Fifth Amendment to the United States Constitution
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Fifth Amendment to the United States Constitution

The Fifth Amendment to the United States Constitution
is part of the Bill of Rights and protects against unfair treatment in legal processes.
The Amendment requires that felonies be tried only upon indictment by a grand jury; the
Grand Jury Clause is one of the few provisions of the Bill of Rights not held to have been
incorporated to the states, most of which have replaced grand juries. The Amendment
also provides several trial protections, including the right against self-incrimination as well
as the right to be tried only once in federal court for the same offense. The Amendment
also has a Due Process Clause as well as an implied equal protection requirement. Finally,
the Amendment requires that the power of eminent domain be coupled with “just compensation”
for those whose property is taken. Text 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. Infamous crime
Whether a crime is “infamous” is determined by the nature of the punishment that may be
imposed, not the punishment that is actually imposed; however, crimes punishable by death
must be tried upon indictments. In United States v. Moreland, 258 U.S. 433, the Supreme
Court held that incarceration in a prison or penitentiary, as opposed to a correction
or reformation house, attaches infamy to a crime. In Mackin v. United States, 117 U.S.
348, the Supreme Court judged that “‘Infamous crimes’ are thus, in the most explicit words,
defined to be those ‘punishable by imprisonment in the penitentiary.'”, while it later in
Green v. United States 356 U.S. 165, stated that “imprisonment in a penitentiary can be
imposed only if a crime is subject to imprisonment exceeding one year”. Therefore an infamous
crime is one that is punished by imprisonment for over one year. Susan Brown, a former defense
attorney and Professor of Law at the University of Dayton School of Law, concluded: “Since
this is essentially the definition of a felony, infamous crimes translate as felonies.”
Grand jury Grand juries, which return indictments in
many criminal cases, are composed of a jury of peers and operate in closed deliberation
proceedings; they are given specific instructions regarding the law by the judge. Many constitutional
restrictions that apply in court or in other situations do not apply during grand jury
proceedings. For example, the exclusionary rule does not apply to certain evidence presented
to a grand jury; the exclusionary rule states that evidence obtained in violation of the
Fourth, Fifth or Sixth amendments cannot be introduced in court. Also, an individual does
not have the right to have an attorney present in the grand jury room during hearings. An
individual would have such a right during questioning by the police while in custody,
but an individual testifying before a grand jury is free to leave the grand jury room
to consult with his or her attorney outside the room before returning to answer a question. Currently, federal law permits the trial of
misdemeanors without indictments. Additionally, in trials of non-capital felonies, the prosecution
may proceed without indictments if the defendants waive their Fifth Amendment right.
Grand jury indictments may be amended by the prosecution only in limited circumstances.
In Ex Parte Bain, 121 U.S. 1, the Supreme Court held that the indictment could not be
changed at all by the prosecution. United States v. Miller, 471 U.S. 130 partly reversed
Ex parte Bain; now, an indictment’s scope may be narrowed by the prosecution. Thus,
lesser included charges may be dropped, but new charges may not be added.
The Grand Jury Clause of the Fifth Amendment does not protect those serving in the armed
forces, whether during wartime or peacetime. Members of the state militia called up to
serve with federal forces are not protected under the clause either. In O’Callahan v.
Parker, 395 U.S. 258, the Supreme Court held that only charges relating to service may
be brought against members of the militia without indictments. That decision was overturned
in 1987, when the Court held that members of the militia in actual service may be tried
for any offense without indictments. The grand jury indictment clause of the Fifth
Amendment has not been incorporated under the Fourteenth Amendment. This means that
the grand jury requirement applies only to felony charges in the federal court system.
While many states do employ grand juries, no defendant has a Fifth Amendment right to
a grand jury for criminal charges in state court. States are free to abolish grand juries,
and many have replaced them with preliminary hearing.
Double jeopardy [N]or shall any person be subject for the
same offense to be twice put in jeopardy of life or limb …
The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution
after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain
mistrials, and multiple punishment in the same indictment. Jeopardy “attaches” when
the jury is empaneled in a jury trial, when the first witness is sworn in during a bench
trial, or when a plea is accepted unconditionally. Prosecution after acquittal
The government is not permitted to appeal or try again after the entry of an acquittal,
whether a directed verdict before the case is submitted to the jury, a directed verdict
after a deadlocked jury, an appellate reversal for sufficiency, or an “implied acquittal”
via conviction of a lesser included offense. In addition, the government is barred by collateral
estoppel from re-litigating against the same defense, a fact necessarily found by the jury
in a prior acquittal, even if the jury hung on other counts.
This principle does not prevent the government from appealing a pre-trial motion to dismiss
or other non-merits dismissal, or a directed verdict after a jury conviction, nor does
it prevent the trial judge from entertaining a motion for reconsideration of a directed
verdict, if the jurisdiction has so provided by rule or statute. Nor does it prevent the
government from retrying the defendant after an appellate reversal other than for sufficiency,
including habeas, or “thirteenth juror” appellate reversals notwithstanding sufficiency on the
principle that jeopardy has not “terminated.” There is also an exception for judicial bribery
in a bench trial. Multiple punishment, including prosecution
after conviction In Blockburger v. United States, the Supreme
Court announced the following test: the government may separately try and punish the defendant
for two crimes if each crime contains an element that the other does not. Blockburger is the
default rule, unless the legislatively intends to depart; for example, Continuing Criminal
Enterprise may be punished separately from its predicates, as can conspiracy.
The Blockburger test, originally developed in the multiple punishments context, is also
the test for prosecution after conviction. In Grady v. Corbin, the Court held that a
double jeopardy violation could lie even where the Blockburger test was not satisfied, but
Grady was overruled in United States v. Dixon. Prosecution after mistrial
The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a
mistrial, there is no bar to retrial, unless the prosecutor acted in “bad faith,” i.e.
goaded the defendant into moving for a mistrial because the government specifically wanted
a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the
trial judge finds “manifest necessity” for granting the mistrial. The same standard governs
mistrials granted sua sponte. Self-incrimination
The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating
oneself is defined as exposing oneself to “an accusation or charge of crime,” or as
involving oneself “in a criminal prosecution or the danger thereof.” 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. … ” 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.” Historically, the legal protection against
compelled self-incrimination was directly related to the question of torture for extracting
information and confessions. 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. Anyone refusing to take the oath ex officio mero was considered guilty. 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.”
Legal proceeding The Fifth Amendment privilege against compulsory
self-incrimination applies when an individual is called to testify in a legal proceeding.
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,
and whether the proceeding itself is criminal or civil.
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 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. The amendment has also been used by defendants
and witnesses in criminal cases involving the Mafia.
The privilege against self-incrimination does not protect an individual who testifies before
a non-governmental, self-regulatory organization—such as the New York Stock Exchange—and the SRO
provides information about that testimony to law enforcement agencies who then prosecute
the individual, even though the SRO has the power to suspend the individual from its membership.
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, are generally not considered to be
state actors. See United States v. Solomon, D. L. Cromwell Invs., Inc. v. NASD Regulation,
Inc., and Marchiano v. NASD, SROs also lack subpoena powers, so they rely heavily on requiring
testimony from individuals by wielding the threat of a bar from the industry when the
individual asserts his or her Fifth Amendment privilege against compelled self-incrimination.
Custodial interrogation 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.
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 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, the suspect had been interrogated continuously
for thirty-six hours under electric lights. In Haynes v. Washington, the Court held that
an “unfair and inherently coercive context” including a prolonged interrogation rendered
a confession inadmissible. Miranda v. Arizona was a landmark case involving
confessions. Ernesto Miranda had signed a statement confessing 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, 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”. In her concurring opinion Justice
O’Connor wrote that a suspect’s age may indeed “be relevant to the ‘custody’ inquiry”; 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”
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 5–4 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 criminal suspects must now unambiguously invoke their right to remain
silent. Unless and until the suspect actually states that they are relying on that right,
their subsequent voluntary statements can be used in court and police can continue to
interact with them. The mere act of remaining silent is, on its own, insufficient to imply
the suspect has invoked their rights. Furthermore, a voluntary reply even after lengthy silence
can be construed as implying a waiver. The Act of Production Doctrine
Under the Act of Production Doctrine, the act of an individual in producing documents
or materials 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 existence; custody; or authenticity, of the documents or materials
produced. See United States v. Hubbell. Refusal to testify in a criminal case
The Supreme Court ruled that the government cannot punish a criminal defendant for exercising
his right to silence, by allowing the prosecutor to ask the jury to draw an inference of guilt
from the defendant’s refusal to testify in his own defense. Griffin v. California, 380
U.S. 609. In Griffin, the Court overturned as unconstitutional under the federal constitution
a provision of the California state constitution that explicitly granted such power to prosecutors.
Refusal to testify in a civil case 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, “[A]s Mr. Justice Brandeis declared,
speaking for a unanimous court in the Tod case, ‘Silence is often evidence of the most
persuasive character.'” “‘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.'” 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.”
Federal income tax 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, 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.”
In Garner v. United States, 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.”
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”
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.” 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.” 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.” 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.” Grants of immunity
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, 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. Record keeping
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, 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, the court struck down the Marijuana Tax Act because its record
keeping statute required self-incrimination. In Haynes v. United States, 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. Computer passwords
Courts have given conflicting decisions on whether forced disclosure of computer passwords
is a violation of the Fifth Amendment. In In re Boucher, 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.
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. 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. 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.
Other 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.” 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. 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 before answering the questions, then the answers
cannot be used in criminal prosecution of the employee. This principle was developed
in Garrity v. New Jersey, 385 U.S. 493. The rule is most commonly applied to public employees
such as police officers. In Boyd v. United States, 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. 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.
Salinas v. Texas 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. 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 trial—regarding the defendant’s
silence in response to a question during the police interview—did not compel the defendant
to give self-incriminating testimony. 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.
Due process Takings clause
Eminent domain The Supreme Court has held that the federal
government and each state has the power of eminent domain—the power to take private
property for “public use”. The Takings Clause, the last clause of the Fifth Amendment, limits
the power of eminent domain by requiring that “just compensation” be paid if private property
is taken for public use. The just compensation provision of the Fifth Amendment did not originally
apply directly to the states, but since Chicago, B. & Q. Railroad Co. v. Chicago, federal courts
have held that the Fourteenth Amendment extended the effects of that provision to the states.
The federal courts, however, have shown much deference to the determinations of Congress,
and even more so to the determinations of the state legislatures, of what constitutes
“public use”. The property need not actually be used by the public; rather, it must be
used or disposed of in such a manner as to benefit the public welfare or public interest.
One exception that restrains the federal government is that the property must be used in exercise
of a government’s enumerated powers. The owner of the property that is taken by
the government must be justly compensated. When determining the amount that must be paid,
the government does not need to take into account any speculative schemes in which the
owner claims the property was intended to be used. Normally, the fair market value of
the property determines “just compensation”. If the property is taken before the payment
is made, interest accrues. The federal courts have not restrained state
and local governments from seizing privately owned land for private commercial development
on behalf of private developers. This was upheld on June 23, 2005, when the Supreme
Court issued its opinion in Kelo v. City of New London. This 5–4 decision remains controversial.
The majority opinion, by Justice Stevens, found that it was appropriate to defer to
the city’s decision that the development plan had a public purpose, saying that “the city
has carefully formulated a development plan that it believes will provide appreciable
benefits to the community, including, but not limited to, new jobs and increased tax
revenue.” Justice Kennedy’s concurring opinion observed that in this particular case the
development plan was not “of primary benefit to … the developer” and that if that was
the case the plan might have been impermissible. In the dissent, Justice Sandra Day O’Connor
argued that this decision would allow the rich to benefit at the expense of the poor,
asserting that “Any property may now be taken for the benefit of another private party,
but the fallout from this decision will not be random. The beneficiaries are likely to
be those citizens with disproportionate influence and power in the political process, including
large corporations and development firms.” She argued that the decision eliminates “any
distinction between private and public use of property—and thereby effectively delete[s]
the words ‘for public use’ from the Takings Clause of the Fifth Amendment”. A number of
states, in response to Kelo, have passed laws and/or state constitutional amendments which
make it more difficult for state governments to seize private land. Takings that are not
“for public use” are not directly covered by the doctrine, however such a taking might
violate due process rights under the Fourteenth amendment, or other applicable law.
The exercise of the police power of the state resulting in a taking of private property
was long held to be an exception to the requirement of government paying just compensation. However
the growing trend under the various state constitution’s taking clauses is to compensate
innocent third parties whose property was destroyed or “taken” as a result of police
action. “Just compensation”
The last two words of the amendment promise “just compensation” for takings by the government.
In United States v. 50 Acres of Land, the Supreme Court wrote that “The Court has repeatedly
held that just compensation normally is to be measured by “the market value of the property
at the time of the taking contemporaneously paid in money.” Olson v. United States, 292
U.S. 246 … Deviation from this measure of just compensation has been required only
“when market value has been too difficult to find, or when its application would result
in manifest injustice to owner or public.” United States v. Commodities Trading Corp.,
339 U.S. 121, 123. Equal liberty
The Due Process clause of the Fifth Amendment was relied upon by the Supreme Court in the
2013 case United States v. Windsor to overturn section 3 of the Defense of Marriage Act,
a provision that defined marriage as being only the legal union of one man and one woman
for purposes of various federal statutes and regulations.
See also United States constitutional criminal procedure
References Further reading
Amar, Akhil Reed; Lettow, Renée B.. “Fifth Amendment First Principles: The Self-Incrimination
Clause”. Michigan Law Review 93: 857–928. doi:10.2307/1289986. JSTOR 1289986. 
Davies, Thomas Y.. “Farther and Farther From the Original Fifth Amendment”. Tennessee Law
Review: 987–1045. Retrieved 2010-04-06.  Fifth Amendment with Annotations
External links CRS Annotated Constitution: Fifth Amendment
Privilege Against Self Incrimination by R. Carter Pittman, 1935
1954 essay on reasons for pleading the 5th by Howard Fast
5th Amendment at the Populist Party—news and essays related to the Fifth Amendment,
at the Populist Party of America Don’t Talk to the Police – Professor James
Duane of the Regent University School of Law Don’t Talk to the Police on YouTube – Officer
George Bruch from the Virginia Beach police department
How to Flex Your Rights During Police Encounters

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