Amendment V

Passed by Congress September 25, 1789. Ratified December 15, 1791. The first 10 amendments form the Bill of Rights.

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.

United States Courts Workcloud^[1]

INTRODUCTION TO AMENDMENT V

Named amongst the Bill of Rights, Amendment V shares a similar historical foundation as the other nine amendments.  It provides notable protections as well as the framework for the Miranda Warnings.  The basis of its approach is traced to both the Fifteenth and Sixteenth centuries which proved to be an ambiguous, legal timeframe.  However, it is clear that the emergence of certain newly allowed legal procedures supported by the Crown were contrary to the customary traditional law.^[2]  While this internal battle of justice and the law continue to unfold, jurists began openly identifying blatant disregards for justice as it related to the codified law.  Furthermore, one of the most influential portions of the Fifth Amendment, the privilege against self-incrimination, began and ended with a revolution.  Originally, the revolution involved religion, but later the revolution concluded with the state question.^[3]  Specifically, different sects of the Protestants battled other groups regarding the privilege against self-incrimination.  These battles brewed between the Anglicans & Calvinists or the Crown & the Parliament.  Thus, the privilege exists today within the American system due to England’s shift in faith to Anglican in the Sixteenth century as well as the Calvinists who became involved in the battle of injustices.^[4]  Therefore, the Fifth Amendment in America reveals five key components.

ANALYSIS OF AMENDMENT V

Part I: Right to Presentment or Grand Jury Indictment

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;

Grand Jury Indictments^[5]

This section frames how a criminal case begins which takes into account two variables:

1. Whether the crime involved a violation of state or federal laws; and
2. The seriousness of the crime is (i.e., felony vs. misdemeanor or other category of crime).

When prosecutors examine a case, there are many options available to them to proceed with criminal charges.  One option is a grand jury defined as “[a] body of ([usually] 16 to 23) people who are chosen to sit permanently for at least a month — and sometimes a year — and who, in ex parte proceedings, decide whether to issue indictments.”^[6]  One may believe that every case begins with a grand jury.  In fact, this is untrue.  Cases may begin through information, presentment, a grand jury indictment and/or complaint of witness.  According to Black’s Law Dictionary, information “is a formal criminal charge made by a prosecutor without a grand-jury indictment.”^[7]  Whereas, an information, also known as a bill of information, is prevalent when prosecutors charge defendants with misdemeanors.  Ironically, some states allow prosecutors the use of information as a charging mechanism in felonies, as well.  Each state provides their own policy and process when charging defendants.

In some rare instances, states allow presentment as a charging mechanism.  A presentment “is a formal written accusation returned by a grand jury on its own initiative, without a prosecutor’s previous indictment request.”^[8]  Recall, a presentment is an outdated legal tool; however, some prosecutors are allowed to use presentments to help toll the statute of limitations on a case.  The justices in State v. Baker (2018) emphasized the timing and prosecutor’s inability to circumvent proper jurisdiction as a means to obtaining charges and/or indictments.^[9]  Presentment is primarily a process of the past by which individuals of the grand jury “initiated an independent investigation and asked that a charge be drawn to cover the facts should they constitute a crime.”^[10]  However, this process is rarely used now due to the attorneys’ ability to provide expertise and direction to grand juries.

Part II:  Right Against Double Jeopardy

This section of the Fifth Amendment is widely quoted, erroneously applied, and continuously referenced.  The right against double jeopardy is an important foundation of the criminal justice process; however, it is rarely applied correctly.  In fact the double jeopardy clause is evidenced in the Fifth Amendment.  However, the double jeopardy clause “does not prevent postacquittal appeals by the government if those appeals could not result in the defendant’s being subjected to a second trial for substantially the same offense before a second fact-trier. See U.S. v. Wilson, 420 U. S. 332…(1975).”  Here the Constitution refers to the term offence.  Significantly, the term offence means and it is interchangeable with the term offense.  Most scholars note there is no definitional difference between these two terms; however, there is, in fact, a dialectal difference.^[22] Offence is primarily used with British audiences, where the term offense is better suited for American audiences.^[23] Black’s Law defines offense as “a violation of the law; a crime, often a minor one.”^[24]  It is Latin for offendre meaning “to strike against.”^[25]  Thus, when an individual engages in an alleged offense, they are in fact striking out against a law, ordinance, or statute.  Additionally, an offense is known as a crime or criminal offense.  Let’s continue our analysis of the language of this section of Amendment V, by discussing the term jeopardy.

Part III:  Privilege Against Self-Incrimination

nor shall be compelled in any criminal case to be a witness against himself,

Self-Incrimination^[34]

Prior to this clause we have only reviewed and identified freedoms and rights as contained in the United States Constitution.  Each word holds significant and unique meaning; hence, identifying something as a freedom or a right provides a completely different meaning to the clause.  In this section, we will review a privilege.  According to Black’s a privilege “grants someone the legal freedom to do or not to do a given act.  {Privilege} immunizes conduct that, under ordinary circumstances, would subject the actor to liability.”^[35]

Furthermore, a privilege within a legal realm may also coincide with the rules of evidence.  According to Black’s Law Dictionary, it defines Rules of Evidence as “[t]he body of law regulating the admissibility of what is offered as proof into the record of a legal proceeding.”^[36]  Rules of Evidence provide parameters as to what is appropriately admitted in court.  In fact, privileged information is not subject to disclosure or discovery due to the nature of its content.  According to Cornell Law “…privileges exist not because of a fear that information provided will be inaccurate, but because there are public policy reasons that the information should not be disclosed.”^[37]  Some common examples of privilege are attorney-client privilege, clergy privilege, spousal privilege, and of course privilege against self-incrimination.

What privilege is guaranteed in this section of the Fifth Amendment?  The privilege against self-incrimination or more commonly known as I plead the Fifth.  Black’s defines self-incrimination as “[t]he act of indicating one’s own involvement in a crime or exposing oneself to prosecution, especially by making a statement.^[38]  Black’s Law Dictionary seeks to remind actors and those who may use this privilege that it is not absolute in its execution as the information, if obtained with a third party present, is not privileged.  If this does not occur, then the privilege against self-incrimination operates as “an evidentiary rule that gives a witness the option to not disclose the fact asked for, even though it might be relevant.”^[39]  The privilege may be waived under certain conditions, but the general policy surrounding the privilege must be regarded.  Waiving a privilege requires a full disclosure by the entity seeking to obtain information.  Waiving a privilege entails one abandoning, renouncing or surrendering a privilege that one was technically entitled to exercise.^[40]

No entity or governmental agent may compel a witness to provide evidence, testimony or information which may culminate in criminal prosecution.^[41]  Furthermore, defendant’s can not be penalized if they chose to waive this privilege.  Operationally, the prosecutor and law enforcement agents should methodically build their cases with valid evidence regardless of the defendant making statements against one’s self.  Finally, the privilege against self-incrimination only applies to testimony and/or verbal answers to questioning or grand jury requests.^[42]

Therefore, a defendant can not invoke the privilege against self-incrimination if asked to produce hair samples, handwriting samples, or voice recordings.

The Framers of the United States Constitution used specific language to indicate that individuals on American soil are entitled to a procedure which allows a just and fair hearing prior to governmental entities attempting to take anyone’s life (death eligibility), liberty (jail, prison, parole, and to some extent probation sentencing), or property (personal and real). This procedure is identified as due process of the law.  What is due process?  Black’s defines due process as “the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.”^[48]  For the most part, due process is an important tenet of the Constitution and represents an equitable approach to legal proceedings.  Similarly, due process falls under two categories: substantive and procedural.

According to Black’s, substantive due process is “the doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective.”^[49]  Substantive due process really examines the essence of how the law itself is written, created, and legitimized.^[50]  Additionally, substantive due process is when we ask ourselves was this law written in a way that is fair and equitable to all who may be charged?  An example of a violation of substantive due process would be Congress passing a bill which sets an official religion for the United States of America with the President showing their approval by signing it into law.  For more explanation of Substantive Due Process, review Chapter 10 in this textbook.

Conversely, procedural due process is defined as “the minimal requirements of notice and a hearing guaranteed by the Due Process Clauses of the 5th and 14th Amendments, especially if the deprivation of a significant life, liberty, or property interest may occur.^[51]  Procedural due process notes that if two defendants are charged with the same crime, then they will be afforded the same protections, such as a jury trial, within the criminal justice system regardless of their race, socioeconomic status, gender, religion, ethnicity, and so forth.  By way of example, two defendants charged with the same possession of drugs charge with the same evidence and same criminal history should proceed through the criminal justice system in the same way.  When anything veers or creates a different result for the same charges, this is an example of a procedural due process violation.  Finally, a complete analysis of a procedural due process violation should include a thorough analysis of any exceptions which may apply. 

a.  Miranda v. Arizona

Ernesto Miranda – Miranda v. Arizona, 384 U.S. 436 (1966)^[52]

As such, the Due Process in the Fifth Amendment must include a full discussion of Miranda v. Arizona (1966).^[53]  The landmark case, Miranda v. Arizona (1966), combined four cases with four separate sets of plaintiffs and defendants.  In this significant case, the court articulated defendants’ Constitutional rights which law enforcement agents’ must use when a defendant is in custodial interrogation.  In Miranda, the suspect was interrogated regarding a kidnapping and rape.  During the interrogation, agents secured a verbal confession and written confession admissible at trial.  Miranda’s defense attorney objected to both confessions based upon Miranda’s lack of counsel during questioning as well as a failure for Miranda being advised about this privilege against self-incrimination and right to remain silent.  Law enforcement agents testified Miranda was aware of legal rights, but was not informed of his right to counsel during interrogation.^[54]  Ultimately, Miranda was convicted and appealed his case.  The Supreme Court would change the protocol for law enforcement agents based upon rights and privileges which suspects possessed, but may not understand or know exist.  Cornell Law emphasized the courts’ stance on the flow of interrogation noting, “[w]here the individual answers some questions during in-custody interrogation, he has not waived his privilege, and may invoke his right to remain silent thereafter.”^[55]

The Miranda warnings are usually followed by a verbal acknowledgment that the suspect has heard and understood the warning.  Remember, courts have held that specific words contained in Mirandaare not necessary to comply with the warnings.  However, giving the Miranda warnings are just the beginning of the safeguards of a suspect’s Constitutional rights.

After the Miranda warning is given, a person in custody can invoke or waive his or her rights. If the detainee invokes their rights, then they will “put into legal effect or call for the observance of the Constitutional protections” within the Fifth Amendment.^[57] The detainee may waive their rights which manifests as “abandon[ing], renounc[ing], or surrender[ing] (a claim, privilege, right, etc.).”^[58]  One such waiver is the jury waiver which includes “[a] form signed by a criminal defendant who relinquishes the right to have the trial conducted before a jury.”^[59]  It is important to note that most legal authorities require that those who invoke the waiver must do so knowingly, freely and voluntarily.  Black’s Law Dictionary emphasizes the standards of a waiver in its definition.  “The voluntary relinquishment or abandonment — express or implied — of a legal right or advantage…”  The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it [in order for it to be fully effectuated.]^[60] At this juncture, all questioning must cease with a call for an attorney.  If questioning should restart, then the detainee must agree to proceed without counsel present (agents should memorialize this agreement) as silence can not be construed as a waiver.

Thus, it is imperative that law enforcement agents are clear as to the suspect’s intention when Miranda warnings are necessary.  Every situation does not require Miranda warnings.  One such incident is when a witness is being questioned about their general impressions of a victim.  However, Miranda warnings may be required if the witness becomes a suspect and the questioning becomes custodial interrogation.  Therefore, agents should be careful to advise and inform suspects of Miranda warnings soon and often.  Consider what occurs if the Miranda warning requirement is violated.

b.  Exclusionary Rule

Exclusionary Rule^[61]

If the Miranda warning is not given, and a suspect fails to waive their rights, the exclusionary rule may be triggered as discussed in the Fourth Amendment.  The exclusionary rule could apply and nullify any statements made causing the evidence to be inadmissible.  Thus, this is a case of fruit of the poisonous tree as explained under the Fourth Amendment.

Part V:  Right to Just Compensation for Private Property

nor shall private property be taken for public use, without just compensation.

The right to just compensation according to this section does not necessarily equal the amount of money a property owner desires or feels is an appropriate value based upon their love and attachment for their property.  The just compensation is held as the fair marketable value of the private property which is required from the governmental entity.  This process for the government to acquire the land is known as eminent domain.  According to Black’s, eminent domain involves “[t]he inherent power of a governmental entity to take privately owned property, especially land, and convert it to public use, subject to reasonable compensation for the taking.”^[62]  Note a taking is defined as “[t]he government’s actual or effective acquisition of private property either by ousting the owner or by destroying the property or severely impairing its utility. There is a taking of property when government action directly interferes with or substantially disturbs the owner’s use and enjoyment of the property.”^[63]  These standards must be evaluated before determining a taking has occurred.

a.  Eminent Domain

Just Compensation and Eminent Domain relationship^[64]

Courts broadly interpret the Fifth Amendment to allow the government to seize property if doing so will increase the general public welfare.  Eminent domain refers to the power of the government to take private property and convert it into public use.  The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners.  In Kelo v. City of New London (2005), the Supreme Court allowed a taking when the government used eminent domain to seize private property to facilitate a private development.^[65]  The Court considered the taking to be a public use because the community would enjoy the furthering of economic development.  Further, the Kelo court determined that a governmental claim of eminent domain is justified if the seizure is rationally related to a conceivable public purpose.^[66]

As such, the Kelo decision significantly broadened the government’s takings power.  This caused significant controversy and states were quick to act to quell concerns about this expansion of power.  In response to Kelo, many states have passed laws which have restricted governments’ takings abilities.  One example is – implementing a stricter definition of what constitutes a “public use” which requires  a  heightened level of scrutiny to justify an action categorized as a taking.^[67]

b.  When is a Regulation a Taking?

What constitutes a taking?^[68]

After determining if eminent domain exists, then one must determine if a regulation is present?  If such a regulation exists, then one must determine if the regulation is a legal government taking?  How do you determine if a legal taking has occurred?  According to Pa Coal Co. v. Mahon (1922), the Supreme Court of the United States held that government regulation will not be deemed a taking unless the regulation severely damages the value of the property.^[69]  Sometimes, a government regulation infringes upon private property ownership to such an extent that the regulation can be considered a taking, thus requiring just compensation.  In United States v. Dickinson (1947), the Supreme Court held that even if the government does not physically seize private property, the action is still a taking “when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.”^[70]

c.  Just Compensation Requirement

After determining that the government taking was valid, then one must determine if the just compensation requirement has been met.  In Kohl v. United States (1875), the Supreme Court held that the government may seize property through the use of eminent domain, as long as it appropriates just compensation to the legal owner of the property.^[72]  How does one identify when just compensation exists?  In Loretto v. Teleprompter Manhattan CATV Corp (1982), the Supreme Court clarified that when the government engages in a taking and implements a permanent physical occupation of the property, then the property owner must be given just compensation.^[73] 

Perhaps, just compensation’s definition sheds some light on the standard as it is “…a payment by the government for property it has taken under eminent domain — [usually] the property’s fair market value, so that the owner is theoretically no worse off after the taking.”^[74]  The court further defined just compensation based upon the size of the area which the government takes.  The court clarified that just compensation must occur regardless if the area is small and the government’s use does not greatly affect the owner’s economic interest.  Therefore, the court reiterated any governmental taking warrants just compensation.

d.  Public Use Requirement

Notice Private Dumpster Not For Public Use^[75]

Lastly, if a governmental taking is deemed to have met the just compensation requirement, then the public use requirement must be reviewed.  What is public use?  According to Black’s, public use is defined as “[a] legitimate public purpose for the condemnation of private property.”^[76]  Thus, any analysis of public use must include determining “[i]f property is taken for a legitimate public purpose — one that is within the scope of the government’s police power.”^[77]  If one determines, the government taking was for a legitimate public purpose, then “…the public-use requirement is satisfied, regardless of who physically uses the property once it is taken.”^[78]  In Kelo, the Supreme Court held that general benefits which a community would enjoy from the furthering of economic development is sufficient to qualify as a “public use.”^[79]  Therefore, the court’s review for a public use is expansive establishing most government takings as valid.

Critical Reflections:

1. Critics assert that grand juries are not their own entity.  Instead, critics believe grand juries are an extension of the prosecutor’s office.  Read the Trump indictment listed above at Footnote 15.  Barring your political affiliations, assess the indictment based upon the language and legal format.  Does the indictment meet the legal standards necessary for a “true bill?”  Why or why not?
2. If due process is a right held by the Fifth Amendment, then why is it implemented differently throughout the criminal justice system?
3. Should the government be allowed to use eminent domain? Why or why not?