If you ask someone what they think about the Fifth Amendment, most people will likely point out that it provides citizens a right against self-incrimination. However, besides the well-known “plead the Fifth” clause, the Fifth Amendment provides a number of other important privileges and protections including the right to a grand jury for capital offences, the right to due process, the right to fair compensation when the government takes your property and a prohibition against being prosecuted or punished twice for the same crime. The Fifth Amendment was one of the original ten amendments included in the Bill of Rights that was passed in 1791. Initially, the Constitution did not have a Bill of Rights, however, the deep distrust that many of the Founding Fathers had of an oppressive central government led to discussion and debate among them during the first Continental Congress. The main topic discussion was on finding the best way to ensure that the individual rights of the citizens were protected. These debates eventually led to drafting of the ten amendments that make up the Bill of Rights and limit the power of the state over individuals. Originally the Bill of Rights only applied to the federal government but with the passage of the Fourteenth Amendment, the Bill of Rights was made applicable to the states as well.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.
The modern grand jury is an impaneled group of citizens who are brought together to determine whether one accused of a serious crime should be charged or indicted. The rationale for the grand jury is that it allows a neutral party to determine whether a person should be charged with a crime. A grand jury does not, however, determine guilt or innocence. In a grand jury, the panel hears evidence that is presented by the government usually through a prosecutor. The grand jury can also obtain evidence on its own by subpoena or ordering the presentation of documents, physical evidence or witness testimony before the panel. After all evidence is heard, the grand jury will inform the court whether they have reasonable suspicion to believe that the accused committed the crime.
Grand juries have been around since the reign of King Henry II (Hoffmeister, 2008). At that time, King Henry empowered a certain number of people, or “grand jurors,” in each community to investigate crimes in their jurisdiction and report their findings “to the crown” who decide whether or not to file charges (Hoffmeister, 2008). Although these early grand jurors did not have official state authority, they were nonetheless heavily influenced by the state and often used as a tool of state control. The modern grand jury process began with the1681 Earl of Shaftesbury case (Liepold, 1995). Unlike prior grand juries that were heavily influenced by the state, the grand jury in the Shaftesbury case demanded that their investigation was convened without the involvement of the attorney general and be done in absolute secrecy (Liepold, 1995). For the grand jurors in the Shaftesbury case, they saw their duties as not only investigating whether a charge should be filed but also as protective force to protect the Earl from what they felt was an overzealous and perhaps unfounded prosecution by the Crown’s Court (Liepold, 1995). That idea that the grand jury could and should be a defender of the individual against accusations from the state was preserved in future grand juries. Eventually, grand juries made its way to America with the arrival of more English to the American colonies. As in England, early American colonists maintained the grand jury practice of using them to investigate accusations of criminal activity. Moreover, colonists also maintained the belief that the purpose of the grand jury was to “provide a shield against government oppression” and unjust laws (Hoffmeister, 2008). Accordingly, as the Founding Fathers gathered to debate drafting a new Constitution, inclusion of a right to grand juries had nearly unanimous support (Liepold, 1995).
For all its early support as the voice of the community and a protective bulwark standing solidly between the ordinary citizen and an” oppressive state, grand juries have never attained the esteem bestowed on the other Fifth Amendment rights (United States v. Dionisio, 1973). To be sure, it is one of the few rights that were not extended to the states in the Fourteenth Amendment. Moreover in the 1884 Hurtado v California case, the Supreme Court held that grand juries were not necessary for due process of the law. In this case, Hurtado was convicted of murder based on an information or list of accusation prepared by a prosecutor and filed with the court. In upholding Hurtado’s conviction, the Court held that his right to due process was not violated because any legal proceeding that protects liberty and justice is due process even in the absence of a grand jury indictment (Hurtado v. California, 1884).
Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.
The Fifth Amendment’s “double jeopardy” clause protects a person who has been convicted or acquitted of a crime from consecutive prosecutions of the same charge. One of the fundamental justifications for the double jeopardy clause is to save citizens from the emotional, psychological, physical and financial strains that would result from multiple court proceedings for questions that have already been answered. Supreme Court jurisprudence has determined that the double jeopardy clause prohibits: (1) a second trial on the same charge after a defendant is acquitted; (2) a second trial on the same charge after a defendant is convicted; and (3) the imposition of a new punishment once a final punishment has been imposed.
Double jeopardy, like the grand jury, has a long history dating back at least to Greek and Roman times (Rudstein, 2005). To be sure, in the 1959 case, Bartkus v. Illinois, Justice Black commenting on the principle underlying double jeopardy wrote that it “is one of the oldest ideas in western civilization” (Bartkus v. Illinois, 1959). Whatever, its origins, the principle of double jeopardy made its way into English legal practice around 1201 and eventually becoming “a universal maxim of the English common law” (Rudstein, 2005). Similar to the development of the grand jury practice, the principle of double jeopardy was introduced into the nascent American common law by English colonialist arriving in the American colonies. While the original Articles of Confederation did not provide a guarantee against double jeopardy, it was later added as part of the Fifth Amendment with the ratification of the Bill of Rights in 1791.
Originally, the double jeopardy provision only applied to federal cases. However, in the 1969 case, Benton v. Maryland, the Court held that it did apply to states through the Fourteenth Amendments Due Process Clause. In Benton, after being acquitted of larceny but convicted of burglary, Benton was given a new trial due to an unconstitutional defect in Maryland’s juror selection process. In the new trial Benton was found guilty of both larceny and burglary. In ruling for Benton, the Court held that his second trial constituted double jeopardy and that the larceny conviction was unconstitutional. However, since Maryland at the time did not have a rule barring double jeopardy, the Court found that the Fifth Amendment’s bar against double jeopardy applied to the states through the Fourteenth Amendment (Benton v. Maryland, 1969).
Initially double jeopardy only applied to adult criminal cases. However, in the 1975 case Breed v. Jones, the court extended the protection to juvenile charged in the juvenile justice system. In a unanimous decision written by Chief Justice Berger, the Court found that the transfer was a violation of the double jeopardy clause (Breed v. Jones, 1975). Moreover, the Court held that jeopardy starts as soon as a court can impose a punishment on a juvenile which normally happens when evidence is presented. Once jeopardy attaches, the juvenile court is barred from transferring the case to adult court to be heard for the same charge. According to the Court, punishment is not the target of the double jeopardy clause but rather the possibility of having, the respondent would have to commit his time, money and emotional well-being again to sit through a case that has already been determined, which to the Court seem useless and more importantly cruel to the respondent. Finally, the Court said that their ruling would rather help the process by ensuring that juvenile constitutional rights are effectively protected.
Nor shall be compelled in any criminal case to be a witness against himself.
Perhaps the most famous Fifth Amendment protection is the prohibition against self-incrimination. In essence, what the privilege does is allow an accused citizen to refuse giving testimony to the state if that testimony could be used against them in a current or future criminal prosecution. The rationale behind the privilege is confession or testimony obtained from the accused by way of torture or coercion is inherently unreliable and therefore useless in a determination of guilt or innocence. The protections provided privilege against self-incrimination covers both the accused as well witnesses in both criminal and civil cases.
Although the exact origin of the privilege is unclear, what is clear is that by the Middle Ages, the idea was firmly ingrained into English common law practice. To be sure, from 1487 to 1641, the ecclesiastical Courts of Star Chamber were a common phenomenon of the English legal system (Levy, 1999). It was common practice in these courts for the state to apprehend the accused without warning and force them to answer its question without the right to refuse participation. Moreover, once the state acquired enough evidence against the accused, (much of it supplied by the accused himself) the state would prosecute using the aforementioned evidence against the witness. If an accused refused to speak, his refusal was deemed a confession of guilt. Pressure against the Star Chamber inquisitions and their procedures eventually lead to their abolishment and the establishment of nemo tenetur or the right to silence (Levy, 1999). Nemo Tenetur refers to the right for the accused not to be compelled to be a witness against himself (Levy, 1999). Eventually nemo tenetur lead to a prohibition against testimony or a confession coerced by the state.
As with many English legal practices and traditions, the right to silence made its way into the American legal system via the heavy English influence in the American colonies. Indeed, the right to silence was incorporated into the laws of many of the original colonies. Accordingly, the right to be silent was accepted “without debate into the Bill of Rights” (Levy, 1999). Since the ratification of the Bill of Rights, the Supreme Court has refined the scope of the right as it applies to American constitutional jurisprudence.
Perhaps the most well-known self-incrimination case is Miranda v. Arizona. In Miranda, after reports of a rape, police arrested Miranda because he fit the description of the culprit and had a criminal history that included a charge of rape. Without informing him of his right to silence, police interrogated Miranda for two hours before he finally confessed to the rape. In overturning Miranda’s conviction the Court found that custodial police interrogations are inherently compulsive (Miranda v. Arizona, 1966). Moreover the Court held that coercion is both the product of physical force or threat of force as well police psychological manipulation and intimidation. Consequently, without some method of effectively removing the hostile atmosphere that is a police interrogation, they will be excluded from court. Testimony will be allowed if the accused is informed prior to interrogation that: (1) he has the right to remain silent; (2) that anything he says can and will be used against him; (3) that he has a right to consult an attorney; (4) that if he cannot afford an attorney one would be provided for him free of charge; and (5) that he has the right to terminate his interrogation at any time (Miranda v. Arizona, 1966).
Nor be deprived of life, liberty or property without due process of law.
While short in length, the Due Process Clause is arguably the gateway privilege for the other rights guaranteed not only by the Fifth Amendment but several amendments of the Bill of Right as well. In short, the Due Process Clause requires the state to honor most of the rights that are guaranteed to the people by the Constitution and relevant statues before it deprives them of “life, liberty and property.” The justification for the privilege to enjoy the due process of the law is that in a just society, anyone accused of a crime and subject to imprisonment should be guaranteed an impartial, systematic and unbiased judicial proceeding (Kemp, 1958) This “due process” includes such legal instruments and mechanisms as indictments, public trials and the right to confront witnesses.
Over the years, Supreme Court jurisprudence has come to recognize two forms of due process, namely procedural due process and substantive due process. Procedural due process refers to fair and transparent legal procedures as mentioned. Procedural due process is applicable whenever a citizen is subject to a deprivation of liberty (a significant freedom provided by the Constitution of a statute) or a deprivation of property. The Court has not specified what type of process is required in the event of a deprivation but has held that whatever process is required depends on a balancing of the importance of the liberty or property; the value of the specific procedural safeguard and the state’s interest in efficiency. On the other hand, substantive due process refers to the right of all citizens to enjoy certain fundamental liberties without unreasonable state interference.
Nor shall private property be taken for public use without just compensation.
Perhaps the least well known and understood Fifth Amendment protection is the requirement that the state pay just compensation to owners whose private property is “taken” by the government for public use. Under the Takings Clause, the state has the right to take private property for use but it also required to reimburse the owner for its use. The Supreme Court has held that just compensation is defined at the fair market value of the property. Furthermore, when a “taking” occurs, the state must either pay the owner the fair market value or terminate the taking and pay the owner for any damages that occurred during the taking.
The Takings Clause, unlike the other protections of the Fifth Amendment, is not based on ancient English law. On the contrary, in Old England, state takings of private property happened frequently and were justified as a vestigial right retained by the king in originally granting the land to the common people (Treanor, 1985).
James Madison, one of the key authors of the Fifth Amendment, was very protective of private property (Treanor, 1985). Madison felt that the new nation needed strong safeguards for property rights in particular (Treanor, 1985). Accordingly, in drafting the Amendment, Madison incorporated the Takings Clause into the amendment as both a safeguard for property rights against state abuse and as a signal that private property was sacrosanct (Treanor, 1985). It was Madison’s belief that having a Takings Clause would make the government think twice before “physically taking” a citizens property. Moreover, he hoped that it would educate people to refrain from “enacting laws favoring debtors, imposing unequal taxes, or producing cheap money in order to undermine the position of creditors” (Treanor, 1985).
While Madison originally envisioned the Takings Clause to be applicable only to physical appropriations of private property, in the 1984 case Ruckelshaus v. Monsanto, the Court held that a taking can include any government action that damages or impairs property even if the property is intangible such as with intellectual property (Ruckelshaus v. Monsanto, 1984).
In conclusion, the five clauses of the Fifth Amendment provide important and necessary safeguards no only to the criminally accused but to any citizen that confronts the state in a legal proceeding. While most people, can easily point to the Fifth Amendment’s prohibition against self-incrimination, its other four clauses are just as vital and essential to limiting state power in a number of ways.
References
Bartkus v. Illinois, 359 US 121 (1959).Legal Information Institute-Cornell Law School. Retrieved on September 27, 2014, from http://www.law.cornell.edu/supremecourt/text/359/121
Benton v. Maryland 395 US 784 (1969). Legal Information Institute-Cornell Law School. Retrieved on September 27, 2014, from http://www.law.cornell.edu/supremecourt/text/395/784
Breed v. Jones, 421 U.S. 519 (1975). Retrieved on October 1, 2014, from https://supreme.justia.com/cases/federal/us/421/519/case.html
Hoffmeister, T. (2008). The Grand Jury Legal Advisor: Resurrecting the Grand Jury’s Shield. Retrieved on October 1, 2014, from http://scholarlycommons.law.northwestern.edu/jclc
Hurtado v. California 110 US 516 (1884). Legal Information Institute-Cornell Law School. Retrieved on September 27, 2014, from http://www.law.cornell.edu/supremecourt/text/110/516
Kemp, J.A. (1958). The Background of the Fifth Amendment in English Law: A Study of its Historical Implications. Retrieved on October 1, 2014, from http://scholarship.law.wm.wdu/wmlr
Liepold, A.D. (1995.). Why Grand Juries Do Not (and Cannot) Protect the Accused. Retrieved on October 1, 2014, from http://scholarship.law.cornell.edu/clr
Levy, L.W. (1999). Origins of the Fifth Amendment: The Right against Self-Incrimination. Lanham, MD: Ivan R Dee Publisher.
Miranda v. Arizona, 384 U.S. 436 (1966). Legal Information Institute-Cornell Law School. Retrieved on September 27, 2014, from http://www.law.cornell.edu/supremecourt/text/384/436
Ruckelshaus v. Monsanto, 467 US 986 (1984). Legal Information Institute-Cornell Law School. Retrieved on September 27, 2014, from http://www.law.cornell.edu/supremecourt/text/467/986
Rudstein, D.S. (2005). A Brief History of the Fifth Amendment Guarantee against Double Jeopardy. Retrieved on October 1, 2014, from http://scholarship.law.wm.edu/wmborj
Treanor, W.M. (1985). The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment. Retrieved on October 1, 2014, from http://scholarship.law.georgetown.edu/facpub/1051
Exclusionary Rule: United States v. Dionisio, 410 US 1 (1973), United States v. Mara, 410 US 9 (1973). Retrieved on October 1, 2014, from http://scholarlycommons.law.northwestern.edu/jclc
