Category Archives: Fifth Amendment

Created on December 15, 1791, the Fifth Amendment to the United States Constitution is the part of the United States Bill of Rights. This amendment establishes a number of legal rights that apply to both civil and criminal proceedings.[1] It contains several clauses: It guarantees the right to a grand jury. It forbids double jeopardy (being tried again for the same crime after an acquittal).[1] It protects a person against self-incrimination (being a witness against himself).[1] This is often called "Pleading the Fifth". The Fifth Amendment requires due process in any case where a citizen may be deprived of "life, liberty, or property".[1] Any time the government takes private property for public use, the owner must be compensated.[1]

The language of the Fifth Amendmend is:

The Fifth Amendment requires the use of grand juries by the federal legal system for all capital and "infamous crimes" (cases involving treason, certain felonies or gross moral turpitude[3]).[4] Grand juries trace their roots back to the Assize of Clarendon, an enactment by Henry II of England in 1166. It called for "the oath of *twelve men from every hundred and four men from every vill" to meet and decide who was guilty of robbery, theft or murder.[5] It was the early ancestor of the jury system and of the grand jury. The United Kingdom abolished grand juries in 1933.[6] Many of their former colonies including Canada, Australia and New Zealand have also stopped using them.[6] The United States is one of the few remaining countries that uses the grand jury.

The Double Jeopardy clause in the Fifth Amendment forbids a defendant from being tried again on the same (or similar) charges in the same case following a legitimate acquittal or conviction. In common law countries, a defendant may enter a peremptory plea of autrefois acquit or autrefois convict (autrefois means "in the past" in French).[7] It means if the defendant has been acquitted or convicted of the same offence and cannot be retried under the principle of double jeopardy.[1] The original intent of the clause is to prevent an individual to go through a number of prosecutions for the same act until the prosecutor gets a conviction.[1]

In a criminal prosecution, under the Fifth Amendment, a person has the right to refuse to incriminate himself (or herself).[1] No person is required to give information that could be used against him. This is also called "taking the Fifth" or more commonly "pleading the Fifth."[8] The intent of this clause is to prevent the government from making a person confess under oath.[a] A person may not refuse to answer any relevant question under oath unless the answer would incriminate him. If the answer to a question on the witness stand could be used to convict that person of a crime, he can assert his Fifth Amendment rights.[8]

The authors of the Fifth Amendment intended the provisions in it apply only to the federal government.[10] Since 1925, under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments. Since the landmark decision Miranda v. Arizona, 384 U.S. 436 (1966), when they arrest someone, police are required to include the "right to remain silent" as part of the legal Miranda warning (the wording may vary).[11]

The Due Process clause guarantees every person a fair, just and orderly legal proceeding. The Fifth Amendment applies to the federal government. The Fourteenth Amendment to the United States Constitution, among other provisions, forbids states from denying anyone their life, their liberty or their property without due process of law[12] So the Fourteenth Amendment expands the Due Process clause of the Fifth Amendment to apply to the states. Due process means the government must follow the law and not violate any parts of it.[13] An example of violating due process is when a judge shows bias against the defendant in a trial.[13] Another example is when the prosecution fails to disclose information to the defense that would show the defendant is not guilty of the crime. [13]

The Takings Clause of the Fifth Amendment states "private property [shall not] be taken for public use, without just compensation."[14] The Fifth Amendment restricts only the federal government. The Fourteenth Amendment extended this clause to include actions taken by State and local governments.[14] Whenever the government wants to buy property for public use, they make an offer to the owner. If the owner does not want to sell the property, the government can take them to court and exercise a power called eminent domain.[14] The name comes from the Latin term dominium eminens (meaning supreme lordship). The court then condemns the property (meaning say it can no longer be occupied by people). This allows the government to take over the property, but must pay "just compensation" to the owner. In other words, the government body must pay what the property is worth.[14]

A case heard before the U.S. Supreme Court, Kelo v. City of New London, 545 U.S. 469 (2005), was decided in favor of allowing the use of eminent domain to transfer land from one private owner to another private owner.[15] The court upheld the city of New London, Connecticut's proposed use of the petitioner's private property qualifies as a "public use" fell within the meaning of the Takings Clause.[15] The city felt the property was in poor condition and the new owner would improve it. This extension of the Takings Clause has been very controversal.[b]

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Fifth Amendment to the United States Constitution - Simple ...

In December 2012 The Fifth Amendment happy hour was founded by myself, Michele Bamberg, and Jeffrey Gitto. The happy hour is a social and professional networkin...g event geared towards the legal community which featured food/drink specials, and weekly guest bartenders we dubbed "lawtenders". The Fifth Amendment happy hour quickly became the place to be on Wednesday evenings, and was a favorite among many lawyers, judges, public defenders, prosecutors, paralegals, court reporters, etc. It also attracted many people outside the legal community as well which was great for meeting new people, and building relationships.

The Fifth Amendment has been a huge success. It was originally ran by the best in the business to include, but not limited to Nique Ryan, Aaron Round, Chelsea Sherman, Sammy Morgan, Rachel Valore, Gabrielle Mendez, Brandon Young, Erica Warner, Kj Pignatelli, Justin Sullivan, Amy Jeanine, and more. In just the first 10 months of its inception, The Fifth Amendment became the foundation for an incredible fundraiser in which we rallied the community and successfully raised over $20K in less than 3 weeks for a young boy suffering from Lyme Disease!

After a much needed break, The Fifth Amendment was on a new scene to start the summer of 2015. This time our goal was to raise $10K for Legal Aid Society of the Orange County Bar Association, Inc. This would be achieved through the hard work of Rob Bamberg, Michele Bamberg, Nique Ryan, and Donna Haynes; ran by Alex Coven, Trisha Sissons, and Jake Friend; with selflessness generosity from the following sponsors/donors: Amir Ladan of Ladan Law; Eric Boughman of Forster Boughman & Lefkowitz; David Bigney of Bigney Law Firm; Ryan Davis of Winderweedle, Haines, Ward & Woodman, P.A.; Amber Neilson Davis of Beusse Wolter Sanks & Maire, PLLC; Mario Ceballos of The Ceballos Law Firm, P.A.; Kirsty Irvin Schouweiler of First Choice Reporting & Video Services, Inc.; Tara Slocum of Legal Realtime Reporting; Kimberly Lorenz of Fisher Rushmer, P.A. Family Law; Rob Bamberg of ProServe USA; Michele Bamberg of Lady Esquire, Men's Stylist; and last but certainly not least, tonight's sponsors William Umansky & Zahra Iravani Umansky of The Umansky Law Firm.

This goes to show there's power in numbers because people working together are greater than they can ever be working apart. And every single person listed past and present, is a huge reason The Fifth Amendment has been a success! On behalf of Jeffrey Gitto, Nique Ryan, Michele Bamberg, and myself, we hope to see you tonight at Side Bar 6 pm - 10 pm, and we thank you for your support!

God Bless America!

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The Fifth Amendment - facebook.com

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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.

Fifth Amendment to the US Constitution

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The right to remain silent is a fundamental principle of liberty. It gives American citizens better privacy. The burden falls on the accuser to build a case against a person. If the accuser does not meet that burden, the accused is free to go. The accused never, ever, is required to furnish any evidence or testimony against himself. In other words, liberty requires that you have the right to remain silent.

If the accused were forced to produce evidence that they did not commit an act, innocent people would be forced to prove a negative. Proving a negative is usually far more difficult, if not impossible to do. Anyone without an alibi would be convicted. No one could afford to spend even one minute alone in that kind of world. The right to remain silent preserves a functioning system of justice and a functioning society.

The fifth amendment to the United States Constitution does not say explicitly that you have the right to remain silent. It does say that you do not have to be a witness against yourself. This means that you cannot be compelled to reveal information that might implicate you in a crime.

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Law abiding citizens are particularly at risk because they think that the truth will set them free. They feel compelled that if they just tell their story they will be exonerated. This is not true. Numerous opportunities abound for an innocent individual to become entrapped by speaking with police.

Innocent people often overstate or understate some fact while vigorously defending their innocence. This makes their testimony technically untrue, or at least a prosecutor can make it look like its untrue. Once attention is called to the misstatement, the rest of the testimony is suspect because of the one untruth. This suspicion may be sufficient to land the innocent person in jail.

Police officers may make an innocent mistake and not remember correctly what you said. If you claim you told the cop one thing, and he claims you said another, the police officer will be believed over an accused any day. If you had said nothing, the cop would have to flat out lie that you said something. That is not likely to happen.

There may be a witness that will mistakenly identify you as the suspect in a crime. If you claim one thing that is absolutely true, there may be a solid witness that is honestly mistaken about seeing you. If your testimony contradicts theirs, the witness will be believed instead of the accused. If you dont say anything, there will be nothing to contradict and the honesty of the accused will not be in play.

The federal criminal code contains over 10,000 crimes. State laws add even more crimes to the list. Not even the government knows them all. Many of these crimes are for seemingly innocent behavior, such as buying 2 packages of cold medicine, or possessing a flower that any other country in the world has outlawed. Thus, telling your true story about your seemingly completely innocent behavior could, in and of itself, implicate you in a crime, you should never, ever, ever, ever, ever, ever speak to government agents, ever.

Criminals know that talking may incriminate them and so are much more aware of their right to silence and are much more inclined to use it. Innocent people like you arent aware of these dangers. And, if someone is truly innocent, they need to know this right and know how to use it far more than criminals do.

Under no circumstances should you ever talk to a police officer, fire fighter, ticket enforcer or street sweeper. All of them are government agents and can be a witness to use anything you say to them against you in a court of law.

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The Supreme Court recently ruled that to invoke your right to silence, you have to break your silence and speak. They might need the fifth amendment explained to them again, but that is what they said. A simple phrase such as I am invoking my right to remain silent should suffice.

There is a free and handy insert for your passport that will show you exactly what you need to do to invoke your right to remain silent. It is designed to help you right when you need it. You will have it with you as you go through Customs upon re-entering the US. Customs officers may need to have the fifth amendment explained to them too, so there are several cases which clearly show your right to remain silent in that situation. Remaining silent can give you better privacy when re-entering the country.

Customs will still have the right to do a thorough search of you and your belongings whether you invoke your right to remain silent or not. Threatening a search, or actually subjecting you to search for invoking your rights is within their power.

To avoid being targeted for a search, it helps if you are not the only one invoking your rights. If lots of others are invoking their right to remain silent on a regular basis, no single individual will stand out any more than normal.

To decrease the likelihood of a search and promote even better privacy, share the free guide with everyone that you know. You have permission to post it anywhere, share it with anyone, make copies, print, and distribute it for free in any legal way as long as nothing is changed. The more people that exercise their rights, the better privacy for everybody.

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So go ahead and download and distribute this free guide and enjoy.

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You Have The Right To Remain Silent: Fifth Amendment Explained

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."[34] 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 or herself.... "[35] 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."[36]

Historically, the legal protection against compelled self-incrimination was directly related to the question of torture for extracting information and confessions.[37][38]

The legal shift away from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th century in England.[39] Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was considered guilty.[39] Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly used to compel "cooperation." Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with 13 demands, third of which was the right against self-incrimination in criminal cases. These protections were brought to America by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights.

Protection against compelled self-incrimination is implicit in the Miranda rights statement, which protects the "right to remain silent." This amendment is also similar to Section 13 of the Canadian Charter of Rights and Freedoms. In other Commonwealth of Nations countries like Australia and New Zealand, the right to silence of the accused both during questioning and at trial is regarded as an important right inherited from common law, and is protected in the New Zealand Bill of Rights Act and in Australia through various federal and state acts and codes governing the criminal justice system.

In South African law the right to silence originating from English common law has been entrenched in Section 35 of the Constitution of the Republic of South Africa, 1996.

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."[40]

The Fifth Amendment privilege against compulsory self-incrimination applies when an individual is called to testify in a legal proceeding.[41] 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,[42] and whether the proceeding itself is criminal or civil.[43]

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 accused 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-Wisc.) asked, "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," to 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 the show business. Pleading the Fifth in response to such questions was held inapplicable, since being a Communist itself was not a crime.

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

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 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. See United States v. Solomon,[44]D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc.,[45] and Marchiano v. NASD.[46] 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 his or her 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, who may then use the statements in a prosecution of the individual.

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,[47] 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 to which Chief Justice Earl Warren referred 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".[48] In her concurring opinion Justice O'Connor wrote that a suspect's age may indeed "be relevant to the 'custody' inquiry";[49] 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".[48]

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, the Supreme Court ruled 54 on June 21, 2004, that the Fourth, Fifth, and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police where a state's stop and identify statutes obligate disclosure of such information.

In June 2010, the Supreme Court ruled in Berghuis v. Thompkins that a criminal suspect must now unambiguously invoke the right to remain silent. Unless and until the suspect actually states that he or she is relying on that right, his or her subsequent voluntary statement can be used in court and police can continue to interact with (or question) him or her. The mere act of remaining silent is, on its own, insufficient to imply the suspect has invoked those rights. Furthermore, a voluntary reply, even after lengthy silence, can be construed as implying a waiver.

Under the Act of Production Doctrine, the act of an individual in producing documents or materials (e.g., in response to a subpoena) may have a "testimonial aspect" for purposes of the individual's right to assert the Fifth Amendment privilege against self-incrimination to the extent that the individual's act of production provides information not already in the hands of law enforcement personnel about the (1) existence; (2) custody; or (3) authenticity, of the documents or materials produced. See United States v. Hubbell.

In Griffin v. California (1965), the Supreme Court ruled that a prosecutor may not ask the jury to draw an inference of guilt from a defendant's refusal to testify in his own defense. The Court overturned as unconstitutional under the federal constitution a provision of the California state constitution that explicitly granted such power to prosecutors.[50]

While defendants are entitled to assert the privilege against compelled self-incrimination in a civil court case, there are consequences to the assertion of the privilege in such an action.

The Supreme Court has held that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." Baxter v. Palmigiano,[51] "[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, 'Silence is often evidence of the most persuasive character.'"[52] "'Failure to contest an assertion... is considered evidence of acquiescence... if it would have been natural under the circumstances to object to the assertion in question.'"[53]

In Baxter, the state was entitled to an adverse inference against Palmigiano because of the evidence against him and his assertion of the Fifth Amendment privilege.

Some civil cases are considered "criminal cases" for the purposes of the Fifth Amendment. In Boyd v. United States, the U.S. Supreme Court stated that "A proceeding to forfeit a person's goods for an offence against the laws, though civil in form, and whether in rem or in personam, is a "criminal case" within the meaning of that part of the Fifth Amendment which declares that no person "shall be compelled, in any criminal case, to be a witness against himself."[54]

In some cases, individuals may be legally required to file reports that call for information that may be used against them in criminal cases. In United States v. Sullivan,[55] the United States Supreme Court ruled that a taxpayer could not invoke the Fifth Amendment's protections as the basis for refusing to file a required federal income tax return. The Court stated: "If the form of return provided called for answers that the defendant was privileged from making[,] he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld."[56]

In Garner v. United States,[57] the defendant was convicted of crimes involving a conspiracy to "fix" sporting contests and to transmit illegal bets. During the trial the prosecutor introduced, as evidence, the taxpayer's federal income tax returns for various years. In one return the taxpayer had showed his occupation to be "professional gambler." In various returns the taxpayer had reported income from "gambling" or "wagering." The prosecution used this to help contradict the taxpayer's argument that his involvement was innocent. The taxpayer tried unsuccessfully to keep the prosecutor from introducing the tax returns as evidence, arguing that since the taxpayer was legally required to report the illegal income on the returns, he was being compelled to be a witness against himself. The Supreme Court agreed that he was legally required to report the illegal income on the returns, but ruled that the privilege against self-incrimination still did not apply. The Court stated that "if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not 'compelled' him to incriminate himself."[58]

Sullivan and Garner are viewed as standing, in tandem, for the proposition that on a required federal income tax return a taxpayer would probably have to report the amount of the illegal income, but might validly claim the privilege by labeling the item "Fifth Amendment" (instead of "illegal gambling income," "illegal drug sales," etc.)[59] The United States Court of Appeals for the Eleventh Circuit has stated: "Although the source of income might be privileged, the amount must be reported."[60] The U.S. Court of Appeals for the Fifth Circuit has stated: ".... the amount of a taxpayer's income is not privileged even though the source of income may be, and Fifth Amendment rights can be exercised in compliance with the tax laws "by simply listing his alleged ill-gotten gains in the space provided for 'miscellaneous' income on his tax form."[61] In another case, the Court of Appeals for the Fifth Circuit stated: "While the source of some of [the defendant] Johnson's income may have been privileged, assuming that the jury believed his uncorroborated testimony that he had illegal dealings in gold in 1970 and 1971, the amount of his income was not privileged and he was required to pay taxes on it."[62] In 1979, the U.S. Court of Appeals for the Tenth Circuit stated: "A careful reading of Sullivan and Garner, therefore, is that the self-incrimination privilege can be employed to protect the taxpayer from revealing the information as to an illegal source of income, but does not protect him from disclosing the amount of his income."[63]

If the government gives an individual immunity, then that individual may be compelled to testify. Immunity may be "transactional immunity" or "use immunity"; in the former, the witness is immune from prosecution for offenses related to the testimony; in the latter, the witness may be prosecuted, but his testimony may not be used against him. In Kastigar v. United States,[64] the Supreme Court held that the government need only grant use immunity to compel testimony. The use immunity, however, must extend not only to the testimony made by the witness, but also to all evidence derived therefrom. This scenario most commonly arises in cases related to organized crime.

A statutorily required record-keeping system may go too far such that it implicates a record-keeper's right against self-incrimination. A three part test laid out by Albertson v. Subversive Activities Control Board,[65] is used to determine this: 1. the law targets a highly selective group inherently suspect of criminal activities; 2. the activities sought to be regulated are already permeated with criminal statutes as opposed to essentially being non-criminal and largely regulatory; and 3. the disclosure compelled creates a likelihood of prosecution and is used against the record-keeper. In this case, the Supreme Court struck down an order by the Subversive Activities Control Board requiring members of the Communist Party to register with the government and upheld an assertion of the privilege against self-incrimination, on the grounds that statute under which the order had been issued was "directed at a highly selective group inherently suspect of criminal activities."

In Leary v. United States,[66] the court struck down the Marijuana Tax Act because its record keeping statute required self-incrimination.

In Haynes v. United States,[67] the Supreme Court ruled that, because convicted felons are prohibited from owning firearms, requiring felons to register any firearms they owned constituted a form of self-incrimination and was therefore unconstitutional.

Courts have given conflicting decisions on whether forced disclosure of computer passwords is a violation of the Fifth Amendment.

In In re Boucher (2009), the US District Court of Vermont ruled that the Fifth Amendment might protect a defendant from having to reveal an encryption password, or even the existence of one, if the production of that password could be deemed a self-incriminating "act" under the Fifth Amendment. In Boucher, production of the unencrypted drive was deemed not to be a self-incriminating act, as the government already had sufficient evidence to tie the encrypted data to the defendant.[68]

In January 2012 a federal judge in Denver ruled that a bank-fraud suspect was required to give an unencrypted copy of a laptop hard drive to prosecutors.[69][70] However, in February 2012 the Eleventh Circuit ruled otherwise - finding that requiring a defendant to produce an encrypted drive's password would violate the Constitution, becoming the first federal circuit court to rule on the issue.[71][72] In April 2013, a District Court magistrate judge in Wisconsin refused to compel a suspect to provide the encryption password to his hard drive after FBI agents had unsuccessfully spent months trying to decrypt the data.[73][74]

Corporations may also be compelled to maintain and turn over records; the Supreme Court has held that the Fifth Amendment protections against self-incrimination extend only to "natural persons."[75] The Court has also held that a corporation's custodian of records can be forced to produce corporate documents even if the act of production would incriminate him personally.[76] The only limitation on this rule is that the jury cannot be told that the custodian personally produced those documents in any subsequent prosecution of him or her, but the jury is still allowed to draw adverse inferences from the content of the documents combined with the position of the custodian in the corporation.

As a condition of employment, workers may be required to answer their employer's narrowly defined questions regarding conduct on the job. If an employee invokes the Garrity rule (sometimes called the Garrity Warning or Garrity Rights) before answering the questions, then the answers cannot be used in criminal prosecution of the employee.[77] This principle was developed in Garrity v. New Jersey, 385 U.S. 493 (1967). The rule is most commonly applied to public employees such as police officers.

In Boyd v. United States,[78] the U.S. Supreme Court stated that "It is equivalent to a compulsory production of papers to make the nonproduction of them a confession of the allegations which it is pretended they will prove".

On June 1, 2010, the Supreme Court ruled in Berghuis v. Thompkins that the right was non-self-executing and a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.[79] The case centered around the interrogation of murder suspect Van Chester Thompkins, who remained virtually silent for hours, before giving a few brief responses to police questions. Most significantly, Thompkins answered "yes" when asked, "Do you pray to God to forgive you for shooting that boy down?" The statement was introduced at trial and Thompkins was convicted. In a 5-4 ruling, the Court held that criminal suspects who do not clearly state their intention to remain silent are presumed to have waived their Fifth Amendment rights. Ironically, suspects must speak in order for their silence to be legally protected. The new rule will defer to police in cases where the suspect fails to unambiguously assert the right to remain silent.

The Supreme Court extended the standard from Berghuis v. Thompkins in Salinas v. Texas in 2013, holding that a suspect's silence in response to a specific question posed during an interview with police when the suspect was not in custody and the suspect had been voluntarily answering other questions during that interview could be used against him in court where he did not explicitly invoke his Fifth Amendment right to silence in response to the specific question.[80] Of the five justices who concluded that the suspect's silence could be used against him in these circumstances, Justices Alito, Roberts and Kennedy concluded that the defendant's Fifth Amendment claim failed because he did not expressly invoke the privilege. The other two Justices, Thomas and Scalia, concluded that the defendant's claim would fail even if he had invoked the privilege, on the theory that the prosecutor's comment at the trialregarding the defendant's silence in response to a question during the police interviewdid not compel the defendant to give self-incriminating testimony.[81] The Court stated that there was no "ritualistic formula" necessary to assert this privilege, but that a person could not do so "by simply standing mute." If an individual fails to invoke his right, and is later charged with a crime, the prosecution may use his silence at trial as evidence of his guilt.[82]

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Fifth Amendment to the United States Constitution - Wikipedia ...

The Fifth Amendment of the U.S. Constitution provides, "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."

The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Process Clause from the Magna Carta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: grand juries for capital crimes, a prohibition on double jeopardy, a prohibition against required self-incrimination, a guarantee that all criminal defendants will have a fair trial, and a promise that the government will not seize private property without paying market value. While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has interpreted the Fifth Amendment's provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment.

Grand juries are a holdover from hundreds of years ago, originating during Britain's early history. Deeply-rooted in the Anglo-American tradition, the grand jury originally served to protect the accused from overly-zealous prosecutions by the English monarchy.

Congressional statutes outline the means by which a grand jury shall be impaneled. Ordinarily, the grand jurors are selected from the pool of prospective jurors who potentially could serve on a given day in any juror capacity. At common-law, a grand jury consists of between 12 and 23 members. Because the Grand jury was derived from the common-law, courts use the common-law as a means of interpreting the Grand Jury Clause. While state legislatures may set the statutory number of grand jurors anywhere within the common-law requirement of 12 to 23, statutes setting the number outside of this range violate the Fifth Amendment. Federal law has set the federal grand jury number as falling between 16 and 23.

A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct "fishing expeditions" or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may make a presentment. During a presentment the grand jury informs the court that they have a reasonable suspicion that the suspect committed a crime.

The Double Jeopardy Clause aims to protect against the harassment of an individual through successive prosecutions of the same alleged act, to ensure the significance of an acquittal, and to prevent the state from putting the defendant through the emotional, psychological, physical, and financial troubles that would accompany multiple trials for the same alleged offense. Courts have interpreted the Double Jeopardy Clause as accomplishing these goals by providing the following three distinct rights: a guarantee that a defendant will not face a second prosecution after an acquittal, a guarantee that a defendant will not face a second prosecution after a conviction, and a guarantee that a defendant will not receive multiple punishments for the same offense. Courts, however, have not interpreted the Double Jeopardy Clause as either prohibiting the state from seeking review of a sentence or restricting a sentence's length on rehearing after a defendant's successful appeal.

Jeopardy refers to the danger of conviction. Thus, jeopardy does not attach unless a risk of the determination of guilt exists. If some event or circumstance prompts the trial court to declare a mistrial, jeopardy has not attached if the mistrial only results in minimal delay and the government does not receive added opportunity to strengthen its case.

The Fifth Amendment protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may "plead the Fifth" and not answer if the witness believes answering the question may be self-incriminatory.

In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. 384 U.S. 436 (1966). Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights. Known as Miranda rights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violative of the Fifth Amendment's protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of the Miranda rights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement.

After Congress passed the Crime Control and Safe Streets Act, some felt that the statute by implication overruled the requirements of Miranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt that Miranda represented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. In Dickerson v. United States the U.S. Supreme Court rejected this arguments and held that the Warren Court had directly derived Miranda from the Fifth Amendment.

The guarantee of due process for all citizens requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive a person of life, liberty, or property. Due process essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding. While the Fifth Amendment only applies to the federal government, the identical text in the Fourteenth Amendment explicitly applies this due process requirement to the states as well.

Courts have come to recognize that two aspects of due process exist: procedural due process and substantive due process. Procedural due process aims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensures that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the 20th century as protecting those right so fundamental as to be "implicit in the concept of ordered liberty."

While the federal government has a constitutional right to "take" private property for public use, the Fifth Amendment's Just Compensation Clause requires the government to pay just compensation, interpreted as market value, to the owner of the property. The U.S. Supreme Court has defined fair market value as the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property's good and bad attributes, would pay. The government does not have to pay a property owner's attorney's fees, however, unless a statute so provides.

In Kelo v. City of New London, the U.S. Supreme Court rendered a controversial opinion in which they held that a city could constitutionally seize private property for private commercial development. 545 U.S. 469 (2005).

See constitutional amendment.

See constitutional clauses.

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Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII ...

A Guide to the Fifth Amendment

The Fifth Amendment, or Amendment V of the United States Constitution is the section of the Bill of Rights that protects you from being held for committing a crime unless you have been indicted correctly by the police. The Fifth Amendment is also where the guarantee of due process comes from, meaning that the state and the country have to respect your legal rights. The Fifth Amendment was introduced as a part of the Bill of Rights into the United States Constitution on September 5, 1789 and was voted for by of the states on December 15, 1791.

History of the Fifth Amendment

Once the United States won their independence from the British Parliament and monarchy that had acted like tyrants, the Framers of the United States Constitution did not trust large, centralized governments. Because of this, the Framers wrote the Bill of Rights, which were the first 10 amendments, to help protect individual freedoms from being hurt by the governmental. They included the Fifth Amendment, which gave five specific freedoms to American citizens.

Understanding the Fifth Amendment Line by Line

If you are confused by what each line means, here are some explanations to make the Fifth Amendment easier to understand:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury: No one can be put on trial for a serious crime, unless a grand jury decide first that there is enough proof or evidence so that the trial is needed. If there is enough evidence, an indictment is then issued, which means that the person who is charged with the crime will can put on trial for the crime.

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: People in the military can go to trial without a grand jury first deciding that it is necessary. This is the case if the military person commits a crime during a national emergency or a war.

Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb: If someone is put on trial for a certain crime and the trial ends, the person cannot be tried once more for the same crime. If a person is convicted of a crime and then serves his or her time in jail, or if the person is acquitted, he or she cannot be put on trial a second time.

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Fifth Amendment - Kids | Laws.com

The Fifth Amendment states that people have the right to have a trial if they are accused of a committing crime. The creators of the Bill Of Rights probably thought that people falsely accused should have their rights like anyone else. It also says that if their private property is taken for public use, the owners would get something in return.

The exact words in this amendment say, 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.

This amendment was made in the 18th century, some time in 1791, to protect the privileges of the citizens over the cruel government. It was important then and still is now because it gives people the right to be tried by a jury for committed crimes, the choice to be tried twice for doing the same felony, and the opportunity to gain something from their loss of their private property due to being used for public use. For example: if part of your yard was to be demolished in order to build a new road on your street, you would have the right to receive something/compensation in return from the government because they took your private property for public use.

There is a term called pleading the fifth. When you plead the fifth, you are using your Fifth Amendment right to not incriminate yourself with testimony. The Fifth Amendment says you have the right to not testify and incriminate yourself. It means you don't want to say anything that might make you look bad or sound guilty....

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The Fifth Amendment - Term Papers - Nana2327

Amendment Text | Annotations

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.

Presidential Succession

The Twenty-fifth Amendment was an effort to resolve some of the continuing issues revolving about the office of the President; that is, what happens upon the death, removal, or resignation of the President and what is the course to follow if for some reason the President becomes disabled to such a degree that he cannot fulfill his responsibilities? The practice had been well established that the Vice President became President upon the death of the President, as had happened eight times in our history. Presumably, the Vice President would become President upon the removal of the President from office. Whether the Vice President would become acting President when the President became unable to carry on and whether the President could resume his office upon his recovering his ability were two questions that had divided scholars and experts. Also, seven Vice Presidents had died in office and one had resigned, so that for some twenty per cent of United States history there had been no Vice President to step up. But the seemingly most insoluble problem was that of presidential inability--Garfield lying in a coma for eighty days before succumbing to the effects of an assassin's bullet, Wilson an invalid for the last eighteen months of his term, the result of a stroke--with its unanswered questions: who was to determine the existence of an inability, how was the matter to be handled if the President sought to continue, in what manner should the Vice President act, would he be acting President or President, what was to happen if the President recovered. Congress finally proposed this Amendment to the States in the aftermath of President Kennedy's assassination, with the Vice Presidency vacant and a President who had previously had a heart attack.

This Amendment saw multiple use during the 1970s and resulted for the first time in our history in the accession to the Presidency and Vice-Presidency of two men who had not faced the voters in a national election. First, Vice President Spiro Agnew resigned on October 10, 1973, and President Nixon nominated Gerald R. Ford of Michigan to succeed him, following the procedures of Sec. 2 of the Amendment for the first time. Hearings were held upon the nomination by the Senate Rules Committee and the House Judiciary Committee, both Houses thereafter confirmed the nomination, and the new Vice President took the oath of office December 6, 1973. Second, President Richard M. Nixon resigned his office August 9, 1974, and Vice President Ford immediately succeeded to the office and took the presidential oath of office at noon of the same day. Third, again following Sec. 2 of the Amendment, President Ford nominated Nelson A. Rockefeller of New York to be Vice President; on August 20, 1974, hearings were held in both Houses, confirmation voted and Mr. Rockefeller took the oath of office December 19, 1974. 1

Footnotes

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Twenty-Fifth Amendment - U.S. Constitution - FindLaw

The Fifth Amendment dates back to the 17th century, in England. They used it to protect their citizens. It was designed to protect us just like it protected the people in England. It protects us against government authority in a legal procedure. Amendment 5 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 offense to be twice put in jeopardy of life or limb; nor shall be completed 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.

Question #1 What specific constituencies supported the provisions of this amendment at the time of the Constitutional Convention? Who were they and why did they support it? The Federalists (James Madison) introduced and supported the provisions of the 5th amendment. Madison included a constitutional provision that an individual shall not be compelled to be a witness against himself. Congress added the words in any criminal case, meaning that the provision, which will become one of the Fifth Amendments clauses providing safeguards against abuse of criminal laws. Because the idea that double jeopardy was wrong was so widely upheld by the colonists, James Madison also presented the Double Jeopardy Clause to Congress.

Question #2 Were there any groups or persons that were against the inclusion of this amendment (or any part of it)? Who were they and why did they not support it? There were not any groups or persons that were against the inclusion of the 5th Amendment at the time of the Constitutional Convention. Question #3 Were there any changes or modifications proposed that were not included in the...

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Fifth Amendment - College Essay - Cmikell - StudyMode

Introduction The Takings Clause of the Fifth Amendment is one of the few provisions of the Bill of Rights that has been given a broader interpretation under the Burger and Rehnquist courts than under the Warren Court. It is a clause near and dear to the heart of free market conservatives.

Only certain types of takings cases present serious interpretive questions. It is clear that when the government physically seizes property (as for a highway or a park, for example) that it will have to pay just compensation. It is also clear that serious, sustained physical invasions of property (as in the case of low overflying aircraft, for example) require payment of compensation equal to the difference between the market value before and after the invasion. The difficult cases are generally those where government regulations, enacted to secure some sort of public benefit, fall disproportionately on some property owners and cause significant dimunition of property value.

The Court has had a difficult time articulating a test to determine when a regulation becomes a taking. It has said there is "no set formula" and that courts "must look to the particular circumstances of the case." The Court has identified some relevant factors to consider: the economic impact of the regulation, the degree to which the regulation interferes with investor-backed expectations, and the character of the government action. Still, as our cases suggest, there is a lot of room for argument as to how these various factors should be weighed.

Cases

Penn Central v. New York City (1978) Dolan v. City of Tigard (1994) Lucas v. South Carolina Coastal Com'n. (1992) Tahoe Preservation Council v Tahoe Regional Planning Agency (2002) Kelo v City of New London (2005)

David Lucas on his South Carolina property that the Supreme Court concluded was "taken."

Supreme Court Determines What is "a Public Use"

In June 2005, the Supreme Court decided an important case involving the meaning of "public use" in the Fifth Amendment. In Kelo v City of New London, the Court, voting 5 to 4, upheld a city plan to condemn homes in a 90-acre blue-collar residential neighborhood. New London plans to give the land to a developer for $1, with a 99-year lease, to build a waterfront hotel, office space, and higher-end housing. Justice Stevens, writing for the Court, found this donation of property to a developer to be a "public use." Stevens said that the Court's jurisprudence gave government "broad latitude" to determine what uses might be "public." In a concurring opinion, Justice Kennedy indicated that the Court still stood willing to review on constitutional grounds takings that are arguably simply the city favoring one private owner over another, rather than takings based on a good faith analysis of the public interest. Angry property rights advocates reacted to the decision by suggesting that local governments consider condemning the homes of justices in the majority and turning them over to private developers for construction of B & Bs.

Questions

After the State of Florida spent millions widening beaches to protect against shoreline erosion, a group of oceanfront owners in Destin sued, arguing that the new 75-foot strip of sand should be theirs, and not the government. The landowners argued that the Florida courts had redefined their land boundaries, which used to extend all the way to the tide line, in such a way as to constitute a taking of their property. The Court, 8 to 0 (Justice Stevens not participating because he owned a Florida oceanfront condo), held that the state's actions were not a taking requiring compensation to the owners, noting that the beach erosion project could be seen as an attempt to preserve property values. The Court split 4 to 4 on the question of whether courts could ever be financially liable for a taking. (Stop the Beach Renourishment vs Florida Dep't of Environmental Protection (2010).)

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The Fifth Amendment and Takings of Private Property