fact which the other does not." For example, the test was applied in Brown v. Ohio (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 relitigate facts already determined by a jury. In Ashe v. Swenson (1970), the defendant was accused of robbing seven poker players during a game. He 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 relitigate the issue.


The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence. Fifth Amendment protections apply wherever and whenever an individual is compelled to testify, including in settings such as grand jury or congressional hearings (in the 1950s, many witnesses testifying before the House Committee on Un-American Activities and the Senate Internal Security Subcommittee cited their rights under the amendment in response to questions concerning their alleged membership in the Communist Party, and the amendment has also been used extensively by defendants and witnesses in criminal cases involving the Mafia). The Supreme Court has also incorporated the self-incrimination clause under the Fourteenth Amendment.

In some cases, individuals may be compelled to report or disclose evidence that may be used against them in criminal cases. In United States v. Sullivan (1927), the Supreme Court held that an individual could not refuse to file an income tax return on the grounds that he would in doing so have to disclose the illegal source of his revenue. In Albertson v. SACB (1965), however, the Supreme Court struck down a law requiring members of the Communist Party to register with the government because it 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.

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.

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 Green v. Mississippi (1933).

Police departments responded by switching to more subtle techniques, so the next step was a series of cases in which the Court held that physical torture is not the only element that renders a confession involuntary and inadmissible. Chambers v. Florida (1940) held a confession obtained after five days of prolonged questioning, during which time the defendant was held incommunicado, to be coerced; a similar finding was reached in Ashcraft v. Tennessee (1944), the suspect having been interrogated under electric lights by officers continuously for a period of thirty-six hours. Haynes v. Washington (1963) 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 Chief Justice Earl Warren referred to is now called the Miranda Warning, and is delivered by police before interrogations.

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 is not free to leave. 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 precedings. 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 was 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 First, Fifth, and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police.

Due process

The Fifth Amendment prevents individuals from being punished without "due process of law." Due process extends to all persons (including aliens) and corporate entitites. The Fourteenth Amendment explicitly binds the states with due process protections.

Eminent domain

The Supreme Court has held that the federal government and each state has eminent domain, that is to say, the power to take private property. The Fifth Amendment provides that private property may only be taken for public use if just compensation is paid. The provision did not, originally, directly apply to the states. Like all clauses except the grand jury clause, however, the Supreme Court has extended the eminent domain clause to the states under the Fourteenth Amendment.

What exactly constitutes "public use" is up to determination by the courts, which have, however, shown much deference to the determinations of Congress and state legislatures. 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 the 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 courts have not refrained from seizing land for commerical development on the behalf of said developers when the state stand to gain sizable compensation through taxation of such a business, though in 2005, the Supreme Court has agreed to hear the case Kelo v. New London, the first major case on eminent domain to reach the high court in years.

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This page was last modified 16:37, 10 October 2007 by dKosopedia user Corncam. Based on work by OloleToolo and dKosopedia user(s) Dmsilev, Allamakee Democrat and Lestatdelc. Content is available under the terms of the GNU Free Documentation License.

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