Fifth Amendment to the United States Constitution

Fifth Amendment to the United States Constitution
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The Fifth Amendment (Amendment V) to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215. For instance, grand juries and the phrase due process (also found in the 14th Amendment) both trace their origin to the Magna Carta.




Grand jury

The Bill of Rights in the National Archives.

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 do not apply during grand jury proceedings. For example, the exclusionary rule does not apply to 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.[2] Also, defendants do not have the right to have their attorneys present in grand jury rooms during hearings; they would normally have such a right during questioning by the police while in custody. The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment; in other words, it has not been ruled applicable to the states. States are free to abolish grand juries, and many (though not all) have replaced them with preliminary hearings.[3]

Whether a crime is "infamous" is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed;[4] however, crimes punishable by death must be tried upon indictments. In United States v. Moreland, 258 U.S. 433 (1922), the Supreme Court held that incarceration in a prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime. Currently, federal law permits the trial of misdemeanors without indictments.[5] 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 (1887), the Supreme Court held that the indictment could not be changed at all by the prosecution. United States v. Miller, 471 U.S. 130 (1985) 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 (1969), 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 with indictments.[6]

Double jeopardy

The fifth amendment refers to being put in "jeopardy of life or limb." The clause, however, has been interpreted as providing protection regarding "every indictment or information charging a party with a known and defined crime or misdemeanor." The clause, it has been held, does not prevent separate trials by different governments, and the state and federal governments are considered "separate sovereigns". Therefore, one may be prosecuted for a crime in a state court, and prosecuted for the same crime in another state, a foreign country, or (most commonly) in a federal court.

Once acquitted, a defendant may not be retried for the same offense: "A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense."[7] Acquittal by a jury is generally final and cannot be appealed by the prosecution.[8] An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution.[9] A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, the judge's determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated. Additionally, although a judge may overrule a guilty verdict by a jury, he or she does not have the same power to overrule a not guilty verdict.

Defendants may not be retried following conviction except in limited circumstances when the judge sees fit and proper. Bribing a judge to get an acquittal is not valid because the party acquitted has prevented themselves from being placed into "jeopardy" to begin with.[10] If a defendant appeals a conviction and is successful in having it overturned, they are subject to retrial. An exception arises if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in Burks v. United States 437 U.S. 1, (1978), the Court held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient."[11] Another exception arises in cases of conviction for lesser offenses. If a defendant charged with murder in the first degree is convicted for murder in the second degree, and later the jury's conviction is overturned on procedural grounds, the defendant may be retried for second degree but not first degree murder; the jury, by convicting the defendant of second degree murder, is deemed to have implicitly acquitted them of first degree murder.

The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed by the courts. Sentence increases may not, however, be made once the defendant has already begun serving his term of imprisonment. If a defendant's conviction is overturned on procedural grounds, the retrial may result in a harsher penalty than the original trial. The only exception is that the prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.


Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in United States v. Josef Perez, 22 U.S. 579 (1824). When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."

Defendants may not more than once be placed in jeopardy for the "same offense". Sometimes, however, the same conduct may violate different statutes. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not".[12] For example, the test was applied in Brown v. Ohio, 432 U.S. 161 (1977). The defendant had first been convicted of operating an automobile without the owner's consent, and later of stealing the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.

In other cases, the same conduct may constitute multiple offenses under the same statute, for instance where one robs many individuals at the same time. There is no explicit bar to separate prosecutions for different offenses arising under the same "criminal transaction", but it is not permissible for the prosecution to re-litigate facts already determined by a jury. In Ashe v. Swenson, 397 U.S. 436 (1970), the defendant was accused of robbing seven poker players during a game. John Ashe was first tried for, and acquitted of, robbing only one of the players; the defense did not contest that a robbery actually took place. The state then tried the defendant for robbing the second player; stronger identification evidence led to a conviction. The Supreme Court, however, overturned the conviction. It was held that in the first trial, since the defense had not presented any evidence that there was no robbery, the jury's acquittal had to be based on the conclusion that the defendant's alibi was valid. Since one jury had held that the defendant was not present at the crime scene, the State could not re-litigate the issue.


The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties or forfeiture.[13]

Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions.[14][15]

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.[16] Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was considered guilty.[16] 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 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.

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."[17]

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 right against self-incrimination applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court,[18], and whether the proceeding itself is criminal or civil.[19]

The right 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 (R-Wisc.) 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 right against self-incrimination does not apply when an individual testifies before a self-regulatory organization (SRO). SROs, such as the National Association of Securities Dealers (NASD), are generally not considered as state actors subject to the restraints of the fifth amendment. Department of Enforcement, United States v. Solomon, 509 F. 2d 863 (2d Cir. 1975); D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., 132 F. Supp. 2d 248, 251-53 (S.D.N.Y. 2001), aff'd, 279 F.3d 155, 162 (2d Cir. 2002), cert. denied, 537 U.S. 1028 (2002); Marchiano v. NASD, 134 F. Supp. 2d 90, 95 (D.D.C. 2001). SROs also lack subpoena powers, so they rely heavily on requiring testimony from individuals while wielding the threat of a bar from the industry (permanent, if decided by the NASD) in the case of noncompliance.

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. In 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. However, the use of brutal torture to extract confessions was routine in some rural states as late as the 1930s, and stopped only after the Supreme Court kept overruling convictions based on such confessions, in cases like Brown v. Mississippi, 297 U.S. 278 (1936).

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 (1940) 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 (1944), the suspect had been interrogated continuously for thirty-six hours under electric lights. In Haynes v. Washington (1963) the Court held that an "unfair and inherently coercive context" including a prolonged interrogation rendered a confession inadmissible.

Miranda v. Arizona (1966) 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 warned 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.

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 nor is it required. Traffic stops are not deemed custodial. The Court has ruled that age can be an objective factor. In Yarborough v. Alvarado (2004), 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"[20]. In her concurring opinion Justice O'Connor wrote that a suspect's age may indeed "be relevant to the 'custody' inquiry"[21]; 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"[20]

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.

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 she is relying on that right, her subsequent voluntary statements can be used in court and police can continue to interact with (or question) her. The mere act of remaining silent is, on its own, insufficient to imply the suspect has invoked her rights. Furthermore, a voluntary reply even after lengthy silence can be construed as implying a waiver.

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 (1965). 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 that right, there are consequences to the assertion of the Fifth Amendment in a civil 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, 425 U.S. 308, 318 (1976). “[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, ‘Silence is often evidence of the most persuasive character.’” Id. at 319 (quoting United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-154 (1923)). “‘Failure to contest an considered evidence of acquiescence...if it would have been natural under the circumstances to object to the assertion in question.’” Id. (quoting United States v. Hale, 422 U.S. 171, 176 (1975)).

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 US 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."[22]

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, 274 U.S. 259 (1927), 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."[23]

In Garner v. United States, 424 U.S. 648 (1976) 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."[24]

Sullivan and Garner are viewed by some legal scholars 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" (instead of "illegal gambling income," "illegal drug sales," etc.)[citation needed]

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, 406 U.S. 441 (1972), 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, 382 U.S. 70 (1965) 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 Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965), 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, 395 U.S. 6 (1969) the court struck down the Marijuana Tax Act because its record keeping statute required self-incrimination.

In Haynes v. United States, 390 U.S. 85 (1968) 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.


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."[25] 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.[26] 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 (sometimes called the Garrity Warning or Garrity Rights) before answering the questions, then the answers cannot be used in criminal prosecution of the employee.[citation needed] This principle was developed in Garrity v. New Jersey, 385 US 493 (1967). The rule is most commonly applied to public employees such as police officers.

In In re Boucher (2009), 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.[27]

In Boyd v. United States 116 US 616 (1886) the US 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 a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.[28] 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 5th Amendment rights. Ironically, suspects must literally open their mouths and 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 their right to remain silent.

Due process clause

The fifth amendment prevents individuals from being deprived of life, liberty, or property without "due process of law." Due process extends to all persons and corporate entities. The Fourteenth Amendment explicitly binds the states with due process protections, through selective incorporation. Fifth Amendment due process protection has not always been granted to corporations, but was first applied to corporations in 1893 by the Supreme Court in Noble v. Union River Logging.[29] This was not long after the Supreme Court first granted 14th Amendment protection to corporations in Santa Clara County v. Southern Pacific Railroad in 1886.

The fifth amendment applies to the federal government (see Barron v. Baltimore), and the Fourteenth Amendment, by its own terms, applies against the States. While the fifth amendment includes a due process clause, it does not include—as the fourteenth amendment does—an equal protection clause. However, in Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court averred that it was absurd that the Constitution could deny the states the power to abridge equal protection of the laws, yet permit that power to the Congress. "[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive," reasoned Chief Justice Earl Warren. The Court thus interpreted the fifth amendment's due process clause to include an equal protection element but has continued to hold that there is a difference between due process and equal protection in its fourteenth amendment jurisprudence.

There is debate over whether or not the Obama administration violated this clause by assassinating Anwar al-Awlaki and Samir Khan[30][31][32].

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 (1897), 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 that the owner claims the property was intended for use in. Normally, the fair market value of the property determines "just compensation". If the property is taken before the payment is made, interest accrues (though the courts have refrained from using the term "interest").

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,[33] 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.[34]

"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 (1984), 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 (1934) ... 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 (1950).


  1. ^ Cornell University Law School. "Bill of Rights from Cornell University Law School". Retrieved 2007-12-16. 
  2. ^ United States v. Calandra, 414 U.S. 338 (1974)
  3. ^ Hurtado v. California, 110 U.S. 517 (1884)
  4. ^ Ex parte Wilson, 114 U.S. 417 (1885)
  5. ^ Duke v. United States, 301 U.S. 492 (1937)
  6. ^ Solario v. United States, 483 U.S. 435 (1987)
  7. ^ Ball v. United States, 163 U.S. 662 at 642 (1896)
  8. ^ Fong Foo v. United States, 369 U.S. 141 (1962)
  9. ^ United States v. Jenkins, 420 U.S. 358 (1975)
  10. ^ Harry Aleman v. Judges of Circuit Court, Cook County, 138 F.3d 302 (7th Cir. 198)
  11. ^ Burks, at 11
  12. ^ Blockburger, at 304
  13. ^ Counselman v. Hitchcock, 142 U.S. 547 (1892)
  14. ^ Amar, Akhil Reed (1998). The Bill of Rights. New Haven: Yale University Press. pp. 84. ISBN 0300082770. 
  15. ^ Amar, Akhil Reed (2005). America's Constitution. New York: Random House. pp. 329. ISBN 1400062624. 
  16. ^ a b Greaves, Richard L. (1981). "Legal Problems". Society and religion in Elizabethan England. Minneapolis, Minnesota: University of Minnesota Press. pp. 649, 681. ISBN 0816610304. OCLC 7278140. Retrieved 19 July 2009. "This situation worsened in the 1580s and 1590s when the machinery of ... the High Commission, was turned against Puritans ... in which a key weapon was the oath ex officio mero, with its capacity for self incrimination ... Refusal to take this oath usually was regarded as proof of guilt." 
  17. ^ Ohio v. Reiner, 532 U.S. 17 (2001).
  18. ^ Michael J. Z. Mannheimer, "Ripeness of Self-Incrimination Clause Disputes," Journal of Criminal Law and Criminology, Vol. 95, No. 4, p. 1261, footnote 1 (Northwestern Univ. School of Law 2005), citing Malloy v. Hogan, 378 U.S. 1 (1964)).
  19. ^ McCarthy v. Arndstein, 266 U.S. 34 (1924)).
  20. ^ a b J.D.B. v. North Carolina, "United States Supreme Court", June 16 2011, accessed June 20th, 2011.
  21. ^ Yarborough v. Alvarado, "United States Supreme Court", June 1 2004, accessed June 20th, 2011.
  22. ^ Boyd v. United States
  23. ^ United States v. Sullivan, 274 U.S. 259 (1927).
  24. ^ Garner v. United States, 424 U.S. 648 (1976).
  25. ^ U.S. v. Kordel, 397 U.S. 1 (1970).
  26. ^ Braswell v. U.S., 487 U.S. 99 (1988).
  27. ^ In re Grand Jury Subpoena to Sebastien Boucher, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb 19, 2009).
  28. ^
  29. ^ Noble v. Union River Logging, 147 U.S. 165 (1893)
  30. ^
  31. ^
  32. ^
  33. ^ See Berman v. Parker.
  34. ^ Wegner v.Milwaukee Mutual, City of Minneapolis 479 N.W.2d 38 (Minn. 1991) and Steele v. City of Houston 603 S.W.2d 786 (1980)

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