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Fifth Amendment

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Description: Amendment to the U.S. Constitution and part of the Bill of Rights that provides a right to avoid self-incrimination, a right to a grand jury indictment in capital or infamous crime cases, a right to be free from double jeopardy, and a right to just compensation for property taken by the government.


Significance: The Supreme Court has used the Fifth Amendment to protect citizens against government coercion.


The Fifth Amendment includes more than just a right against self-incrimination, yet it is virtually synonymous with the right against self-incrimination. This right reflected the framers’ judgment that in a society based on respect for the individual, the government shouldered the entire burden of proving guilt and the accused need make no unwilling contribution to his or her conviction. The Fifth Amendment is restricted on its face to “criminal cases.” However, the Supreme Court ruled that the Fifth Amendment applies to criminal and civil cases and extends to nonjudicial proceedings, such as legislative investigations and administrative hearings. The protection of the clause extends only to people, not organizations such as corporations or unions, and is applicable to witnesses as well as to the accused. The self-incrimination clause is violated if evidence compelled by the government incriminates the person who provides it. Given these standards, self-incrimination violations occur most commonly during police interrogations and government hearings. Although the purpose of the clause is to eliminate the inherently coercive and inquisitional atmosphere of the interrogation room, a person may voluntarily answer any incriminating question or confess to any crime, subject to the requirements for waiver of constitutional rights, even if his or her statements are intended as exculpatory but lend themselves to prosecutorial use as incriminatory.


A Definition

The Court first addressed the meaning of the self-incrimination clause in Twining v. New Jersey (1908). The question was whether the right against self-incrimination was “a fundamental principle of liberty and justice which inheres in the very idea of free government” and therefore should be included within the concept of due process of law safeguarded from state abridgment. The Court decided against the right. It reaffirmed this position in Palko v. Connecticut (1937), in which the Court held that the right against compulsory self-incrimination was not a fundamental right; it might be lost, and justice might still be done if the accused “were subject to a duty to respond to orderly inquiry.” The Court abandoned this position in its 1966 decision in Miranda v. Arizona, a tour de force on self-incrimination. The opinion announced a cluster of constitutional rights for defendants held in police custody and cut off from the outside world. The atmosphere and environment of incommunicado interrogation was held to be inherently intimidating and hostile to the privilege against selfincrimination. To prevent compulsion by law enforcement officials, before interrogation, people in custody must be clearly informed that they have the right to remain silent and anything they say may be used in court against them and that they have the rights to consult an attorney, to have a lawyer present during interrogation, and to have a lawyer appointed if they are indigent. When Chief Justice Warren E. Burger replaced Chief Justice Earl Warren in 1964 and Justice Harry A. Blackmun replaced Justice Abe Fortas in 1970, they joined Justices Byron R. White, John M. Harlan II, and Potter Stewart in support of a narrow application of Miranda. These five justices constituted the majority in Harris v. New York (1971), indicating the beginning of a contracting trend for Miranda. Chief Justice Burger held that the prosecution is not precluded from the use of statements that admittedly do not meet the Miranda test as an impeachment tool in attacking the credibility of an accused's trial testimony. The erosion of Miranda continued in several rulings in the 1970's. In Michigan v. Tucker (1974), the Court held that failure to inform a suspect of his or her right to appointed counsel before interrogation was only a harmless error in the total circumstances of the case. Then one year later in Oregon v. Haas (1975), the Court reaffirmed Harris and allowed the use of a suspect's statements for impeachment purposes though they had been made before arrival of counsel that he had requested before making any statements. And the next year in Michigan v. Mosley (1976), the Court did not construe Miranda as invoking a “proscription of indefinite duration on any further questionings…on any subject.” This ruling approved an interrogation process in which a suspect had initially used the shield of Miranda rights to remain silent but several hours later in a different room was administered the Miranda rights again and proceeded to respond to questions about a different crime. By the mid-1980's it was clear that the Court under Chief Justice William H. Rehnquist would continue to construe Miranda very narrowly. In New York v. Quarles (1984), for example, the Court held that when a danger to public safety exists, police may ask questions to remove that danger before reading Miranda warnings. Answers given to the police may be used as evidence. In Illinois v. Perkins (1990), the Court ruled that Miranda warnings are not required when a suspect is unaware he or she is speaking to the police and gives a voluntary statement. The case concerned a jailed defendant who implicated himself in a murder when talking to an undercover agent placed in his cell. Justice Anthony M. Kennedy wrote in the opinion, “Miranda forbids coercion, not mere strategic deception.” Finally, in Arizona v. Fulminante (1991), the Court admitted that the defendant's confession was coerced by the threat of physical attack. However, the Court held that if such testimony is erroneously admitted as evidence, a conviction need not be overturned if sufficient independent evidence supporting a guilty verdict is also introduced. At the turn of the century, the Court's decision to maintain the precedent with continued narrow application of Miranda appeared well entrenched. The majority of the justices appeared to be comfortable with that approach, and changes appeared unlikely.


Double Jeopardy Clause

Also under the Fifth Amendment, a person shall not be subject “for the same offense to be twice put in jeopardy of life or limb.” The underlying premise of the double jeopardy clause is to prohibit the government from making repeated attempts to convict an individual. Acquittal acts as an absolute bar on a second trial. The meaning of acquittal, however, often divides the Court. The Court ruled that there is no double jeopardy in trying someone twice for the same offense if the jury is unable to reach a verdict in United States v. Ball (1896), the jury is discharged in Logan v. United States (1892), or an appeals court returns the case to the trial court because of defects in the original indictment in Thompson v. United States (1894). The Court also unanimously ruled in three cases Jerome v. United States (1943), Herbert v. Louisiana (1926), and United States v. Lanza (1922) that a person may be prosecuted for the same act under federal law and state law. The theory is that the person is being prosecuted for two distinct offenses rather than the same offense. The double jeopardy clause also prohibits prosecutors from trying defendants a second time for the express purpose of obtaining a more severe sentence. However, in 1969 the Court decided that there is no constitutional bar to imposing a more severe sentence on reconviction (after the first conviction is thrown out), provided the sentencing judge is not motivated by vindictiveness. In North Carolina v. Pearce; Chaffin v. Stynchcombe (1973), it ruled that the guarantee against double jeopardy requires that punishment already exacted must be fully credited to the new sentence. The double jeopardy clause also bars multiple punishments for the same offense. In United States v. Ursery (1996) and Kansas v. Hendricks (1997), the Court narrowly construed this right. The latter case involved a challenge to a statute that permitted the state to keep certain sexual offenders in custody in a mental institution after they had served their full sentence. The Court ruled that the civil confinement was not a second criminal punishment but a separate civil procedure, thus not a violation of the double jeopardy clause.


Right to a Grand Jury

The Fifth Amendment also provides that “no person shall be held 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.” The grand jury procedure is one of the few provision in the Bill of Rights that has not been incorporated into the due process clause of the Fourteenth Amendment and applied to the states. Instead the Court ruled that states may prosecute on a district attorney's “information,” which consists of a prosecutor's accusation under oath in Hurtado v. California (1884) and Lem Wood v. Oregon (1913). The Court held in Costello v. United States (1956) that, unlike in a regular trial, grand juries may decide that “hearsay” evidence is sufficient grounds to indict. In 1992 the Court issued an opinion in United States v. Williams (1992) indicating that an otherwise valid indictment may not be dismissed on the ground that the government failed to disclose to the grand jury “substantial exculpatory evidence” in its possession. In 1974 the Court decided in United States v. Calandra that witnesses before a grand jury may invoke the Fifth Amendment privilege against self-incrimination. This privilege is overridden if the government grants immunity to the witness. Witnesses who then refuse to answer questions may be jailed for contempt of court. Witnesses may not refuse to answer because questions are based on illegally obtained evidence.


The Takings Clause

Finally, the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” This is referred to as the takings clause, or the just compensation clause. The Court incorporated the takings clause under the due process clause of the Fourteenth Amendment in Chicago, Burlington, and Quincy Railroad Co. v. Chicago (1897); therefore, states are also forbidden from taking private property for public use without just compensation. Not every deprivation of property requires compensation, however. For example, the Court held in United States v. Caltex (1952) that under conditions of war, private property may be demolished to prevent use by the enemy without compensation to the owner. When compensation is to be paid, a plethora of 5-4 decisions by the Court including United States v. Fuller (1973) and Almota Farmers Elevator and Wholesale Co. v. United States (1973) demonstrate fundamental disagreements among the justices about the proper method of calculating what is “just.” Court decisions in the early and mid-1990's underscore the complexity and reach of the takings clause. Several cases broadened the powers of the states, and others expanded property rights. In Yee v. Escondido (1992), a unanimous Court held that a rent-control ordinance did not amount to a physical taking of the property of owners of a mobile home park. A more significant ruling, Lucas v. South Carolina Coastal Council (1992), narrowed the rights of states to rely on regulatory takings that completely deprive individuals of the economic use of their property. To be exempt from compensating a property owner, a state must claim more than a general public interest or an interest in preventing serious public harm. The Court broadened property rights by holding that land use requirements may be “takings.” The decision in Dolan v. City of Tigard (1994) dealt with the practice of local governments giving property owners a permit for building a development only on the condition that they donate parts of their land for parks, bike paths, and other public purposes. These conditions are valid only if the local government makes “some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” This 5-4 decision underscores the Court's inability to reach agreement on constitutional principles under the Fifth Amendment.



Further Reading

  • General works on the Fifth Amendment include Alfredo Garcia's The Fifth Amendment: A Comprehensive Approach (Westport, Conn.: Greenwood Press, 2002), Harvey Fireside's The Fifth Amendment: The Right to Remain Silent (Springfield, N.J.: Enslow, 1998), and Burnham Holmes's The Fifth Amendment (Englewood Cliffs, N. J.: Silver Burdett Press, 1991). David Bodenhamer's Fair Trial: Rights of the Accused in American History (New York: Oxford University Press, 1992) presents a useful account of double jeopardy and self-incrimination rights. Also recommended is Anthony Lewis's Gideon's Trumpet (1964. New York: Vintage, 1989). A well-written and thorough account of the takings clause is found in Richard Epstein's Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985). A more scholarly account is James Ely's The Guardian of Every Other Right: A Constitutional History of Property Rights (New York: Oxford University Press, 1992).