R.M.P Marotta Long Island

The Fifth Amendment of the U.S. Constitution  “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.”

The Fifth Amendment of the U.S. Constitution “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.”

• The right to indictment by the grand jury before any criminal charges for felonious crimes
• A prohibition on double jeopardy
• A right against forced self-incrimination
• A guarantee that all criminal defendants have a fair trial, and
• A guarantee that the government cannot seize private property without making a due compensation at the market value of the property.

While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has partially incorporated the Fifth Amendment to the states through the Due Process Clause of the Fourteenth Amendment. The right to indictment by the grand jury has not been incorporated, while the right against double jeopardy, the right against self-incrimination, and the protection against arbitrary taking of private property without due compensation have all been incorporated into the states.

Double Jeopardy

The Double Jeopardy Clause aims to protect against the harassment of an individual through successive prosecutions of the same alleged act, to ensure the significance of an acquittal, and to prevent the state from putting the defendant through the emotional, psychological, physical, and financial troubles that would accompany multiple trials for the same alleged offense. Courts have interpreted the Double Jeopardy Clause as accomplishing these goals by providing the following three distinct rights: a guarantee that a defendant will not face a second prosecution after an acquittal, a guarantee that a defendant will not face a second prosecution after a conviction, and a guarantee that a defendant will not receive multiple punishments for the same offense. Courts, however, have not interpreted the Double Jeopardy Clause as either prohibiting the state from seeking a review of a sentence or restricting a sentence’s length on rehearing after a defendant’s successful appeal.

Jeopardy refers to the danger of conviction. Thus, jeopardy does not attach unless a risk of the determination of guilt exists. If some event or circumstance prompts the trial court to declare a mistrial, jeopardy has not been attached if the mistrial only results in minimal delay and the government does not receive added opportunity to strengthen its case.

Self-Incrimination

The Fifth Amendment also protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may “plead the Fifth” and not answer if the witness believes answering the question may be self-incriminatory.

In the landmark Miranda v. Arizona 384 U.S. 436 (1966) ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights. Known as Miranda rights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.

However, courts have since then slightly narrowed the Miranda rights, holding that police interrogation or questioning that occurs prior to taking the suspect into custody does not fall within the Miranda requirements, and the police are not required to give Miranda warnings to the suspects prior to taking them into custody, and their silence in some instances can be deemed to be implicit admission of guilt.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violating the Fifth Amendment protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of the Miranda rights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement. The Fifth Amendment right does not extend to an individual’s voluntarily prepared business papers because the element of compulsion is lacking. Similarly, the right does not extend to potentially incriminating evidence derived from obligatory reports or tax returns.

To be self-incriminating, the compelled answers must pose a “substantial and ‘real,’ and not merely a “trifling or imaginary hazard” of criminal prosecution.

After Congress passed the Crime Control and Safe Streets Act, some felt that the statute by implication overruled the requirements of Miranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt that Miranda represented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. In Dickerson v. United States, the U.S. Supreme Court rejected this argument and held that the Warren Court had directly derived Miranda from the Fifth Amendment.

Due Process Clause

The guarantee of due process for all persons requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive any person of life, liberty, or property. Due process essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding. While the Fifth Amendment only applies to the federal government, the identical text in the Fourteenth Amendment explicitly applies this due process requirement to the states as well.

Courts have come to recognize that two aspects of due process exist: procedural due process and substantive due process. The procedural due process aims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensuring that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the 20th century as protecting those substantive rights so fundamental as to be “implicit in the concept of ordered liberty.”

Just Compensation Clause

While the federal government has a constitutional right to “take” private property for public use, the Fifth Amendment’s Just Compensation Clause requires the government to pay just compensation, interpreted as market value, to the owner of the property, valued at the time of the takings. The U.S. Supreme Court has defined fair market value as the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property’s good and bad attributes, would pay. The government does not have to pay a property owner’s attorney’s fees unless a statute so provides.

In 2005, in Kelo v. City of New London, the U.S. Supreme Court rendered a controversial opinion in which they held that a city could constitutionally seize private property for private commercial development, where the redevelopment would economically benefit an area that was “sufficiently distressed to justify a program of economic rejuvenation. However, after the Kelo decision, some state legislatures passed statutory amendments to counteract Kelo and expand protection for the condemned.

• See e.g. Condemnation by Redevelopment Auth. of Fayette Certain Land in Brownsville Borough v. Redevelopment Auth., 152 A.3d 375, 376 (Pa. Commw. Ct. 2016).

Nevertheless, Kelo remains a valid law under the federal context, and its broad interpretation of “public use” still holds true under the federal protection for the Fifth Amendment right to just compensation.