Category Archives: Fifth Amendment

On February 9th the political drama of President Trumps executive order took an old turn when his opponents translated a political fight into a constitutional question and thus dragged the courts into the ring of battle. This is nothing new. But I will leave discussion of that political truth for another day.

President Trump issued an executive order stopping immigration from seven specific countries. He did so under a federal statute - 8 USC 1182(f) which states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants

A limitation on that power is noted in 8 U.S.C. 1152(a)(1)(A) which states, regarding the granting of visas,

no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth, or place of residence.

The case was before the Ninth Circuit on appeal by the government asking for an emergency stay on the Temporary Restraining Order (TRO) that was granted by the District Court Washington. To prevail, the government had to establish that it was likely to prevail on the merits. The merits should have been based on sections 1182 and 1152.

It is a legal maxim that if a government action can be held lawful or unlawful based on statutory interpretation, the constitution is not to be invoked. In its brief the Trump Administration asserted that the executive order was lawful under section 1182, and the states of Washington and Minnesota, in part, argued that the executive order violated section 1152. The stated goal of the executive order was, to prevent infiltration by foreign terrorists or criminals and pursuant to that goal, I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from [Iraq, Syria, Libya, Somalia, Sudan, Yemen, and Iran] would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days. The state response was that the suspension was a vainly disguised ban on all Muslims; which is prohibited under section 1152.

The problem is that the Ninth Circuit opinion bypassed this argument entirely. There was no mention of either statute or the legal arguments that they provide either side.

The court bypassed the true legal dispute and engaged in the Fifth Amendment arguments that Washington and Minnesota asserted, in part, because they had a weak argument standing on section 1152 alone. The Fifth Amendment Due Process Clause protects a persons right to life, liberty and property and prevents the government from taking it without a hearing. The opinion asserted that under the Fifth Amendment Due Process clause, the executive order violated the rights of legal residents, citizens and aliens who wish to return to the United States and travel from the United States. The Government, in its papers and at oral argument, asserted that the application of the order to the first two groups was an error in application and would no longer apply to them. That should have made the entire issue regarding the order and its application to legal aliens and citizens moot! But the court held that since the order was applied to citizens and legal aliens in the first two days of the order and there was no official proclamation from the President himself preventing such application, the court could not take the word of a legal memo from the White House Legal Counsel that similar application would not occur in the future. As such, the executive order violated the Fifth Amendment.

To make a long story short, there is no Fifth Amendment right for people who are not citizens or legal residents to assert in the first place, and in the second, aliens who are not in the United States have no right to a visa. The Fifth Amendment applies to those who have property rights in the United States. That property right exists by being physically present, having legal status or being a citizen. It is true that illegal aliens have a right to a hearing once in the United States, but that is only to determine if they are illegal and should be removed. It does not create a right for travel, and the right to a hearing does not translate into a right to come to the United States from another country. To get around this the court held that aliens who have contracted with the state universities to come into the United States as students or teachers have created a Fifth Amendment Due Process property right to travel, that the state governments can defend on the aliens behalf.

Since the government could not prove, to the Ninths satisfaction, that it would prevail on the due process claim because it could not prove people from the seven countries were a threat, they were not entitled to an emergency stay of the TRO. The Government lost because it was held to a due process test, not to whether its executive order could be supported under section 1182. The court chose the wrong test.

But this error may not be long lived. A day after the decision, the Chief Judge of the Ninth Circuit informed the Government and the states of Washington and Minnesota that a judge on the court had made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel . . . should be reconsidered en banc. The court explained in a press release that under Federal Rules of Appellate Procedure and the Ninth Circuit General Orders, a circuit judge can also request that a vote be held on whether a decision should be reheard by an en banc panel, even if the parties have not requested it. This procedure is termed a sua sponte en banc call. The Chief Judges order gave both parties a deadline of February 16th setting forth their respective positions on whether this matter should be reconsidered en banc. The court explained in its release that after the briefs are filed, a vote is scheduled on the en banc call. . . .If a majority of the active, non-recused judges vote in favor of rehearing en banc, then the case is reheard by the en banc court. . . . The en banc court consists of the Chief Judge, and ten non-recused judges who are randomly drawn.

With such a request it is almost certain that the Ninth will review the decision en banc. Because many believe the panel decision was wrong on the law, there is a good chance this decision will be overruled.

See the original post:
Trump's Order and the Ninth Got it Wrong - WFMZ Allentown

Joel K. Goldstein VIncent C. Immel Professor of Law, Saint Louis University School of Law This post is hosted on the Huffington Post's Contributor platform. Contributors control their own work and post freely to our site. If you need to flag this entry as abusive, send us an email.

Fifty years ago today, Minnesota and Nevada ratified the proposed Twenty-fifth Amendment to the Constitution, providing the final support needed to make it part of our highest law. That Amendment was a significant accomplishment which created procedures to address some vexing problems regarding presidential continuity. And its enactment demonstrated how able and dedicated leadership can solve difficult problems, even those that had long resisted fixes.

Until 1967, the Constitution provided no means to fill a vice-presidential vacancy or to transfer power from a disabled president. Questions that Delawares John Dickinson asked at the Constitutional Convention (What is the extent of the term disability and who is to be the judge of it?) went unanswered for 175+ years. The problem was compounded after President William Henry Harrison died in April, 1841 and Vice President John Tyler claimed that he was president, not simply vice president acting as president as the founders intended. Tylers position was repeated seven times from 1841 to 1963 whenever a deceased president was replaced by his vice president. The Constitutions text treated the vice presidents status following a presidential inability the same as after a presidential death, removal or resignation. The Tyler Precedent inhibited vice presidents from exercising presidential responsibilities during presidential inabilities for fear of displacing the chief executive. So did the ideological, personal and constitutional distance between presidents and vice presidents for most of our history. No move was made to transfer power to Vice President Chester A. Arthur after President James Garfield was shot in 1881, even though the President was incapacitated during the last 80 days of his life. Similarly, Woodrow Wilson clung to power though incapacitated during much of the last 17 months of his presidency. First Lady Edith Bolling Wilson, not Vice President Thomas Marshall, essentially made executive decisions during this period. And presidential power remained with President Dwight D. Eisenhower during his three incapacities in the mid-1950s.

The Eisenhower disabilities amidst the Cold War and nuclear age prompted interest in addressing the problem of presidential inability. Eisenhower took important steps by entering into a letter agreement with Vice President Richard M. Nixon allowing either to initiate the temporary transfer of presidential powers and duties from Eisenhower to Nixon with Eisenhower retaining the right to reclaim them. Congress began considering constitutional amendments addressing presidential inability without reaching any consensus.

Following the assassination of President John F. Kennedy in November, 1963, Senator Birch Bayh, the newly-appointed chair of the Senate Subcommittee on Constitutional Amendments, proposed a constitutional amendment in December, 1963 which anticipated the eventual Amendment. So did principles suggested by a blue-ribbon American Bar Association group that included former Attorney General Herbert Brownell, future Supreme Court Justice Lewis Powell, iconic Harvard law professor Paul A. Freund, and John D. Feerick, a young New York lawyer, who had begun writing scholarly articles regarding presidential inability before the assassination.

The Amendment contains four sections. Section One adopted the Tyler Precedent following a presidential death, resignation or removal, but not after a presidential inability in which case the vice president simply acts as president. Section Two of the Amendment allowed the president to nominate a new vice president to fill a vice-presidential vacancy upon confirmation by each house of Congress. Section Three permitted the president to transfer presidential powers and duties to the vice president during a period of presidential inability and to reclaim them when the disability ends. Section four allowed the vice president and the majority of the Cabinet (or an alternative body should Congress create one) to transfer presidential powers and duties from the president during a presidential inability. The president can reclaim those powers upon a written declaration of his fitness to resume them unless the vice president and Cabinet contest his declaration in which case Congress decides the issue within a designated time.

Presidential succession and inability were not the sort of hot-button issues that attracted the engaged attention of many politicians. That was partly why longstanding problems persisted. Bayh was different. He pushed relentlessly and effectively for passage of the proposed amendment, involving colleagues on both sides of the aisle. Representatives Emanuel Celler and Richard Poff also played important roles. And Feericks scholarship informed legislative deliberations even while he worked with the ABA to achieve passage and ratification, the latter coming on February 10, 1967.

Three of the four sections of the Amendment have been utilized six times since its ratification. In October, 1973, Gerald R. Ford was nominated to fill a vice-presidential vacancy produced by the resignation of Spiro T. Agnew and confirmed less than two months later. In August, 1974, Ford succeeded to the presidency following Richard M. Nixons resignation. The following month, Ford nominated Nelson A. Rockefeller as vice president and Rockefeller was confirmed in December.

Two presidents have transferred presidential powers and duties to the vice president while they underwent surgery under general anesthesia on three occasions. In July, 1985, President Ronald Reagan transferred presidential powers to Vice President George H.W. Bush for eight hours while Reagan had a cancerous polyp removed. President George W. Bush briefly transferred powers to Vice President Dick Cheney in 2002 and 2007 while he underwent colonoscopies.

The early uses of the Amendment confirm its contributions to Americas system of assuring presidential continuity. The impeachment proceedings that forced Nixons resignation would have been complicated without the ability to install Republican Ford as vice president when Democratic Speaker of the House Carl Albert was otherwise next-in-line. Whereas the vice presidency was vacant for 21% of American history before the Twenty-fifth Amendment was ratified, since then it has been unoccupied for only 6 months or less than .1%, thereby diminishing the importance of the remainder of the line of succession where the solutions are less attractive. Section Three and Four encourage a transfer of power when a president is physically or mentally unable to perform by providing procedures, identifying decision-makers, and allowing the president to resume office upon the end of the incapacity.

The framers of the Twenty-fifth Amendment recognized other problems in Americas system for providing presidential continuity but deferred them to later legislatures after concluding that broadening their effort would prevent any progress. These problems include the following: the line of succession after the vice presidency currently runs through legislative leaders who might not belong to the presidents party; no provisions exist to declare a vice president disabled; the electoral system presents various vulnerable spots. Congress should address these and other gaps in the very near future.

That would be a fitting tribute to the great contributions of Bayh, Feerick and others that culminated fifty years ago with the ratification of the Twenty-fifth Amendment, and would continue their great work of improving our system of government.

Original post:
Celebrating the 50th of the 25th Amendment! | The Huffington Post - Huffington Post

The Sixth Circuit todaydismissed Wayside Church v. Van Buren County, a case challenging Michigans unconstitutional tax foreclosure scheme. Judge Kethledge who dissented from the panels decision, summed up the case this way:

In this case the defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the difference. In some legal precincts that sort of behavior is called theft. But under the Michigan General Property Tax Act, apparently, that behavior is called tax collection.

You read that right. When Wayside Church fell behind on its taxes on a piece of land it used for youth camp, Van Buren County took the property and sold it for $206,000 to satisfy $16,750 in tax debt, interest, penalties, and fees. The County kept all of the profit$189,250.

When the church couldnt get its equity back from the government, it filed a Fifth Amendment Takings Claim, along with two other individuals who similarly lost their property over relatively small tax debts. The Fifth Amendment prohibits government from taking private property without paying just compensation. As PLF explained in an amicus brieffiled last year in support of the church and other property owners, government can take property for taxes, costs, and penalties due, but it violates the Constitution when it takes and keeps more than that. Indeed, most states recognize that dispossessed property owners should be compensated the surplus proceeds from the sale of tax-foreclosed property.

Unfortunately, today the Sixth Circuit did not even decide whether the Fifth Amendments Takings Clause protects property owners. Instead, it dismissed the case, holding that it was not ripe under Williamson County Regional Planning Commn v. Hamilton Bank of Johnson City. The court held that Michigan courts offer reasonable, certain, and adequate remedy for Wayside Churchs constitutional claim. The court is wrong. As thedissenting opinion explains, Michigan law is unclear about whether state courts allow a takings challenge to the state tax law. And so far, Michigan courts have dismissed cases just like this one, claiming that the Constitution does not protect people from this kind of confiscation.

As the Liberty Blog has noted many times before, Williamson County hurts Americans ability to enforce their federally protected Constitutional rights. Usually when the local government violates constitutionally protected rights, citizens can seek protection from federal courts. But Williamson County creates a unique obstacle for Fifth Amendment takings claims. Justice Thomas recently urged the Supreme Court tofix the quagmire created byWilliamson County. For the sake of churches and landowners in Michigan, lets hope the rest of the Justices take that advicesoon.

Go here to read the rest:
Sixth Circuit slams the courthouse doors to takings case - Pacific Legal Foundation (PLF) (press release) (blog)

Tag Archives: Fifth Amendment Scholars and Rogues 9th_circuit_seal Today a three judge panel from the 9th Circuit Court of Appeals ruled unanimously that they would not overturn the injunction blocking most of Donald's immigration and travel ban Executive Order. I read the entire ruling, and I've ... and more »

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Tag Archives: Fifth Amendment - Scholars and Rogues

SAN BERNARDINO >> With trial set to begin Feb. 21 for three San Bernardino County sheriffs deputies accused of assaulting a man following a chase through the High Desert, their alleged victim has refused to testify against them.

Francis Pusok, 32, of Hesperia, appeared on Wednesday before Judge Dwight W. Moore in San Bernardino Superior Court, taking the witness stand with his attorney, Jim Terrell. Pusok pleaded the Fifth Amendment, a Constitutional law allowing witnesses to refuse to testify in court if the information they provide could be self-incriminating.

Moore asked Pusok if it was his intention to answer no questions at trial regarding the beating incident that occurred on April 9, 2015 in Hesperia, to which Pusok replied, Yes.

He has nothing to gain from testifying at that trial, nothing at all, Terrell said after Wednesdays hearing. He said anything Pusok would testify to at the trial of deputies Nicholas Downey, Michael Phelps and Charles Foster could be used against him at his own trial.

Pusok, a convicted felon with a long history of criminal offenses, has been charged with 11 felonies and three misdemeanors in connection with the 3-hour pursuit through Apple Valley and Hesperia that culminated with the deputies repeatedly punching and kicking him. The incident was captured on video by an NBC news crew hovering overhead in a helicopter.

Prosecutor Robert Bulloch said following Wednesdays hearing that he wasnt surprised by Pusok exercising his Constitutional right not to testify.

Its not a situation that has been unanticipated. He didnt testify at the preliminary hearing, and it was the same issue at that point in time, Bulloch said. Well just have to build our case. The video speaks for itself.

In September 2015, the District Attorneys Office charged each of the three deputies with one felony count of assault by a public officer. They face a maximum sentence of 16 months in prison if convicted.

All three deputies have pleaded not guilty.

In other case developments Wednesday, Bulloch and defense attorneys battled it out over whether to allow information about Pusoks criminal history and incidents of resisting arrest to be disclosed to the jury.

Bulloch argued that the information, if allowed in as evidence, would be prejudicial to a jury, while defense attorneys argued that such information would help the jury understand why the deputies acted so aggressively when detaining Pusok.

I think the confines of what this case is about should narrow the parameters of whats relevant for purposes of this trial, Bulloch said. Otherwise, without any limitations, without any understanding of what exactly theyre seeking to put in here, we have 43 witnesses of (Pusoks) prior misconduct.

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Downeys attorney, Michael Schwartz, said the evidence would show the jury the kind of person Pusok is that he had a propensity to resist arrest which is exactly what happened on April 9, 2015.

You have situations where an alleged victim is acting consistent with how they acted in the past, and the jury should realize... it wasnt in a vacuum. This is who he is, Schwartz said.

Moore called the situation a can of worms. He said the question was not what transgressions Pusok committed in the past, but what knowledge deputies had about Pusoks past. He said he would allow in only evidence that showed the defendants knowledge of Pusoks criminal history and incidents of resisting arrest.

Jury selection begins on Feb. 21.

See the rest here:
Hesperia man will not testify against deputies charged with ... - San Bernardino County Sun

Legal Topics > Criminal Law and Police > General Criminal Law > Criminal Law

When a person is charged with a crime, they become a criminal defendant. The government must prove guilt beyond a reasonable doubt before convicting and punishing a defendant for a crime.

The United States Constitution provides criminal defendants with many constitutional rights. These rights control how the government investigates, prosecutes and punishes criminal behavior. These include rights provided in the fourth, fifth, sixth, and eighth amendments.

The Fourth Amendment protection against unreasonable searches and seizures:

The Fifth Amendment protects against self-incrimination (the right to remain silent) and double jeopardy:

The Sixth Amendment provides criminal defendants with the right to legal representation, the right to a speedy trial, and the right to confront witnesses:

The Eighth Amendment provides criminal defendants with the right to a reasonable bail and the right to not be subjected to cruel and unusual punishment:

Yes. Legal representation can be crucial if you are charged with a crime. Criminal charges are life changing and it is in your best interest to get counsel. An experienced defense attorney can help protect your rights and represent you in court.

Consult a Lawyer - Present Your Case Now! Last Modified: 06-16-2015 02:09 PM PDT

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Original post:
Rights of Criminal Defendants | LegalMatch Law Library

Wow hope that folks at Apple, Samsung, Motorola, etc. see this.

In response to an incident that lacked any relation to the last fingerprint-related news, a Minnesota court ruled against a recent Fifth Amendment appeal regarding device passwords. The Minnesota Court of Appeals ruled that ordering an individual to unlock a device with a fingerprint is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.

The case in question involved Matthew Vaughn Diamond, a man Carver County District Court found guilty in 2015 of burglary and theft, among other crimes. Other news outlets cite arrest records from far before 2015, but the records showed no relevance to the January 2017 ruling. The Carver County District Court fought Diamond over his phones contentshe locked the phone with a fingerprint and refused to unlock the phone for the court. He argued, initially, that forcing his fingerprint violated both his Fourth and Fifth Amendment rights. However, the Minnesota Court of Appeals heard only the Fifth Amendment appeal.

According to the Fifth Amendment, compelled self-incrimination is a violation of human rights. The Supreme Court 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. Additionally, the right to remain silent from the Miranda Rights, read to an arrestee at the time of arrest, granted a suspect the ability to refuse questions. Additionally, at the minimum, gave suspects the right to avoid answering questions legally and without fear of immediate repercussions.

Read the rest here:
Blog - Lifeboat Foundation (blog)

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ."[1] The four essential protections included are prohibitions against, for the same offense:

Jeopardy attaches in jury trial when the jury is empaneled and sworn in, in a bench trial when the court begins to hear evidence after the first witness is sworn in, or when a court accepts a defendant's plea unconditionally.[2] Jeopardy does not attach in a retrial of a conviction that was reversed on appeal on procedural grounds (as opposed to evidentiary insufficiency grounds), in a retrial for which "manifest necessity" has been shown following a mistrial, and in the seating of another grand jury if the prior one refuses to return an indictment.

In United States v. Felix 503 U.S. 378 (1992), the U.S. Supreme Court ruled: "a[n]...offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes."[3][4]

Sometimes the same conduct may violate different statutes. If all elements of a lesser offense are relied on to prove a greater offense, the two crimes are the "same offense" for double jeopardy purposes, and the doctrine will bar the second prosecution. 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".[5] The test was applied in Brown v. Ohio, 432 U.S. 161 (1977), where 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.

Once acquitted, a defendant may not be retried for the same offense: "A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense."[6] Acquittal by directed verdict is also final and cannot be appealed by the prosecution.[7] An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution.[8] A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, the judge's determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated. Additionally, although a judge may overrule a guilty verdict by a jury, he or she does not have the same power to overrule a not guilty verdict.

More specifically, as stated in Ashe v. Swenson, 397 U.S. 436 (1970): "...when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Res judicata is a term of general application. Underneath that conceptual umbrella is the concept of collateral estoppel. As applied to double jeopardy, the court will use collateral estoppel as its basis for forming an opinion[citation needed].

If a defendant charged with murder in the first degree is convicted for 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.

As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply, despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause because a mistrial ends a trial prematurely without a judgment of guilty or not, as decided by the U.S. Supreme Court in United States v. Josef Perez (1824). Cases dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for substantially limited prosecutorial appeals from these orders. Also, a retrial after a conviction that has been set aside following the grant of a motion for new trial, that has been reversed on appeal, or that has been vacated in a collateral proceeding (such as habeas corpus) would not violate double jeopardy because the judgment in the first trial had been invalidated. In all of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.

Prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding verdict for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict and so would not place the defendant at risk of another trial.

If a defendant appeals a conviction and is successful in having it overturned, they are subject to retrial.

Retrial is not possible 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), the Court held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient."[9]

If the earlier trial is a fraud, double jeopardy will not prohibit a new trial because the party acquitted has prevented themselves from being placed into "jeopardy" to begin with.[10]

The Double Jeopardy Clause of the Fifth Amendment does not attach in a grand jury proceeding, or bar a grand jury from returning an indictment when a prior grand jury has refused to do so.[11]

A person who is convicted of one set of charges cannot in general be tried on additional charges related to the crime unless said additional charges cover new facts against which the person in question has not yet been acquitted or convicted. The test that determines whether this can occur is the Blockburger test.

An example of this are the charges of "conspiring to commit murder" and "murder". Both charges typically have facts distinct from each other. A person can be charged with "conspiring to commit murder" even if the murder never actually takes place if all facts necessary to support the charge can be demonstrated through evidence. Further, a person convicted or acquitted of murder can, additionally, be tried on conspiracy as well if it has been determined after the conviction or acquittal that a conspiracy did, in fact, take place.

Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes 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 as was addressed in United States v. Josef Perez, 22 U.S. 579 (1824). 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."

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.[citation needed]

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), a judge had held a separate hearing after the jury trial to decide if the sentence should be death or life imprisonment, in which he 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 conclusion 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.

Double jeopardy also does not apply if the later charge is civil rather than criminal in nature, which involves a different legal standard (crimes must be proven beyond a reasonable doubt, whereas civil wrongs need only be proven by preponderance of evidence or in some matters, clear and convincing evidence). Acquittal in a criminal case does not prevent the defendant from being the defendant in a civil suit relating to the same incident (though res judicata operates within the civil court system). For example, O. J. Simpson was acquitted of a double homicide in a California criminal prosecution, but lost a civil wrongful death claim brought over the same victims.[12]

If the defendant happened to be on parole from an earlier offense at the time, the act for which he or she was acquitted may also be the subject of a parole violation hearing, which is not considered to be a criminal trial. Since parolees are usually subject to restrictions not imposed on other citizens, evidence of actions that were not deemed to be criminal by the court may be re-considered by the parole board. This legal board could deem the same evidence to be proof of a parole violation. Most states' parole boards have looser rules of evidence than is found in the courts for example, hearsay that had been disallowed in court might be considered by a parole board. Finally, like civil trials parole violation hearings are also subject to a lower standard of proof so it is possible for a parolee to be punished by the parole board for criminal actions that he or she was acquitted of in court.

In the American military, courts-martial are subject to the same law of double jeopardy, since the Uniform Code of Military Justice has incorporated all of the protections of the U.S. Constitution. The non-criminal proceeding non-judicial punishment (or NJP) is considered to be akin to a civil case and is subject to lower standards than a court-martial, which is the same as a civilian court of law. NJP proceedings are commonly used to correct or punish minor breaches of military discipline. If a NJP proceeding fails to produce conclusive evidence, however, the commanding officer (or ranking official presiding over the NJP) is not allowed to prepare the same charge against the military member in question. In a court-martial, acquittal of the defendant means he is protected permanently from having those charges reinstated.

The most famous American court case invoking the claim of double jeopardy is probably the second murder trial in 1876 of Jack McCall, killer of Wild Bill Hickok. McCall was acquitted in his first trial, which Federal authorities later ruled to be illegal because it took place in an illegal town, Deadwood, then located in South Dakota Indian Territory. At the time, Federal law prohibited all except Native Americans from settling in the Indian Territory. McCall was retried in Federal Indian Territorial court, convicted, and hanged in 1877. He was the first person ever executed by Federal authorities in the Dakota Territory.

Double jeopardy also does not apply if the defendant were never tried from the start. Charges that were dropped or put on hold for any reason can always be reinstated in the futureif not barred by some statute of limitations.

Although the Fifth Amendment initially applied only to the federal government, the U.S. Supreme Court has ruled that the double jeopardy clause applies to the states as well through incorporation by the Fourteenth Amendment (Benton v. Maryland).

The government of the United States and of each State therein may each enact their own laws and prosecute crimes pursuant thereto, provided there is no prohibition by the Constitution of the United States or of the state in question. Such is known as the "dual sovereignty" or "separate sovereigns" doctrine.

The earliest case at the Supreme Court of the United States to address the matter is Fox v. State of Ohio[13] in 1847, in which the petitioner, Malinda Fox, was appealing a conviction of a state crime of passing a counterfeit silver dollar. The power to coin money is granted exclusively to Congress, and it was argued that Congress's power precludes the power of any State from prosecuting any crimes pertaining to the money, an argument the Supreme Court rejected in upholding Fox's conviction.

A case that followed on Fox is United States v. Cruikshank,[14] in which the Supreme Court stated that the government of the United States is a separate sovereign from any State:

This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

In 1920 the United States was fresh in to the Prohibition Era. In one prosecution that occurred in Washington state, a defendant named Lanza was charged under a Washington statute and simultaneously under a United States statute, with the federal indictment stating several facts also stated in the Washington indictment. The Supreme Court addressed the question of the Federal government and a State government having separate prosecutions on the same facts in United States v. Lanza:[15]

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.

It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government (Barron v. City of Baltimore, 7 Pet. 243), and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority.

There may also be Federal laws that call other facts into question beyond the scope of any State law. A state may try a defendant for murder, after which the Federal government might try the same defendant for a Federal crime (perhaps a civil rights violation or a kidnapping) connected to the same act. The officers of the Los Angeles Police Department who were charged with assaulting Rodney King in 1991 were acquitted by a jury of the Superior Court, but some were later convicted and sentenced in Federal court for violating King's civil rights. Similar legal processes were used for prosecuting racially motivated crimes in the Southern United States in the 1960s during the time of the Civil Rights movement, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries that were thought to be racist or overly sympathetic with the accused in local courts.

Federal jurisdiction may apply because the defendant is a member of the armed forces or the victim(s) are armed forces members or dependents. U.S. Army Master Sergeant Timothy B. Hennis was acquitted in state court in North Carolina for the murders in 1985 of Kathryn Eastburn (age 31) and her daughters Kara, age five, and Erin, age three, who were stabbed to death in their home near Fort Bragg, North Carolina.[16] Two decades later, Hennis was recalled to active duty, court-martialed by the Army for the crime, and convicted.[17] Richard Dieter, executive director of the Death Penalty Information Center, observed of this case, "Certainly, no one [in the US] has been exonerated and then returned to death row for the same crime except Hennis."[18]

Furthermore, as ruled in Heath v. Alabama (1985), the "separate sovereigns" rule allows two states to prosecute for the same criminal act. For example, if a man stood in New York and shot and killed a man standing over the border in Connecticut, both New York and Connecticut could charge the shooter with murder.[19]

Only the states and tribal jurisdictions[20] are recognized as possessing a separate sovereignty, whereas territories, commonwealths (for example, Puerto Rico), the military and naval forces, and the capital city of Washington, D.C., are exclusively under Federal sovereignty. Acquittal in the court system of any of these entities would therefore preclude a re-trial (or a court-martial) in any court system under Federal jurisdiction.

Though the Supreme Court of the United States has recognized the dual sovereignty doctrine as an exception to double jeopardy, the United States will not exercise its dual sovereignty power on everyone who becomes subject to it. As a self-imposed limitation on its dual sovereignty power, the United States Department of Justice has a policy called the "Petite" policy, named after Petite v. United States, 361 U.S. 529 (1960). The formal name of the policy is "Dual and Successive Prosecution Policy" [21] and it "establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding."

Under this policy, the Department of Justice presumes that any prosecution at the State level for any fact applicable to any Federal charge vindicates any Federal interest in those facts, even if the outcome is an acquittal. As an example, a person who commits murder within the jurisdiction of a State is subject to that State's murder statute and the United States murder statute (18 U.S.C.1111). The Federal government will defer to the State to prosecute under their statute. Whatever the outcome of the trial, acquittal or conviction, the Department of Justice will presume that prosecution to vindicate any Federal interest and will not initiate prosecution under the United States Code.

However that presumption can be overcome. The policy stipulates five criteria that may overcome that presumption:

The existence of any of these criteria is to be determined by an Assistant Attorney General of the United States. If a prosecution is determined to have proceeded without authorization, the Federal government may and has requested the Court vacate an indictment. Such a move is in line with the Courts vacating indictments wherein prosecutions were discovered to have violated Department of Justice policy. Indictments have also been vacated when the Federal government first represents to the Court the prosecution was authorized but later determines that authorization to have been mistaken.[22]

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Double Jeopardy Clause - Wikipedia

The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with succession to the Presidency and establishes procedures both for filling a vacancy in the office of the Vice President, as well as responding to Presidential disabilities. It supersedes the ambiguous wording of Article II, Section 1, Clause 6 of the Constitution, which does not expressly state whether the Vice President becomes the President or Acting President if the President dies, resigns, is removed from office or is otherwise unable to discharge the powers of the presidency.[1] The Twenty-fifth Amendment was adopted on February 10, 1967.[2]

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.[3]

Article II, Section 1, Clause 6 of the Constitution states:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

That clause was unclear regarding Presidential succession and inability; it did not state who had the power to declare a President incapacitated.[1] Also, it did not provide a mechanism for filling a Vice Presidential vacancy prior to the next Presidential election. The vagueness of this clause caused difficulties many times before the Twenty-fifth Amendment's adoption:

President Dwight D. Eisenhower attempted to clarify procedures through a signed agreement with Vice President Richard Nixon, drafted by Attorney General Herbert Brownell Jr.. However, this agreement did not have the authority of a constitutional amendment.[9]

All of these incidents made it evident that clearer guidelines were needed.[1] There were two proposals for providing those guidelines.

In 1963, Senator Kenneth Keating of New York proposed a Constitutional amendment which would have enabled Congress to enact legislation providing for how to determine when a President is disabled, rather than, as the Twenty-fifth Amendment does, having the Constitution so provide.[10] This proposal was based upon a recommendation of the American Bar Association in 1960.[11]

The text of the proposal read:[12]

In case of the removal of the President from office or of his death or resignation, the said office shall devolve on the Vice President. In case of the inability of the President to discharge the powers and duties of the said office, the said powers and duties shall devolve on the Vice President, until the inability be removed. The Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then be President, or, in case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.

Senators raised concerns that the Congress could either abuse such authority[13] or neglect to enact any such legislation after the adoption of this proposal.[14]Tennessee Senator Estes Kefauver (the Chairman of the Senate Judiciary Committee's Subcommittee on Constitutional Amendments), a long-time advocate for addressing the disability question, spearheaded the effort until he died of a heart attack on August 10, 1963.[15][16] Senator Keating was defeated in the 1964 election, but Senator Roman Hruska, a Republican from Nebraska, took up Keating's objections as a new member of the Subcommittee on Constitutional Amendments.[9]

The assassination of President John F. Kennedy showed the need for a clear way to determine presidential succession in the context of the Cold War.[17] The new President, Lyndon B. Johnson, had once suffered a heart attack,[18] and the next two people in line for the presidency were the 71 year old Speaker of the House John McCormack,[17][19] and the 86 year old Senate President pro tempore Carl Hayden.[17][19] Senator Birch Bayh succeeded Kefauver as Chairman of the Subcommittee on Constitutional Amendments and set about advocating for a detailed amendment dealing with presidential succession.[17]

On January 6, 1965, Senator Birch Bayh proposed S. J. Res. 1 in the Senate and Representative Emanuel Celler (Chairman of the House Judiciary Committee) proposed H. J. Res. 1 in the House of Representatives. Their proposal specified the process by which a President could be declared disabled, thereby making the Vice President an Acting President, and how the President could regain the powers of his office. Also, their proposal provided a way to fill a vacancy in the office of Vice President before the next presidential election. This was as opposed to the KeatingKefauver proposal, which neither provided for filling a vacancy in the office of Vice President prior to the next presidential election nor provided a process for determining presidential disability. In 1964, the American Bar Association endorsed the type of proposal which Bayh and Celler advocated.[20] On January 28, 1965, President Johnson endorsed S. J. Res. 1 in a statement to Congress.[9]

On February 19, the Senate passed the amendment, but the House passed a different version of the amendment on April 13. On April 22, it was returned to the Senate with revisions.[9] There were four areas of disagreement between the House and Senate versions:

On July 6, after a conference committee ironed out differences between the versions,[21] the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.[22]

The Congress proposed the Twenty-fifth Amendment on July 6, 1965, and the amendment was ratified by the following states:[2]

The following states have not ratified the amendment:

Just six days after its submission, Nebraska and Wisconsin were the first states to ratify the amendment. On February 10, 1967, Minnesota and Nevada were the 37th and 38th states to ratify, respectively. On February 23, 1967, in a ceremony in the East Room of the White House, General Services Administrator Lawson Knott certified the amendment's adoption.

Section 1 codified the "Tyler Precedent" regarding when a President is removed from office, dies, or resigns. In any of these situations, the Vice President immediately becomes President.

Prior to the Twenty-fifth Amendment's adoption, a Vice Presidential vacancy remained until the start of the next presidential term. The Vice Presidency has been vacant several times due to death, resignation, or succession to the Presidency. Often these vacancies lasted for several years.

Under Section 2, whenever there is a vacancy in the office of Vice President, the President nominates a successor who becomes Vice President if confirmed by a majority vote of both Houses of the Congress.

Section 3 provides that when the President transmits a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives, stating that he is unable to discharge the powers and duties of the Presidency, and until the President sends another written declaration to the aforementioned officers declaring himself able to resume discharging those powers and duties, the Vice President serves as Acting President.

Section 4 is the only part of the amendment that has never been invoked.[23] It allows the Vice President, together with a majority of either "the principal officers of the executive departments" (i.e., the Cabinet) or of "such other body as Congress may by law provide", to declare the President disabled by submitting a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives. As with Section 3, the Vice President would become Acting President.

Section 4 is meant to be invoked if the President's incapacitation prevents him from discharging the duties of his office and he does not provide a written declaration to that effect. The President may resume exercising the Presidential duties by sending a written declaration to the President pro tempore and the Speaker of the House.

Should the Vice President and Cabinet believe the President is still disabled, they may within four days of the President's declaration submit another declaration that the President is incapacitated. The Congress must then assemble within 48 hours if not in session. The Congress then has 21 days to decide the issue. If within the 21 days allotted two-thirds of each House of Congress vote that the President is incapacitated, Section 4 states that the Vice President would "continue" to be Acting President. Should the Congress resolve the issue in favor of the President, or if the Congress makes no decision within the 21 days allotted, then the President would "resume" discharging all of the powers and duties of his office. The use of the words "continue" and "resume" imply that the Vice President remains Acting President while Congress deliberates.

However, the President may again submit a written declaration of recovery to the President pro tempore and the Speaker of the House. That declaration could be responded to by the Acting President and the Cabinet in the same way as stated earlier. The allotted 21-day Congressional procedure would start again.

The Twenty-fifth Amendment has been invoked six times since its ratification. The first three times were applications of Sections 1 and 2 in the context of scandals surrounding the Nixon Administration. The latter three were applications of Section 3 in connection to the President's undergoing a medical procedure requiring general anesthesia.

On October 12, 1973, following Vice President Spiro Agnew's resignation two days earlier, President Richard Nixon nominated Representative Gerald Ford of Michigan to succeed Agnew as Vice President.

The United States Senate voted 923 to confirm Ford on November 27 and, on December 6, the House of Representatives did the same by a vote of 38735. Ford was sworn in later that day before a joint session of the United States Congress.[24]

President Richard Nixon resigned on August 9, 1974, resulting in Vice President Gerald Ford succeeding to the office of President.[25] Gerald Ford is the only person ever to be Vice President, and later President, without being elected to either office.[26]

When Gerald Ford became President, the Vice Presidency became vacant. On August 20, 1974, after having previously considered Melvin Laird and George Bush, President Ford nominated former New York Governor Nelson Rockefeller to succeed him as Vice President.

On December 10, 1974, Rockefeller was confirmed 907 by the Senate. On December 19, 1974, Rockefeller was confirmed 287128 by the House and sworn into office later that day in the Senate chamber.[24]

On July 12, 1985, President Ronald Reagan underwent a colonoscopy, during which a pre-cancerous lesion called a villous adenoma was discovered. Upon being told by his physician (Dr. Edward Cattow) that he could undergo surgery immediately or in two to three weeks, Reagan elected to have it removed immediately.

That afternoon, Reagan consulted with White House counsel Fred Fielding by telephone, debating whether to invoke the amendment and, if so, whether such a transfer would set an undesirable precedent. Fielding and White House Chief of Staff Donald Regan recommended that Reagan transfer power and two letters doing so were drafted: the first letter specifically invoked Section 3 of the Twenty-fifth Amendment; the second only mentioned that Reagan was mindful of this provision. At 10:32a.m. on July 13, Reagan signed the second letter and ordered its delivery to the appropriate officers as required under the amendment.[27]

Books such as The President Has Been Shot: Confusion, Disability and the 25th Amendment, by Herbert Abrams, and Reagan's autobiography, An American Life, argue President Reagan's intent to transfer power to Vice President Bush was clear. Fielding himself adds:

I personally know he did intend to invoke the amendment, and he conveyed that to all of his staff and it was conveyed to the VP as well as the President of the Senate. He was also very firm in his wish not to create a precedent binding his successor.

On June 29, 2002, President George W. Bush underwent a colonoscopy and chose to invoke Section 3 of the amendment, temporarily transferring his powers to Vice President Dick Cheney. The medical procedure began at 7:09a.m. EDT and ended at 7:29a.m. EDT. Bush woke up twenty minutes later, but did not resume his presidential powers and duties until 9:24a.m. EDT after the president's doctor, Richard Tubb, conducted an overall examination. Tubb said he recommended the additional time to make sure the sedative had no aftereffects. Unlike Reagan's 1985 letter, Bush's 2002 letter specifically cited Section 3 as the authority for the transfer of power.[27]

On July 21, 2007, President Bush again invoked the amendment in response to having to undergo a colonoscopy, temporarily transferring his powers to Vice President Cheney. President Bush invoked Section 3 at 7:16a.m. EDT. He reclaimed his powers at 9:21a.m. EDT. As happened in 2002, Bush specifically cited Section 3 when he transferred the Presidential powers to the Vice President and when he reclaimed those powers.[27]

There are two documented instances in which invocation of Section 4 of the Twenty-fifth Amendment was considered, both of which involved the 40th President of the United States, Ronald Reagan.

Following the attempted assassination of Ronald Reagan on March 30, 1981, Vice President George Bush did not assume the presidential powers and duties as Acting President. Reagan was unable to invoke Section 3, because he was in surgery. Bush did not invoke Section 4, because he was on a plane returning from Texas. Reagan was out of surgery by the time Bush arrived in Washington.[28] In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked.[29]

Upon becoming the White House Chief of Staff in 1987, Howard Baker was advised by his predecessor's staff to be prepared for a possible invocation of the Twenty-fifth Amendment[30] due to Reagan's perceived laziness and ineptitude.[31]

According to the PBS program American Experience,

What Baker's transition team was told by Donald Regan's staff that weekend shocked them. Reagan was 'inattentive, inept,' and 'lazy,' and Baker should be prepared to invoke the 25th Amendment to relieve him of his duties.

Reagan biographer Edmund Morris stated in an interview aired on the program,

The incoming Baker people all decided to have a meeting with him on Monday, their first official meeting with the President, and to cluster around the table in the Cabinet room and watch him very, very closely to see how he behaved, to see if he was indeed losing his mental grip.

Morris went on to explain,

Reagan who was, of course, completely unaware that they were launching a death watch on him, came in stimulated by the press of all these new people and performed splendidly. At the end of the meeting, they figuratively threw up their hands realizing he was in perfect command of himself.[31]

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Twenty-fifth Amendment to the United States Constitution ...

The Fifth Amendment, as with the rest of the Bill of Rights, is a superfluous restraint on federal power. It can be argued that the Fifth Amendment is not superfluous because it imposes certain specified limits and conditions on the federal governments use of legislative powers pursuant to its Enumerated Powers under Article I, Section 8. However, this distinction is of little significance.

The Fifth Amendment can be broken down as follows. In any federal matter, an individual:

- must be indicted by a grand jury to answer for a capital crime, unless certain conditions are present;

- may not face trial more than once for the same crime; may not be compelled to testify against oneself in a criminal case;

- may not be deprived of life, liberty or property without due process.

Lastly, the federal government may not take private property for public use (pursuant to its Enumerated Powers), without providing fair compensation to the property owner.

Fifth Amendment and Eminent Domain Abuse

There was an uproar throughout the United States in 2005 when the Supreme Court handed down its decision in Kelo v. City of New London.

The Supreme Courts decision, written by Justice John Paul Stevens, said private property seized by the city of New London, Connecticut was constitutional under the Fifth Amendment, even though the seized land was to be used for private development as part of a local economic redevelopment program. The Takings Clause of the Fifth Amendment says, nor shall private property be taken for public use, without just compensation.

The issue in Kelo centered on whether it was public use to give private property seized under Imminent Domain laws to a private developer. In other words, does permissible public use include private use. The city of New London argued this was public use because the economic redevelopment program would create jobs, revitalize an economically distressed part of the city, and would result in increased tax revenue for the city. The Supreme Court agreed with the city of New London.

Much of the country was in an uproar because this meant any government (state, local, or federal) with Eminent Domain power could seize private property and give that property to another private party if the stated use was for economic redevelopment and increased local tax revenues. This public uproar was understandable and justified, but the decision in Kelo resulted in a strange situation where the ultimate result of the case was correct, though the Supreme Court conjured up an absurd decision.

The Fifth Amendment, and the rest of the Bill of Rights, does not apply against state and local governments. The Fifth Amendment was erected as a superfluous restraint on federal power. To say the Fifth Amendment applies against state and local governments would mean the Fifth Amendment and the Bill of Rights actually granted power to the federal government and its courts. This would be ludicrous.

An early Supreme Court case involving the Takings Clause was Barron v. Baltimore, 1833. This was one of the few cases Chief Justice John Marshall got right. The decision held the Fifth Amendment does not apply to the state governments and any remedy for the plaintiff would need to be settled under Maryland law. In addition, Justice Marshall acknowledged the federal courts did not have jurisdiction in the case since the taking of property at issue was not a federal matter.

The plaintiff, John Barron, sued the city of Baltimore claiming the value of his wharf property had been so impaired by the citys development/improvement project that it constituted a taking of his property under the Fifth Amendments Takings Clause. John Marshalls decision said the issue presented in the case was, of great importance, but not of much difficulty. Marshalls decision explains the text of the Constitution, the purpose of the Bill of Rights, and the context in which the Constitution and Bill of Rights were ratified. The opinion concludes, [w]e are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. As such, the court can take no jurisdiction of the cause.

The Kelo House, New London, Connecticut

The Supreme Court in Kelo v. City of New London should have reached the same conclusion as the court in Barron v. Baltimore, namely, that the Supreme Court did not have jurisdiction to hear the case because the Fifth Amendment and the Takings Clause do not apply against state and local legislation. The result of the Supreme Courts decision in Kelo was correct because it affirmed the decision of the Connecticut Supreme Court. The Connecticut Supreme Courts decision was dubious, but the Supreme Court does not have legitimate authority to overturn bad state supreme court decisions unless the Supreme Court has jurisdiction. State action under the Fifth Amendment does not fall within federal subject matter jurisdiction and does not involve a federal question.

Why did the Supreme Court assume jurisdiction in Kelo? Because, like other branches of the federal government, the Supreme Court loves power, and because of a judicial doctrine the Supreme Court created in the early twentieth century called the Incorporation Doctrine. For more on the Incorporation Doctrine, click here.

For more on Eminent Domain, generally, click here.

Another reason why the Fifth Amendment matters today would be so-called, Miranda rights.

Miranda rights were created out of thin air by the United States Supreme Court in 1966 with no basis whatsoever in the text, history, plain meaning, or logic of the Constitution.

Miranda rights create an obligation for police officers throughout the United States to warn criminal suspects being interrogated or in custody that they have certain rights prior to interrogation (e.g., right to remain silent, right to an attorney, etc). Generally, statements made to police without suspects first receiving Miranda warnings cannot be used against the suspect in court.

Ernesto Miranda convicted kidnapper, rapist and armed robber.

According to the Supreme Court, so-called Miranda Rights are based on the language from the Fifth Amendment, nor shall any person be compelled in any criminal case to be a witness against himself. The Fifth Amendment had been around for one-hundred and seventy-five years before the Supreme Court discovered these rights.

Whether requiring police officers to Mirandize criminal suspects is good policy or not is a separate matter. What matters is the Supreme Court took the Fifth Amendment a superfluous restraint on federal power, a shield erected by the states against the federal government and turned it into a weapon whereby federal judges could create laws out of thin air and impose their arbitrary personal opinions on all fifty states. Requiring police officers throughout the United States to follow rules made up out of thin air by federal judges is a radical, sweeping and dangerous power grab.

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.

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Fifth Amendment - U.S. Constitution & Bill of Rights