Category Archives: Fifth Amendment

You probably already knew this, but we have a pretty good idea of what our users are searching for. Sure, it's a little creepy when Google knows your question before you even type it into the box. We don't get that personal, but we do pay attention to frequently searched terms in order to better understand -- and serve -- your needs.

Since today is Constitution Day, we thought we'd share the Top 5 FindLaw.com search terms related to the U.S. Constitution. You'll also find valuable resources for each topic listed below, but feel free to search for more:

1. "Gun Laws" (2nd Amendment) -- Regardless of your personal beliefs, we can all agree that an epidemic of gun-related tragedies has kept this issue on the front burner of our collective conscience. Although the right to bear arms is a federal guarantee, many state laws provide varying restrictions on gun ownership and use. You can learn more about these laws here:

2. "Miranda Rights" (5th Amendment and 6th Amendment) -- Nearly every crime show on TV will have an utterance of the words, "You have the right to remain silent..." Those are referred to as our Miranda rights, named for the U.S. Supreme Court case (Miranda v. Arizona) that requires police to inform arrestees of their constitutional rights. Check out these resources to learn more:

3. "Supreme Court Cases" -- The U.S. Supreme Court is where the constitutionality of laws is tested. Quite a few of our users simply typed "Supreme Court cases" into the search box, but there's a much easier way to find High Court opinions, news, and analysis of both recent and historical cases:

4. "Search and Seizure" (4th Amendment) -- Few constitutional provisions have been challenged and clarified as often as the Fourth Amendment, which protects citizens from unreasonable search and seizure by the police. Searches and seizures have a broad impact on criminal rights and procedures, such as the admissibility of evidence and the legality of arrests.

5. "Due Process" (5th Amendment and 14th Amendment) -- To honor "due process" is to follow the proper course of formal legal proceedings, carried out consistently, fairly, and in line with current laws and regulations. While the Fifth Amendment prohibits the arbitrary denial of life, liberty, or property by the federal government, the Fourteenth Amendment extends these protections to all U.S. citizens under all jurisdictions within the country.

It's hard to believe that a document signed exactly 227 years ago today is not only still valid, but continues to serve as the cornerstone of this great experiment we call the United States of America. FindLaw may not have been around as long as the U.S. Constitution, but we're always here to serve you.

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Top 5 Constitution-Related Searches at FindLaw.com

Fifth Amendment
Goss vs Lopez.

By: Dulcebee101

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Fifth Amendment - Video

As Eugene noted, a divided panel of the Ninth Circuit recently held that a child pornography conviction had to be reversed because the evidence was gathered in violation of the Posse Comitatus Act. Steve Vladeck has a post discussing the important and potentially certworthy issue in the case, which is whether a violation of that statute can trigger the exclusionary rule at all.

I confess that my initial reaction was skepticism. Consider Sanchez-Llamas v. Oregon:

We have applied the exclusionary rule primarily to deter constitutional violations. [In t]he few cases in which we have suppressed evidence for statutory violations the excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests.

Maybe the Posse Comitatus Act can be shown to implicate important Fourth and Fifth Amendment interests, but the Ninth Circuit didnt really show that, and it isnt obvious to me.

More generally, it seems to me that current exclusionary rule doctrine can be read in a couple of different ways:

One is the deterrence theory: Exclusion is appropriate when it seems like theres intentional and/or widespread and/or generally problematic illegality by the government. This refrain appears in a bunch of the cases, and its how the Ninth Circuit framed the analysis. Its not clear, however, that the analysis automatically applies in statutory cases (see above).

A second is the slow destruction theory: Under this theory, the exclusionary rule is unfounded and deleterious, and the rule and its works should be slowly destroyed. Some people read the Courts exclusionary rule precedents to be implicitly working toward this theory. It is not really put forward by the Court as a first-order justification, although quite a few of the opinions do frame their analysis by questioning the rules basis or justification.

Until recently, I would have ended this list there. But I have recently begun to give some credence to a third account of exclusionary rule doctrine put forward by my friend Richard Re in an article called The Due Process Exclusionary Rule.

Richard argues that today many searches and seizures should be seen as part of the criminal process and that the exclusionary rule is thus justified by the Due Process Clause, which forbids a conviction obtained through illegal process. While I am not yet sure that I agree with this view, I think it deserves serious consideration, and is the best alternative to the slow destruction theory that is on offer.

Here is what the article says about statutory violations (footnotes omitted):

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Volokh Conspiracy: What the posse comitatus case might mean for the future of the exclusionary rule

A school official, this one the superintendent in Litchfield, is not having his contract renewed by the school board. Why? The school board, officially, won't say.

"I can't disclose or discuss the contents of the board's discussion, or the rationale behind the vote," said school board chairman Dennis Miller, sounding very much like someone pleading the Fifth Amendment before Congress

Chairman Miller and a majority of the board have decided this is a "personnel matter" and therefore not for the public's ears.

Well, of course it is a personnel matter. But it involves a public employee, paid for with taxpayer dollars and not only responsible to the citizens of the school district, but in charge of the district.

Yet again, we have a case where elected officials, acting on the public's behalf, refuse to tell the public the reason for their actions. Such cases are happening too frequently.

The public has limited, but powerful, recourse. It can decide not to renew the employment "contracts" of school board members.

Some argue that they are elected to represent the public, which needs to just trust their judgment. But without knowing their reasoning for such important decisions as the hiring or firing of key personnel, how is that judgment to be assessed?

To his credit, board member John York, one of the two board members who opposed not renewing the contract, said it was more personality than anything else.

Supt. Brian Cochrane also spoke out to the Union Leader. And the world, surprise, didn't end.

The public doesn't need great specificity or gory details in such cases. But officials like Miller who won't explain their actions either don't care to take the time to do so or they really don't have a strong case in the first place.

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Public be damned Litchfield latest example

Invoking your Fifth Amendment rights is a sign of guilt, according to one Florida police officer.

TechDirt.com reports that one of its readers recently sent the website a video (below) of two people filming an area where prisoners are taken in and out of the Duval County courthouse in Jacksonville, Florida.

This area is known as a "sally port," and is in full view of a public sidewalk where the cameramen were filming from.

However, two officers from the Jacksonville Sheriffs Office recently tried to stop the men from filming.

In the video, one of the officers tells the cameramen this is a "secure area" and asks why they are filming.

One cameraman says, "I am filming in a public space.

The officer then wants to know the cameraman's name and why he refuses to tell him (the officer) why he is filming.

According to TheFreeThoughtProject.com, when the cameraman says he wants to "remain silent," the police officer appears to laugh and says, "You must be doing something wrong if you invoke your rights."

The officer then doubles down on his bizarre claim and refuses to show the cameraman the statute that bans people from filming prisoners entering and leaving the sally port.

Eventually, the officers leave the scene and allow the men to film.

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Cop Says 'You Must Be Doing Something Wrong if You Invoke Your Rights' (Video)

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'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 Fifth Amendment 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.' Kastigar v. U.S., 406 U.S. 441, 44-45 ('72). A reasonable belief that information concerning income or assets might be used to establish criminal failure to file a tax return can support a claim of Fifth Amendment privilege. See U.S. v. Rendahl, 746 F.2d 553, 55-56 (9th Cir.'84).

The only way the Fifth Amendment can be asserted as to testimony is on a question-by-question basis. Rendahl, 746 F.2d at 555, citing with approval U.S. v. Bell, 448 F.2d 40, 42 (9th Cir.'71) (Fifth Amendment challenge premature on appeal from enforcement order; appellant must present himself for questioning after enforcement and as to each question elect to raise or not to raise the defense).

The appropriate device for compelling answers to incriminating questions is a government grant of use immunity. See Sharp, 920 F.2d at 1172.

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"Fifth Amendment" Defined & Explained - Law

September 9, 2014, 2:42 PM Last updated: Tuesday, September 9, 2014, 3:45 PM

AP

Gov. Chris Christie

Governor Christie said Tuesday he is not pleased that several questions remain unanswered a year after local access lanes to the George Washington Bridge were closed tying up traffic in Fort lee for more than four days.

Chief among those questions is who ordered cones to be placed across the access lanes and why.

Christie was asked by a reporter during a news conference in Camden if he was satisfied by the answers obtained so far by the various investigations into the matter including one he called for by a team of lawyers that has so far cost taxpayers $7.2 million.

Related: GWB probe: New email exchange raises more questions

Some people havent answered questions, so I guess the answer would be no, Christie told a roomful of reporters.

The internal investigation Christie ordered of his office resulted in a report that found the governor did not know about the lane closures and placed the blame on Bridget Anne Kelly, the deputy chief of staff Christie fired after The Record reported in January that she sent the email, Time for some traffic problems in Fort Lee. The report also blamed David Wildstein, the former Christie appointee at the Port Authority, who Kelly sent the e-mail to. It raised questions about Bill Stepien, Christies two-time campaign manager though it didnt offer any conclusive evidence to tie him to the closures.

Wildstein provided documents to a legislative panel investigating the incident but cited the Fifth Amendment when he appeared before lawmakers, refusing to answer questions including whether he worked at the Port Authority. Both Kelly and Stepien successfully fought legislative subpoenas seeking documents in court by arguing their constitutional right to protect themselves against self incrimination.

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GWB probe: Christie says he's not satisfied with unanswered questions

September 9, 2014 4:45 PM Share with others:

By Torsten Ove / Pittsburgh Post-Gazette

A federal appeals court today overturned the conviction of a Texas man on drug charges, saying the government violated his Fifth Amendment right against self-incrimination during his trial here.

Gathon Shannon, 48, of Houston, described by the U.S. Drug Enforcement Administration as a courier in a Texas-to-Beaver County cocaine ring, was convicted by a federal jury and sentenced in 2013 to 20 years.

But a three-judge panel of the U.S. 3rd Circuit Court of Appeals today ruled that the prosecution violated his rights in cross-examining him about his silence following his arrest in 2011.

The circuit judges vacated the sentence imposed by U.S. District Judge Alan Bloch and ordered that Mr. Shannon receive a new trial.

Mr. Shannon was among a group of accused conspirators targeted by the U.S. attorney's Organized Crime and Drug Enforcement Task Force, which said the ring supplied much of Beaver County's cocaine demand from 2009 to 2011.

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Texas man's conviction overturned because of Fifth Amendment violation

The Kansas Supreme Court has upheld a Wyandotte County district court's dismissal of indictments against an attorney for the Board of Public Utilities of Kansas City, Kan.

The high court overturned a Court of Appeals reversal, agreeing with the district court that Robert Turner's constitutional right against self-incrimination had been violated during the grand jury proceedings.

A citizen-called grand jury in 2008 indicted Turner on two counts of theft and 55 counts of presenting a false claim, which was based on nonitemized vouchers totaling about $400,000 he submitted for work he did for BPU.

The grand jury had been called to look into allegations of misappropriation of public funds by directors of BPU, an arm of the Unified Government of Wyandotte County.

It was during testimony before the grand jury that William Delaney a special agent of the Kansas Bureau of Investigation who was assigned to serve as the investigator for the grand jury made repeated suggestions that Turner was somehow involved in the 1989 unsolved murder of Chuck Thompson, a Kansas City, Kan., politician and lawyer.

Delaney told jurors he had been investigating the case for years, and that he would be asking questions of people he thought were involved during the BPU probe.

The grand jury subpoenaed Turner, who gave notice in advance that he would invoke his Fifth Amendment right against self-incrimination. Delaney questioned him anyway, asking questions related not just to the BPU probe but also the Thompson murder. Turner, court records show, addressed about 100 or more questions by invoking his right against self-incrimination.

The district court, on appeal, ruled that Delaney's continual leading questioning and remarks to jurors suggesting that Turner's silence meant he had something to hide were prejudicial to Turner, and dismissed the indictments.

The Court of Appeals overturned the decision, saying a person can be compelled to appear before a grand jury and be asked questions to which he can invoke constitutional protections on a question-by-question basis. The appeals court said Turner had not demonstrated that he was prejudiced by Delaney's methods.

The Supreme Court disagreed.

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Kansas Supreme Court: Grand jury violated man's Fifth Amendment rights

Cristin Milioti in The Good Wife - Julianna Margulies
The Fifth Amendment of United States Constitution protects individuals from being forced to incriminate (be accused of a crime) themselves. Cristin #39;s charact...

By: Mario Rustan

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Cristin Milioti in The Good Wife - Julianna Margulies - Video