Category Archives: Fifth Amendment

The Fifth Amendment to the U.S. Constitution grants citizens (1) the right to be indicted by an impartial grand jury before being tried for a federal criminal offense; (2) the right not to have multiple prosecutions or multiple punishments for a single criminal offense; (3) the right to have individual freedoms protected by due process of law; (4) the right to be free from government compelled self-incrimination; and (5) the right to receive just compensation when the government takes private property for public use.

It states: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence [sic] 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."

It is part of the Bill of Rights that the courts have applied to states through the Fourteenth Amendment. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment. Grand juries and the phrase "due process" both trace their origin to the Magna Carta from 1215. To "plead the Fifth" is a refusal to answer a question because the response could form self-incriminating evidence.

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Fifth Amendment Law & Legal Definition

In a historic victory for gay rights, the Supreme Court ruled on Wednesday morning in United States v. Windsor that the 1996 Defense of Marriage Act is unconstitutional in a 5-4 decision split along partisan lines.

The majority opinion, written by Justice Anthony Kennedy, found that DOMA is a violation of the "equal protection" clause of the Fifth Amendment to the Constitution.

"[It's] no surprise to me that it was struck down," House Minority Leader Nancy Pelosi (D-Calif.)saidjust minutes after the ruling was announced.

"This admission by the court that this bill was unconstitutional was a very important decision for our country, for not only what it means in the lives of people, but also it sends a message of not to be frivolous with the issue of discrimination in our country, and that's what this is about: discrimination," she said.

The Defense of Marriage Act, a 1996 law signed by President Bill Clinton, defined marriage for legal purposes as the union between a man and a woman as husband and wife.

Section 3 of the act barred federal benefits for same-sex couples even in states where same-sex marriage is legal.

The plaintiff in the monumental Supreme Court challenge against DOMA, Edith Windsor, faced the brunt of this discriminatory act. 83-year-old Windsor, who was widowed when her wife Thea Spyer died in 2009, was forced to pay more than $363,000 in federal estate taxes on her partner's estate. She argued that she would have paid no federal state taxes had federal law deemed her marriage the same status as a heterosexual marriage and decided to sue the governmentafter the Internal Revenue Service denied her refund request for the $363,000 in federal estate taxes she paid.

Windsor's experience, however, was not an isolated case.

According to theHuman Rights Campaign,"DOMA singles out lawfully married same-sex couples for unequal treatment under federal law, allowing states torefuse recognitionof valid civil marriages and denying same-sex couples more than 1,100 federal benefits and protections."

The DOMA opinion, written by Justice Anthony Kennedy, declared that the 1996 law violated the Fifth Amendment's equal-protection provision.

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Fifth Amendment: How It Was Crucial in Getting Rid Of DOMA

Grand jury investigations

Before a person can go to trial when accused of a capital crime a grand jury must be presented with an indictment from the prosecuting attorney. The grand jury then decides whether or not there is sufficient evidence to go ahead with a trial or to drop the charges. The grand jury does not decide guilt or innocence, just whether or not there should be a trial. If they decide there is enough evidence to go to trial they return a "true bill of indictment." This is a key Fifth Amendment right.

Double jeopardy

This is a key Fifth Amendment right that protects individuals accused of committing a crime from being tried for the same crime more than once. Hence, once a defendant is found innocent in court they can never be tried for that crime again. However, if the jury gives back a "hung jury" decision the individual is not considered to have been in jeopardy and they probably will get a new trial. They may be tried in multiple courts such as federal, state, and local if they broke different laws according to those individual jurisdictions.

Freedom from self-incrimination - "pleading the fifth"

Many people are familiar with the phrase, "pleading the fifth." This phrase describes one of the key rights given by the Fifth Amendment. It means that individuals do not have to answer questions in court, to the police, and in many circumstances. They have the right to refuse to answer questions because they might incriminate themselves, whether they are on trial or if they are merely a witness. To incriminate yourself means to say something that might lead to your arrest, conviction, or determination of guilt for a crime that you committed. But, individuals can not refuse to answer embarrassing questions or to withhold evidence that might incriminate someone else.

The Fifth Amendment is included in the reading of your rights or your Miranda rights. When the police begin, "you have the right to remain silent," they are referring to your Fifth Amendment rights.

Immunity may be granted to compel witnesses to speak. Immunity grants individuals a guarantee that their testimony will not be used to prosecute them for any crimes they may have committed. Immunity is a way to protect from the overuse of the Fifth Amendment.

Physical evidence

The Fifth Amendment also extends to the protection of some physical evidence or searches. For example, the police can not rush you to the hospital to pump your stomach in search of evidence such as drugs. It does allows other evidence such as fingerprints, handwriting samples, blood, urine, breath tests to show drugs or alcohol, voice analysis, photographs, or police lineups.

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Fifth Amendment - How It's Used

noun 1.

an amendment to the U.S. Constitution, ratified in 1791 as part of the Bill of Rights, providing chiefly that no person be required to testify against himself or herself in a criminal case and that no person be subjected to a second trial for an offense for which he or she has been duly tried previously.

British Dictionary definitions for Fifth Amendment Expand

an amendment to the US Constitution stating that no person may be compelled to testify against himself and that no person may be tried for a second time on a charge for which he has already been acquitted

(US) take the fifth, take the fifth amendment, to refuse to answer a question on the grounds that it might incriminate oneself

Fifth Amendment in Culture Expand

One of the ten amendments to the United States Constitution that make up the Bill of Rights. The Fifth Amendment imposes restrictions on the government's prosecution of persons accused of crimes. It prohibits self-incrimination and double jeopardy and mandates due process of law.

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Fifth amendment | Define Fifth amendment at Dictionary.com

Fifth Amendment,amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

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Fifth Amendment | United States Constitution | Britannica.com

The Eighty-fifth Amendment of the Constitution of India, officially known as The Constitution (Eighty-fifth Amendment) Act, 2001, enables the State to make any provision for reservation in favour of the Scheduled Castes and the Scheduled Tribes, giving them the benefit of consequential seniority in matters of promotion to any class of classes of posts in the services under the State, if they are not adequately represented.

BE it enacted by Parliament in the Fifty-second Year of the Republic of India as follows:-

1. Short title (1) This Act may be called the Constitution (Eighty-fifth Amendment) Act, 2001.

2. Amendment of article 16 In article 16 of the Constitution, in clause (4A), for the words "in matters of promotion to any class", the words "in matters of promotion, with consequential seniority, to any class" shall be substituted.[1]

Article 16 of the Constitution provides for equality of opportunity in matters of public employment. The 85th Amendment amended clause (4A) of the article replacing the words "in matters of promotion to any class" with the words "in matters of promotion, with consequential seniority, to any class" in order to enable the State to make any provision for reservation in favour of the Scheduled Castes and the Scheduled Tribes, giving them the benefit of consequential seniority in matters of promotion to any class of classes of posts in the services under the State, if they are not adequately represented.[2]

The Bill of The Constitution (Eighty-fifth Amendment) Act, 2001 was introduced in the Lok Sabha on 26 November 2001, as the Constitution (Ninety-second Amendment) Bill, 2001 (Bill No. 105 of 2001). It was introduced by Vasundhara Raje, then Minister of State in the Ministry of Personnel, Public Grievances and Pensions. The Bill sought to amend article 16 of the Constitution.[2] The full text of the Statement of Objects and Reasons appended to the bill is given below:

The Government servants belonging to the Scheduled Castes and the Scheduled Tribes had been enjoying the benefit of consequential seniority on their promotion on the basis of rule of reservation. The judgments of the Supreme Court in the case of Virpal Singh Chauhan (1995) 6 SCC 684 andAjit Singh No. I AIR 1996 SC 1189, which led to the issue of the O.M. dated 30th January, 1997, have adversely affected the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes category in the matter of seniority on promotion to the next higher grade. This has led to considerable anxiety and representations have also been received from various quarters including Members of Parliament to protect the interest of the Government servants belonging to Scheduled Castes and Scheduled Tribes.

2. The Government has reviewed the position in the light of views received from various quarters and in order to protect the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes, it has been decided to negate the effect of O,M. dated 30th January, 1997 immediately. Mere withdrawal of the O.M dated 30th January, 1997 will not meet the desired purpose and review or revision of seniority of the Government servants and grant of consequential benefits to such Government servants will also be necessary. This will require amendment to article 16(4A) of the Constitution to provide for consequential seniority in the case of promotion by virtue of rule of reservation. It is also necessary to give retrospective effect to the proposed constitutional amendment to article 16(4A) with effect from the date of coming into force of article 16(4A) itself, that is, from the 17th day of June, 1995.

3. The Bill seeks to achieve the aforesaid objects.

The Bill was considered by the Lok Sabha on 28 November 2001, and passed on the same day with a formal amendment changing the short title from Ninety-second to Eighty-fifth. The Bill, as passed by the Lok Sabha, was considered and passed by the Rajya Sabha on 5 December 2001. The Bill, as passed by the Rajya Sabha, was considered and passed by the Lok Sabha on 22 August 2000. The Bill received assent from then President K. R. Narayanan on 4 January 2002, and was notified in The Gazette of India on the same date. It retroactively came into effect from 17 June 1995, as stated in clause (2) of Section 1 of the Amendment Act.[2]

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Eighty-fifth Amendment of the Constitution of India ...

CLEVELAND - Five Cleveland police supervisors pleaded the Fifth during CPD patrol officer Michael Brelo's trial Monday.

The supervisors each face two counts of dereliction of duty related to the Nov. 29, 2012 Cleveland police chase and shooting.

Attorneys for Sgt. Michael Donegan, Lt. Paul Wilson, Sgt. Randolph Daley, Sgt. Jason Edens and Sgt. Patricia Coleman appeared with their clients in court.

A sixth Cleveland police officer invoked his Fifth Amendment right against self-incrimination after taking the stand at the trial last Wednesday.

Officer Michael Demchake immediately stated he was told not to answer questions based on advice from his attorneys.

His refusal to answer questions sparked an angry outburst by Cuyahoga County Prosecutor Tim McGinty.

"We need his testimony in this trial. We're asking for his testimony. We're asking for the truth. That is his duty as a police officer," said McGinty.

McGinty said Brelo's colleagues knew he was "in trouble" for jumping on the hood of Timothy Russell's Chevy Malibu and firing at least 15 shots through the windshield at the conclusion of the November 2012 CPD chase and shooting.

View a PHOTO GALLERY of some of the crime scene photos here

During opening statements last Monday , prosecutors said Brelo committed a crime when he jumped onto the hood of Russell's car and fired 15 to 18 shots through the front windshield.

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CPD officers plead the fifth

CLEVELAND, Ohio - Five more police supervisors invoked their Fifth Amendment right against self-incrimination Monday in the trial of Cleveland police officer Michael Brelo.

The five supervisors have been charged with dereliction of duty in connection with the same Nov. 29, 2012 police chase and fatal shootings that resulted in Brelo being charged with voluntary manslaughter.

Michael Donegan, Patricia Coleman, Randolph Dailey, Jason Edens and Paul Wilson have all pleaded not guilty to the charges, and a date for their trial has not been set yet.

Brelo, 31, is charged with two counts of voluntary manslaughter in thedeaths of Timothy Russell and Malissa Williams. Russell drove the Chevy Malibu that led police on the chase. Williams was a passenger in the car.

The supervisors appeared in court on Monday, but none took the witness stand. Instead, they pleaded the Fifth as a group, with their lawyers present. There was no discussion of their right to plead the Fifth, as there was last week, when Officer Michael Demchak invoked his Fifth Amendment right.

The rest of the morningfocused on a Bratenahl police officer and a Cleveland police officer, both of whom were involved in the chase but not the shooting.

Here are highlights from the morning's testimony.

1. A Bratenahl police officer suspected crossfire.

Bratenahl Sgt. Michael Flanagan, a K-9 officer, testified to joining the chase and stopping at Lee Boulevard, perpendicular to the driveway that Russell's 1979 Malibu was stopped in.

Flanagan said he got out of his car, heard shots fired, and ran to take cover behind a nearby gray Ford.

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Five police supervisors plead the Fifth in the trial of Cleveland police officer Michael Brelo

By Ryan Mavity | Apr 13, 2015

Dover A Delaware Superior Court judge is expected to rule within 90 days on a motion for summary judgment in a civil sexual-assault case against former Sussex County Councilman Vance Phillips.

Phillips did not appear at the April 13 hearing in Dover. In previous depositions Phillips has consistently invoked his Fifth Amendment right not to incriminate himself.

Brian Brittingham, attorney for Phillips accuser, Katelynn Dunlap, said Phillips silence is telling, as he has not refuted accusations that Phillips sexually assaulted Dunlap 10 times in different locations starting May 9, 2011, and continuing through July.

According to Dunlaps lawsuit, the relationship between the now 21-year-old Lincoln woman and the then-Sussex councilman began in 2010 when Dunlap was 16. When Dunlap turned 18 in April 2011, Phillips was 48; the lawsuit says at that point, the relationship took a sexual turn. On May 9, the lawsuit said, Dunlap met Phillips in the parking lot of a Georgetown dental office, where Dunlap alleges Phillips tried to have sex with her and then threatened her if she told anyone.

Despite ample opportunity, the defendant wholly failed to address the claims at issue, Brittingham said. He said Phillips has consistently invoked the Fifth Amendment to avoid addressing Dunlaps allegations. He also invoked the Fifth Amendment to avoid answering questions not related to the allegations, such as when Phillips and his wife divorced.

Defense attorney Kurt Heyman said the court could not infer guilt from Phillips decision to invoke his Fifth Amendment rights. He said Dunlap has made inconsistent statements and has changed her story numerous times.Heyman said at one point, Dunlap said some of the encounters with Phillips were consensual, but she later changed her story to say she was sexually assaulted.

Brittingham said Dunlaps inconsistencies are explained by the fact that she was fearful, confused, shamed and intimidated by Phillips. He said Dunlap was scared of retaliation by Phillips and had an emotional breakdown.

While Heyman said the case hinges on Dunlaps credibility, Brittingham said third parties, including family and Delaware State Police officers, support Dunlaps credibility. Brittingham said a reasonable jury would find Dunlaps claims to be true and award her damages.

The April 13 arguments were a subdued affair, with only Dunlaps family attending the proceedings. Dunlap is seeking punitive damages and legal fees. Judge William Witham offered no timetable for when he would rule on the motion, but Heyman said he would have 90 days to make a ruling. If Witham does not grant the motion, the case would head to trial.

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Phillips declines to face his accuser

DOVER, Del. (AP) - Attorneys for a young woman who claims in a lawsuit that she was sexually abused by former Republican Sussex County Councilman Vance Phillips asked a Superior Court judge on Monday to find Phillips liable because he has not explicitly denied the allegations.

Citing his Fifth Amendment right against self-incrimination, Phillips has refused to address the allegations by the 21-year-old woman, who was once his political protegee, even though he has previously said that he looked forward to telling his side of the story to a jury.

The Associated Press does not normally identify possible victims of sexual assault.

The woman's lawyers argued that the judge should grant partial summary judgment in her favor regarding liability because Phillips has not disputed the allegations.

"The defendant wholly failed to address the claims at issue," attorney Brian Brittingham told Judge William Witham Jr.

Brittingham said Phillips' decision to invoke the Fifth Amendment does not amount to a denial or a defense, but was simply "the avoidance of an answer."

After a brief hearing, Witham gave no indication on when he would rule.

Delaware State Police investigated Phillips in 2012 after members of the General Assembly received an anonymous letter claiming he was involved in a relationship with an underage girl. No criminal charges were ever filed, but Phillips invoked his rights against self-incrimination in the civil action after the lawsuit was filed in May 2013.

Kurt Heyman, a lawyer for Phillips, told Witham the court cannot infer his liability based on the assertion of his Fifth Amendment rights, especially on a motion for summary judgment. He also said inconsistent and contradictory statements the woman has made about her relationship with Phillips and the allegations of abuse preclude summary judgment in her favor, and that a jury must determine whether she is believable.

"It's for the jury to decide which version of her story to credit," he said.

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Judge Weighs Sex Allegations Against Former Sussex Official