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Having successfully won their independence from a British monarchy and Parliament that they had accused of being undemocratic and tyrannical, the Framers of the federal Constitution had a strong mistrust of large, centralized governments. The Framers drafted the Bill of Rights, consisting of the Constitution's first ten amendments, to serve as a bulwark delineating a range of individual freedoms and thus protecting them from governmental abuse. Laws enacted, implemented, or enforced by governmental officials that infringe on these freedoms are typically invalidated as unconstitutional by the judiciary.
The Fifth Amendment to the U.S. Constitution enumerates five distinct individual freedoms: (1) the right to be indicted by an impartial grand jury before being tried for a federal criminal offense; (2) the right to be free from multiple prosecutions or multiple punishments for a single criminal offense; (3) the right to have individual freedoms protected by due process of law; (4) the right to be free from government compelled self-incrimination; and (5) the right to receive just compensation when the government takes private property for public use.
The text of the Fifth Amendment reads as follows: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence [sic] 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."
Because the Framers hoped that the Constitution would be an enduring document, they generally avoided using specific language that one might find in a code or a regulation. Instead of specifying particular instances of prohibited governmental conduct in the Bill of Rights, the Framers established broad principles that government officials must take into account before encroaching on individual freedoms.
In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the U.S. Supreme Court, per Chief Justice John Marshall, ruled that the ultimate authority for determining the Constitution's meaning lay with the judicial branch of government through the power of judicial review. Pursuant to this power, courts are authorized to review laws enacted by government officials and invalidate those that violate the Constitution.
As originally ratified it was unclear whether the Fifth Amendment applied only against action taken by the federal government or if it also protected freedoms from state governmental abuse. The Supreme Court in Barron v. City of Baltimore, 32 U.S. 243 (1833) ruled that the Fifth Amendment did not apply to the states.
This judgment settled the question until the Fourteenth Amendment was ratified in 1868. It guaranteed the citizens of every state the right to equal protection of the laws and the right to due process of law. Following ratification of the Fourteenth Amendment, the Supreme Court began making individual freedoms enumerated in the Bill of Rights applicable to the states via the doctrine of incorporation. Under this doctrine, the Court explained through a series of cases that no state may deny any citizen a fundamental liberty without violating the Fourteenth Amendment's Equal Protection and Due Process clauses. The Court has ruled that these fundamental liberties include every liberty set forth in the Bill of Rights, except the Second Amendment's right to bear arms, the Third Amendment's right against quartering soldiers, the Seventh Amendment's right to trial by jury in civil cases, and the Fifth Amendment's right to indictment by grand jury.
The Fifth Amendment guarantees every person charged with a federal crime the right to be indicted by a grand jury. A grand jury is a group of citizens summoned to criminal court by a law enforcement official to decide whether it is appropriate to indict someone suspected of a crime. Although the right to a grand jury is mandated at the federal level by the U.S. Constitution, about one-third of the state constitutions also require indictment by grand jury for more serious violations of state laws.
Federal grand juries may consist of between 16 and 23 citizens chosen from lists of qualified state residents of legal age, who have not been convicted of a crime, and are not biased against the subject of the investigation. Grand jury proceedings begin with the prosecutor's presenting a bill of indictment, which is a list explaining the case and possible charges. The prosecutor then presents evidence to the grand jurors in the form of exhibits, written documents, and oral testimony by witnesses.
Grand jurors are given wide latitude to inquire about the criminal charges and may compel the production of documents and records and subpoena witnesses, including the suspect under investigation. They may also question witnesses to satisfy themselves that the evidence is credible and reliable. Unlike at trial, hearsay evidence is admissible before grand juries. But like at trial, witnesses who refuse to answer questions may be held in contempt and incarcerated until they provide answers, unless the question requires disclosure of information that might tend to incriminate the witness. The Fifth Amendment's privilege against self-incrimination may be successfully asserted during grand jury proceedings.
Grand juries are accusatory bodies, and prosecutors have no obligation to present exculpatory evidence or testimony that impeaches their witnesses. Nor do suspects enjoy an absolute right to appear before a grand jury to present their case. Suspects may appear before a grand jury with permission of the prosecutor or upon order by subpoena. Despite the prosecutor's partisan role as the government official in charge of obtaining an indictment against the accused, the prosecutor may not compromise the grand jury's function of standing between the accused and a hasty, malicious, oppressive, or corrupt prosecution (see Wood v. Georgia, 370 U.S. 375 [1962]). Prosecutors, for example, are prohibited from presenting false information to a grand jury, and convictions stemming from an indictment based on false information are overturned on appeal. Prosecutors are also prohibited from pressuring grand jurors to "rubber stamp" an indictment (see United States v. Sigma Intern., Inc., 244 F.3d 841 [11th Cir. 2001]).
If a majority of grand jury members agree that there is sufficient reason to charge the suspect with a crime, they return an indictment carrying the words, "true bill." But if a majority of grand jurors determine that there is insufficient evidence to go
The Double Jeopardy Clause of the Fifth Amendment prohibits the government from prosecuting a defendant more than one time for a single offense or imposing more than one punishment for a single offense. Only certain types of legal proceedings invoke double jeopardy protection. If a particular proceeding does not place an individual in "jeopardy," then subsequent proceedings or punishments against that individual for the same conduct are not prohibited by this clause.
The text of the Fifth Amendment suggests that the protection against double jeopardy extends only to proceedings that threaten "life or limb." However, the Supreme Court has extended the right against double jeopardy beyond capital crimes and corporeal punishments to all felonies, misdemeanors, and juvenile delinquency adjudications, regardless of the punishments they prescribe. At the same time, the Supreme Court has ruled that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude a private litigant from initiating a civil proceeding against a defendant who has already been prosecuted for a crime, which explains why O.J. Simpson could be sued in civil court by the surviving family members of Ronald Goldman and Nicole Brown Simpson after he was acquitted in criminal court of murdering them.
A crucial question in any double jeopardy analysis is when jeopardy is said to have "attached." In other words, courts must decide at what point during a criminal prosecution a defendant's right against subsequent prosecution and multiple punishments began. Actions taken by the government before jeopardy attaches, such as dismissing an indictment, will not prevent later proceedings against a person for the same offense. Conversely, once jeopardy has attached, the full panoply of protections against subsequent prosecution and multiple punishments takes hold.
The Supreme Court has ruled that jeopardy attaches during a jury trial when the jury is sworn. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn. Jeopardy attaches in juvenile proceedings when the court first hears evidence. If the defendant or juvenile enters a plea agreement, jeopardy does not attach until the plea is accepted.
Determining when jeopardy terminates is no less important. Once jeopardy has terminated, the government cannot hail someone into court for additional criminal proceedings without raising double jeopardy questions. If jeopardy does not terminate at the conclusion of one proceeding, it is deemed to be continuing, and further criminal proceedings are permitted. Jeopardy can terminate in four instances: (1) after an acquittal; (2) after a dismissal of a charge; (3) after a mistrial that was not caused by the defendant; or (4) on appeal after a conviction.
The final question courts must resolve in double jeopardy litigation is whether successive prosecutions or punishments are for the same offense. Jeopardy may have already attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. The U.S. Supreme Court has ruled that the government is allowed to prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact that the other offenses do not (see Blockburger v. United States, 284 U.S. 299 [1932]). Depending on the circumstances surrounding the single course of conduct, the Court has adopted various other tests in resolving this question and has allowed lower federal and state courts to do the same.
The Fifth Amendment's Due Process Clause has two prongs, one procedural and one substantive. Procedural due process encompasses the process by which legal proceedings are conducted. It requires that all persons who are materially affected by a legal proceeding receive notice of its time, place, and subject matter so that they have an adequate opportunity to prepare. It also requires that legal proceedings be conducted in a fair manner by an impartial judge who will allow the interested parties to fully present their complaints, grievances, and defenses. The procedural prong of the Due Process Clause governs civil, criminal, and administrative proceedings from the pretrial stage through final appeal, and proceedings that produce arbitrary or capricious results will be overturned as unconstitutional.
Substantive due process encompasses the content or substance of particular laws applied during legal proceedings. Before World War II, the U.S. Supreme Court relied on substantive due process to overturn legislation that infringed on a variety of property interests, including the right of employers
However, the line separating procedure from substance is not always clear. For example, procedural due process guarantees criminal defendants the right to a fair trial, while substantive due process specifies that twelve jurors must return a unanimous guilty verdict before the death penalty can be imposed. The line is further blurred by judges and lawyers who simply refer to both prongs as "due process," without any express indication as to whether they mean substantive or procedural.
The Fifth Amendment's right against self-incrimination permits individuals to refuse to answer questions or disclose information that could be used against them in a criminal prosecution. The purpose of this right is to inhibit the government from compelling a confession through force, coercion, or deception. Confessions produced by these methods are deemed unreliable because they are often involuntary, unwitting, or the result of the accused's desire to avoid further browbeating rather than being the product of candor or a desire to confess.
The Self-Incrimination Clause applies to every type of legal proceeding, whether it is civil, criminal, or administrative in nature. Traditionally, the privilege against self-incrimination was most frequently asserted during the trial phase of legal proceedings, where individuals are placed under oath and asked questions on the witness stand. However, in the twentieth century application of the privilege was extended to the pretrial stages of legal proceedings as well. In civil cases, for example, the right against self-incrimination may be asserted when potentially incriminating questions are posed in depositions and interrogatories.
In criminal proceedings, the U.S. Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966) established the rules under which the Self-Incrimination Clause applies to proceedings before trial. In Miranda, the Court held that any statements made by a defendant while in police custody will be inadmissible during prosecution unless the police first warn the defendants that they have (1) the right to remain silent; (2) the right to consult an attorney before being questioned by the police; (3) the right to have an attorney present during police questioning; (4) the right to a court appointed attorney if the defendant cannot afford to hire a private attorney; and (5) the right to be informed that any statements they make can and will be used against them at trial.
The Miranda case acknowledged that these warnings were not expressly mentioned anywhere in the text of the federal Constitution. However, the Court concluded that the warnings constituted an essential part of a judicially created buffer zone that is necessary to protect rights that throughout the Bill of Rights are expressly afforded to criminal defendants. Thus, if a defendant confesses to a crime or makes an otherwise incriminating statement to the police, that statement will be generally excluded from trial unless the defendant was first read the Miranda warnings.
Because of its lack of textual support in the federal Constitution, legal observers have long predicted the demise of Miranda. Much of this speculation has been fueled by subsequent cases in which the Supreme Court carved out exceptions to Miranda. For example, the Court ruled that when a defendant makes an un-Mirandized incriminating statement followed by a later Mirandized confession, the subsequent confession should not be excluded from trial(see Oregon v. Elstad, 470 U.S. 298 [1985]). However, law enforcement officials cannot completely ignore the requirement of Miranda warnings. In 2004, the Court reviewed a case in which officers interrogated a suspect for 30 to 40 minutes without Miranda warnings, eliciting a confession during the process. Once the suspect confessed, the officers gave the Miranda warnings and then led the suspect to give the same account for a second time. In this instance, the Court determined that the confession was involuntary and that this practice violated Miranda. (Missouri v. Seibert, 542 U.S. 600 [2004]).
When the government takes someone's property for public use, the law calls it a "taking." The Fifth Amendment permits the government to appropriate private property for public use so long as the property owner receives just compensation. The Fifth Amendment allows for governmental appropriation of either real estate or personal property, and the just-compensation provision applies to both kinds of takings. In most eminent domain proceedings, just compensation is normally equated with the fair market value of the property appropriated.
The Supreme Court in 2005 sparked a national debate regarding the use of eminent domain in the decision in Kelo v. City of New London, 125 S. Ct. 2655 (2005). In Kelo, the City of New London, Connecticut condemned privately-owned properties so that the land could be used as part of a private development plan. Even though the property would be owned by private entities and used for private purposes, the development plan would increase taxes and create new jobs. These and similar reasons led the Court to decide that the city condemnation of the property constituted a "public use," thus permitting the city to take the land.
Many members of the public criticized the decision. Several state legislators responded within a few months by introducing bills that would effectively negate the decision in Kelo. The state proposals appeared in several different forms. Some states sought to limit the type of uses of private property could be considered "public uses." Other states considered legislation that would prohibit the use of eminent domain for certain uses, such as private economic development projects.
The federal constitution and the Supreme Court cases interpreting it establish the minimum amount of protection that a state court must provide when applying a provision of the Bill of Rights to a pending controversy. The same holds true for the four clauses of the Fifth Amendment that have been made applicable to the states through the doctrine of incorporation. However, a state constitution or a state court interpreting the state constitution may provide more protection than is afforded by the federal constitution but not less. Below is a sampling of cases decided in part based on state courts' interpretation of the federal constitution, its own state constitution, or both. Also included are summaries of legislation and constitutional amendments pertaining to eminent domain following the U.S. Supreme Court's decision in Kelo v. City of New London.
ALABAMA: In 2005, the state enacted legislation that prohibits use of eminent domain for certain projects, such as commercial development or development for purposes of raising tax revenues.
ARKANSAS: The Due Process Clause in the Arkansas Constitution did not disqualify a trial judge from presiding over a prosecution against the defendant, notwithstanding the defendant's claim of potential judicial bias from judge's service as prosecuting attorney in a former case (see Green v. State, 729 S.W.2d 17 [Ark. App. 1987]).
ARIZONA: If a mistrial is granted as a result of conduct that the prosecutor knew or should have known would prejudice the defendant and the prejudice cannot be cured short of declaring a mistrial, the double jeopardy clause of state constitution bars retrial (see Beijer v. Adams ex rel. County of Coconino, 993 P.2d 1043 [Ariz. App. 1999]).
CALIFORNIA: The California grandparent visitation statute violated the Due Process Clause of both the state and federal constitutions as applied to a mother, who opposed visitation between her child and paternal grandparents, after the trial court failed to apply the statutory presumption that the mother would act in her child's best interests (see In re Marriage of Harris, 2001 WL 1113062 [Cal. App. 2001.]).
DELAWARE: The state in 2005 enacted legislation that limits application of eminent domain to recognized public uses.
FLORIDA: For a criminal statute to withstand a void-for-vagueness challenge under both the federal and state Due Process Clauses, the language of the statute must provide adequate notice of the conduct it prohibits when measured by common understanding and practice, and the statute must define the offense in a manner that does not encourage arbitrary and discriminatory enforcement (see State v. Brake, 2001 WL 1095088 [Fla. 2001]).
GEORGIA: Routine collection of a suspect's signature on a fingerprint card while booking the suspect into jail, even in the absence of Miranda warnings, does not constitute compelled self-incrimination in violation of the state constitution (see Thomas v. State, 549 S.E.2d 359 [Ga. 2001]).
ILLINOIS: The privilege against self-incrimination that is applicable in criminal cases under the Illinois constitution applies to probation revocation proceedings, since a defendant's testimony may subject him to fine or incarceration if probation is revoked (see People v. McNairy, 721 N.E.2d 1200 [Ill. App. 1999]).
MASSACHUSETTS: A Due Process violation did not occur under the Massachusetts Constitution based on a prisoner's transfer to another prison, the deprivation of the prisoner's canteen privileges, or the loss of the privilege to attend resident council meetings, since the transfer did not implicate a liberty interest, and the other two claims involved privi-
MICHIGAN: Convictions for both being a felon in possession of a firearm and possessing a firearm during the commission of a felony did not violate the Double Jeopardy Clause of the Michigan Constitution, since the words of the felony-firearm statute made it clear that the legislature's intent was to provide for an additional felony charge and sentence whenever the person possessing the firearm also committed the felony, and the statutes setting forth those offenses fulfilled distinct purposes that addressed different social norms (see People v. Dillard, 631 N.W.2d 755 [Mich. App. 2001]).
MINNESOTA: Taxpayers who were sent three notices concerning their property tax before the property taxes became due and who could have used a variety of statutory means to challenge the taxes received constitutionally sufficient Due Process under both the state and federal constitutions (see Programmed Land, Inc. v. O'Connor, 633 N.W.2d 517 [Minn. 2001]).
MISSOURI: A Missouri statute giving any party to a custody or visitation proceeding only one opportunity to disqualify a guardian ad litem (GAL) did not violate the state or federal Due Process rights of the children, since following disqualification the court was required to appoint another GAL if abuse or neglect was alleged (see Suffian v. Usher, 19 S.W.3d 130 [Mo. 2000]).
NEW JERSEY: A state statute prohibiting licensing of a check cashing office that is located within 2500 feet of an existing office was rationally related to the health and stability of the industry and to maintaining the statutory fee cap, which itself was a legitimate consumer protection measure, and thus did not violate substantive due process rights of the applicant who sought a license for an office that did not comply with distance restriction (see Roman Check Cashing, Inc. v. N.J. Dep't of Banking & Ins., 777 A.2d 1 [N.J. 2001]).
NEW YORK: The New York City School Construction Authority's proposed condemnation of undeveloped property owned by the city for use as a public school did not violate the federal due process rights of the city's lessee, which had leased the property for urban development purposes, since the lease expressly provided for the exercise of the eminent domain power against the premises and also enabled the city to avoid further liability upon condemnation (see Westchester Creek Corp. v. N.Y. City Sch. Const. Auth., 730 N.Y.S.2d 95 [N.Y. App. Div. 2001]).
OHIO: The state in 2005 placed a moratorium on the use of eminent domain until December 31, 2006 so that the state could study issues pertaining to eminent domain.
TEXAS: The state approved legislation that prohibits use of eminent domain in certain circumstances, including use of eminent domain to confer a benefit on a private party or for economic development.
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Oxford Companion to the Supreme Court. 2d Edition. Hall, Kermit L., James W. Ely, Jr., and Joel B. Grossman eds., Oxford University Press, 2005.
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