Fifth Amendment to the United States Constitution Part I

 

The Fifth Amendment (Amendment V) to the United States Constitution creates several constitutional rights, limiting governmental powers focusing on criminal procedures. It was ratified, along with nine other amendments, in 1791 as part of the Bill of Rights.

The Supreme Court has extended most, but not all, rights of the Fifth Amendment to the state and local levels. This means that neither the federal, state, nor local governments may deny people rights protected by the Fifth Amendment. The Court furthered most protections of this amendment through the Due Process Clause of the Fourteenth Amendment.

One provision of the Fifth Amendment requires that most felonies be tried only upon indictment by a grand jury, which the Court ruled does not apply to the state level. Another provision, the Double Jeopardy Clause, provides the right of defendants to be tried only once in federal court for the same offense. The Self-Incrimination clause provides various protections against self-incrimination, including the right of an individual not to serve as a witness in a criminal case in which he or she is a defendant. "Pleading the Fifth" is a colloquial term often used to invoke the Self-Incrimination Clause when witnesses decline to answer questions where the answers might incriminate them. In the 1966 landmark case Miranda v. Arizona, the Supreme Court held that the Self-Incrimination Clause requires the police to issue a Miranda warning to criminal suspects interrogated while in police custody. The Fifth Amendment also contains the Takings Clause, which allows the federal government to take private property only for public use and only if it provides "just compensation".

Like the Fourteenth Amendment, the Fifth Amendment includes a due process clause stating that no person shall "be deprived of life, liberty, or property, without due process of law". The Fifth Amendment's Due Process Clause applies to the federal government, while the Fourteenth Amendment's Due Process Clause applies to state governments (and by extension, local governments). The Supreme Court has interpreted the Fifth Amendment's Due Process Clause to provide two main protections: procedural due process, which requires government officials to follow fair procedures before depriving a person of life, liberty, or property, and substantive due process, which protects certain fundamental rights from government interference. The Supreme Court has also held that the Due Process Clause contains a prohibition against vague laws and an implied equal protection requirement similar to the Fourteenth Amendment's Equal Protection Clause.

Text

The amendment as proposed by Congress in 1789 and ratified by the states:

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.

Background before adoption

On June 8, 1789, Congressman James Madison introduced several proposed constitutional amendments during a speech to the House of Representatives. His draft language that later became the Fifth Amendment was as follows:

No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without just compensation. ...Except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger ... in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary...

This draft was edited by Congress; all the material before the first ellipsis was placed at the end, and some of the wording was modified. After approval by Congress, the amendment was ratified by the states on December 15, 1791, as part of the Bill of Rights. Every one of the five clauses in the final amendment appeared in Madison's draft, and in their final order those clauses are: the Grand Jury Clause (which Madison had placed last); the Double Jeopardy Clause; the Self Incrimination Clause; the Due Process Clause; and, the Takings Clause.

Grand jury

The Grand Jury Clause limits governmental powers focusing on criminal procedures, because, as stated by the U.S. Supreme Court in United States v. Cotton (2002), "the Fifth Amendment grand jury right serves a vital function in providing for a body of citizens that acts as a check on prosecutorial power. No doubt that is true. See, e. g., 3 Story, Commentaries on the Constitution § 1779 (1883), reprinted in 5 The Founders' Constitution 295 (P. Kurland & R. Lerner eds. 1987). But that is surely no less true of the Sixth Amendment right to a petit jury, which, unlike the grand jury, must find guilt beyond a reasonable doubt." The grand jury is a pre-constitutional common law institution. The Supreme Court ruled against incorporating this right (extending it to the states) in Hurtado v. People of California, 110 U.S. 516 (1884). Most states have an alternative civil process. "Although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelming [p688] majority of the States." Branzburg v. Hayes (No. 70-85) 1972. 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 that apply in court or in other situations do not apply during grand jury proceedings. For example, the exclusionary rule does not apply to certain evidence presented to a grand jury; the exclusionary rule states that evidence obtained in violation of the Fourth, Fifth or Sixth amendments cannot be introduced in court. Also, an individual does not have the right to have an attorney present in the grand jury room during hearings. An individual would have such a right during questioning by the police while in custody, but an individual testifying before a grand jury is free to leave the grand jury room to consult with his attorney outside the room before returning to answer a question.

The Bill of Rights in the National Archives

Currently, federal law permits the trial of misdemeanors without indictments. Additionally, in trials of non-capital felonies, the prosecution may proceed without indictments if the defendants waive their Fifth Amendment right.

Grand jury indictments may be amended by the prosecution only in limited circumstances. In Ex Parte Bain, 121 U.S. 1 (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 Ex parte Bain; 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 charges relating to service may be brought against members of the militia without indictments. As a decision, O'Callahan, however, lived for a limited duration and was more a reflection of Justice William O. Douglas's distrust of presidential power and anger at the Vietnam Conflict. O'Callahan was overturned in 1987, when the Court held that members of the militia in actual service may be tried for any offense without indictments.

The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment. This means the grand jury requirement applies only to felony charges in the federal court system. While many states do employ grand juries, no defendant has a Fifth Amendment right to a grand jury for criminal charges in state court. States are free to abolish grand juries and many (though not all) have replaced them with preliminary hearing.

Infamous crime

Whether a crime is "infamous", for purposes of the Grand Jury Clause, is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed; however, crimes punishable by death must be tried upon indictments. The historical origin of "infamous crime" comes from the infamia, a punishment under Roman law by which a citizen was deprived of his citizenship. In United States v. Moreland, 258 U.S. 433 (1922), the Supreme Court held that incarceration in a prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime. In Mackin v. United States, 117 U.S. 348 (1886), the Supreme Court judged that "'Infamous crimes' are thus, in the most explicit words, defined to be those 'punishable by imprisonment in the penitentiary'", while it later in Green v. United States 356 U.S. 165 (1957) stated that "imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year." Therefore, an infamous crime is one that is punished by imprisonment for over one year. Susan Brown, a former defense attorney and Professor of Law at the University Of Dayton School Of Law, concluded: "Since this is essentially the definition of a felony, infamous crimes translate as felonies."

Double jeopardy

... Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...

The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment. Jeopardy applies when the jury is empaneled in a jury trial, when the first witness is sworn in during a bench trial, or when a plea is rendered.

Prosecution after acquittal

The government is not permitted to appeal or try again after the entry of an acquittal, whether a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), or an "implied acquittal" via conviction of a lesser included offense. In addition, the government is barred by collateral estoppel from re-litigating against the same defense, a fact necessarily found by the jury in a prior acquittal, even if the jury hung on other counts.

This principle does not prevent the government from appealing a pre-trial motion to dismiss or other non-merits dismissal, or a directed verdict after a jury conviction, nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute. Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency, including habeas, or "thirteenth juror" appellate reversals notwithstanding sufficiency on the principle that jeopardy has not "terminated". There is also an exception for judicial bribery in a bench trial.

Multiple punishments, including prosecution after conviction

In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try to punish the defendant for two crimes if each crime contains an element that the other does not. Blockburger is the default rule, unless the legislature intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.

The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction. In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was satisfied, but Grady was overruled in United States v. Dixon (1993).

Prosecution after mistrial

The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith", i.e., goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial. The same standard governs mistrials granted sua sponte.

Prosecution in different states

In Heath v. Alabama (1985), the Supreme Court held that the Fifth Amendment rule against double jeopardy does not prohibit two different states from separately prosecuting and convicting the same individual for the same illegal act.

Self-incrimination

The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to "an accusation or charge of crime", or as involving oneself (or another person) "in a criminal prosecution or the danger thereof". The privilege against compelled self-incrimination is defined as "the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself". To "plead the Fifth" is to refuse to answer any question because "the implications of the question, in the setting in which it is asked" lead a claimant to possess a "reasonable cause to apprehend danger from a direct answer", believing that "a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."

Historically, the legal protection against compelled self-incrimination was directly related to the question of torture for extracting information and confessions.

The legal shift away from widespread use of torture and forced confession dates to the turmoil of the late 16th and early 17th century in England.

The Supreme Court of the United States has held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."

However, Professor James Joseph Duane of the Regent University School of Law argues that the Supreme Court, in a 5–4 decision in Salinas v. Texas, significantly weakened the privilege, saying "your choice to use the Fifth Amendment privilege can be used against you at trial depending exactly how and where you do it."

In the Salinas case, Justices Alito, Roberts, and Kennedy held that "the Fifth Amendment's privilege against self-incrimination does not extend to defendants who simply decide to remain mute during questioning. Long-standing judicial precedent has held that any witness who desires protection against self-incrimination must explicitly claim that protection."

Justice Thomas, siding with Alito, Roberts and Kennedy, in a separate opinion, held that, "Salinas' Fifth Amendment privilege would not have been applicable even if invoked because the prosecutor's testimony regarding his silence did not compel Salinas to give self-incriminating testimony." Justice Antonin Scalia joined Thomas' opinion.

Legal proceedings and congressional hearings

The Fifth Amendment privilege against compulsory self-incrimination applies when an individual is called to testify in a legal proceeding. The Supreme Court ruled that the privilege applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court, and whether the proceeding itself is criminal or civil.

The right to remain silent was asserted at grand jury or congressional hearings in the 1950s, when 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. Under the Red Scare hysteria at the time of McCarthyism, witnesses who refused to answer the questions were described by McCarthy as "fifth amendment communists". They lost jobs or positions in unions and other political organizations, and suffered other repercussions after "taking the Fifth".

Senator Joseph McCarthy (R-WI) routinely asked witnesses, "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. Admitting to a previous Communist Party membership was not sufficient. Witnesses were also required to "name names", i.e. implicate others they knew to be Communists or who had been Communists in the past. 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. He also "named names", which incurred enmity of many in Hollywood. Other entertainers such as Zero Mostel found themselves on a Hollywood blacklist after taking the Fifth, and were unable to find work for a while in show business.

The amendment has also been used by defendants and witnesses in criminal cases involving the American Mafia.

Statements made to non-governmental entities

The privilege against self-incrimination does not protect an individual from being suspended from membership in a non-governmental, self-regulatory organization (SRO), such as the New York Stock Exchange (NYSE), where the individual refuses to answer questions posed by the SRO. An SRO itself is not a law enforcement entity or court of law, and cannot send a person to jail. SROs, such as the NYSE and the National Association of Securities Dealers (NASD), are generally not considered to be state actors. (United States v. Solomon, D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., and Marchiano v. NASD.) SROs also lack subpoena powers. They rely heavily on requiring testimony from individuals by wielding the threat of loss of membership or a bar from the industry (permanent, if decided by the NASD) when the individual asserts the Fifth Amendment privilege against compelled self-incrimination. If a person chooses to provide statements in testimony to the SRO, the SRO may provide information about those statements to law enforcement agencies, which may then use the statements in a prosecution of the individual.

Custodial interrogation

The Fifth Amendment limits the use of evidence obtained illegally by law enforcement officers. Originally, at common law, even a confession obtained by torture was admissible. However, by the eighteenth century, common law in England provided that coerced confessions were inadmissible. The common law rule was incorporated into American law by the courts. The Supreme Court has repeatedly overruled convictions based on such confessions, in cases such as Brown v. Mississippi, 297 U.S. 278 (1936).

Law enforcement responded by switching to more subtle techniques, but the courts held that such techniques, even if they do not involve physical torture, may render 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. In Ashcraft v. Tennessee (1944), the suspect had been interrogated continuously for thirty-six hours under electric lights. In Haynes v. Washington, the Court held that an "unfair and inherently coercive context" including a prolonged interrogation rendered a confession inadmissible.

Miranda v. Arizona (1966) was a landmark case involving confessions. Ernesto Miranda had signed a statement confessing to the crime, but the Supreme Court held that the confession was inadmissible because the defendant had not been advised 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." Custodial interrogation is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of movement before being questioned as to the specifics of the crime. 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. Before 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 it is customarily delivered by the police to an individual before questioning. Miranda has been clarified by several further Supreme Court rulings. For the warning to be necessary, the questioning must be conducted under "custodial" circumstances. A person detained in jail or under arrest is, of course, deemed to be in police custody. Alternatively, a person who is under the reasonable belief that he may not freely leave from the restraint of law enforcement is also deemed to be in "custody". That determination of "reasonableness" is based on a totality of the objective circumstances. A mere presence at a police station may not be sufficient, but neither is such a presence required. Traffic stops are not deemed custodial. The Court has ruled that age can be an objective factor. In Yarborough v. Alvarado (2004), the Court held that "a state-court decision that failed to mention a 17-year-old's age as part of the Miranda custody analysis was not objectively unreasonable". In her concurring opinion Justice O'Connor wrote that a suspect's age may indeed "be relevant to the 'custody' inquiry"; the Court did not find it relevant in the specific case of Alvarado. The Court affirmed that age could be a relevant and objective factor in J.D.B. v. North Carolina where they ruled that "so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test".

The questioning does not have to be explicit to trigger Miranda rights. For example, two police officers engaging in a conversation designed to elicit an incriminating statement from a suspect would constitute questioning. A person may choose to waive his Miranda rights, but the prosecution has the burden of showing that such a waiver was actually made.

A confession not preceded by a Miranda warning where one was necessary cannot be admitted as evidence against the confessing party in a judicial proceeding. 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, to "impeach" the witness, even if it had been obtained without the warning.

In Hiibel v. Sixth Judicial District Court of Nevada (2004), the Supreme Court ruled 5–4 that being required to identify oneself to police under states' stop and identify statutes is not an unreasonable search or seizure, and is not necessarily self-incrimination.