This article is written by Shreya Patra. This article covers the Fifth Amendment of the United States, the components of the Fifth Amendment including the grand jury, double jeopardy, self-incrimination, due-process clause, the Miranda warning and its exceptions, Collateral Estoppel and its relation to Res Judicata, and the Just Compensation (the Takings clause). 

Introduction

In the most shocking news, the violation of the Fifth Amendment is marked in the instance of DeViller’s family, who farm and raise cattle. They claim that their property was destroyed by the Texas Department of Transportation. The Department blocked their access to natural drainage with the creation of a concrete barrier, which floods their entire property during heavy rainfall. They seek just compensation under the Takings Clause under the Fifth Amendment, which guarantees just compensation for any public property taken from the owner that is put to public use.

In the case of New York v. Trump (2020), Trump created another bad impression of himself as he pleaded the Fifth, to avoid self incrimination, in relation to his civil fraud trial about his business empire. He is facing several charges, including that of fraud, falseful inflation of business, tax evasion, and non-payment among others. However, in New York, a judge has no bar from drawing an adverse inference from the pleading of the Fifth Amendment in a civil case. In this case, there are several contradictory statements that just act as supporting evidence to prove Trump guilty of the charges. 

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In the case of People v. Sneed (2023), the Supreme Court of Illinois ruled that the provisions and protections contained under the Fifth Amendment do not bar the state from compelling something. In this case, the defendant was compelled to recall and enter the password on their mobile, which is encrypted. This case adds to the growing worry about the protections that are provided under the Fifth Amendment and whether they extend to our electronic gadgets in this digital age. 

Historical background of Fifth Amendment of the US Constitution

The Fifth Amendment of the Constitution of the United States was ratified in 1791. The purpose of the introduction of this Amendment was to extend protection to those accused of committing crimes. In addition to this, it also aims to secure life, liberty and property. The Fifth Amendment forms an important part of the Constitution. The Fifth Amendment can be read 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 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.”

During the Eighteenth century, both English and American courts evolved to implement new methods of examination. During this, they found confessions that were forced and in regard to this, it was held that such confessions must be excluded from being admitted in the trial as evidence due to their unreliability. As we proceed further towards the Nineteenth century, the same stand was taken by the Supreme Court, but no such explicit statement was made in regard to self-incrimination. Self -incrimination lacked any constitutional safeguards during that time. 

It was observed in the Eighteenth century, the officials who had undertaken oaths were empowered to impose on the person before him the obligation to undertake an oath. The oath is to answer truthfully all the questions posed before him, to reflect his knowledge on them, and to ensure that truth prevails regardless of what is presented before the oath taker. If there is no oath undertaken, then the administration is not required to state to the person the nature, extent and meaning of the charges and crime he is facing. 

In the case of Bram v. United States (1897), a murder report on a ship sent the officials in a frenzy, who then began looking for the person responsible. When the ship docked itself at the port, the officials ended up catching hold of Bram, whom they suspected to be responsible for the murder. Thus, a body search was conducted on Bram, and he was also interrogated. 

The statements he made were considered to be a confession to the murder on the ship. At this stage of the trial, the official testified to the statements made by Bram during the interrogation. The Court found the manner of extracting the confession to be quite shocking, but the real question before them was whether it was truly a free and voluntary confession. 

This case helped to establish the following:

  • Any threat, inducement or promise to give a confession renders the confession inadmissible
  • The confession is admissible only if it is free and voluntary.
  • The confession must abide by the principles laid down under the Fifth Amendment of the Constitution of the United States, which states that a confession is incompetent if it is involuntary. 

This case helped to establish the connection between confessions and the Fifth Amendment. It also laid down certain components (free, voluntary, compliance with the Fifth Amendment) in order for the confession to be competent and admissible in the court of law. The Court went on to further reaffirm Bram (1897) in subsequent cases 

In the case of Powers v. United States (1912), the Court, in connection with what was held in Bram (1897), stated that any confession should not be disregarded because the accused had not been informed of his right to remain silent. During this period, the Supreme Court did not give any ruling on the extent of application of the self-incrimination clause and its admissibility. It was around the 1960s that it extended to other states by being read with the Fourteenth Amendment, before that, only the common law principles applied.  

Rights available under Fifth Amendment

The Fifth Amendment to the Constitution of the United States provides several rights and protections. As these rights are contained in the Constitution, they are guaranteed to all individuals. These can be broken down to give us five distinct rights and protections. These rights and protections guaranteed to individuals are as follows: 

  • The right against self-incrimination
  • The right to be subject to a jury trial for the charges faced
  • The protection against double jeopardy
  • The right to a fair trial
  • The protection against your property being taken for public use by the Government without adequate compensation 

Fifth Amendment of the US Constitution : contents of rights

Grand juries

A grand jury refers to a group of individuals who have been selected as a Jury. A grand jury is not to be confused with a trial jury, which renders its verdict at the stage of the trial itself. Whereas, a grand jury decides whether or not the charges are to be brought against the accused and thus are present in serious offenses such as felonies, also referred to as infamous crimes, whose meaning we will be discussing elaborately later.

A grand jury is tasked with deciding whether the evidence provided by the prosecutor is reasonable enough to provide an indictment to the accused. An indictment is part of the criminal procedure for crimes of a serious nature. An indictment helps to determine whether the formal charges against the accused are to be entertained and is the starting stage and the beginning of the criminal prosecution process. 

A grand jury can contain anywhere from 16 to 23 people. A grand jury can exist anywhere between a period of one month up to one year. The proceedings involving the grand jury are held in private in the absence of the suspected criminal. The suspected criminal is not allowed to be present in such proceedings.

The grand jury selected acts on their own, free from any directions of the prosecuting attorney or judge and is said to be an independent, investigative body. The prosecutors present the case before the grand jury and they try to prove to them that a criminal offense has been committed. The grand jury may compel the Court through a request to provide further evidence, such as a written testimony or even a subpoena, that would allow them to make a better decision regarding the indictment of the accused. The grand jury is free to pursue their own investigation that is free from any sort of external influence or supervision.   

The Grand Jury: its role and relationship

In the case of United States v. Williams (1992), the role of the grand jury and its relationship with the Government was discussed. The issue raised was whether the holding back of substantial exculpatory evidence by the prosecutor from the grand jury could result in the rejection of the indictment and the dismissal of the indictment by the District Court. The Supreme Court ruled that the role of the grand jury is to act as a buffer between the Government and the people, and keep a check on the power of the Government. The Supreme Court also ruled that exculpatory evidence may be provided at the trial itself and the grand jury has to only focus on deciding if there is adequate evidence for the crime.

Infamous Crime

Infamous crime is contained under the Fifth Amendment as “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;…”. Any crime can be termed infamous if it leads to a certain degree of harm and there is some planning or premeditation involved. 

It basically means that any person facing the charge of capital punishment or an infamous crime would not be compelled to answer without the presence of an indictment from the Grand jury. It also lists out the exceptions in which it would not be applicable, such as those cases involving land forces, naval forces, and the military at times of war or public danger. 

Infamous crime is any offense of felonious nature; that is, it is punishable with imprisonment for a period exceeding one year or death. There are many different kinds of felonies. Some of which include the felony of homicide, the felony of assault, the felony of larceny, felony of conduct, felony of restraint, felony of taking, among other such felonies. Crimes like corruption, fraud, and embezzlement are also considered infamous crimes in a few states. 

In the case of Griffin v. Pate (2016), it was discussed in the Supreme Court of Iowa, whether or not, the delivery of any controlled substance would amount to be referred to as an ‘infamous crime’ and whether it would amount to disqualification of the voter under the Constitution of Iowa. The Supreme Court of Iowa held that it does amount to a felonious crime and hence entails the disqualification of the voter.

Double jeopardy

Origin

The origin of double jeopardy cannot be traced to any English law; rather, it can be traced to Roman law and Canon law (laws related to the governance of Christian churches). It was during the 14th century that it did appear in England as an idea in its very early stages of inception. During the 17th century, it developed to become a more clear idea as a basic rule against double jeopardy, in the form of pleas such as “autrefois acquit,” meaning “previously tried,” “autrefois convict,” meaning “previously convicted,” and “autrefois attaint,” meaning “previously attained.”

However, the first noted observation of the protection against double jeopardy appeared in the Massachusetts Body of Liberties of 1641, which prevented the accused from facing two sentences for the same crime by the Civil Justice. In the case of United States v. DiFrancesco (1980), a minor was facing charges of assault and robbery, which he was acquitted of as they had not been proven beyond a reasonable doubt. Later, the minor was called by the judge of the District Court again, convicted and had to face a fine and imprisonment. The Supreme Court ruled that, subject to the appeal, an increased sentence was imposed and this does not amount to a violation of double jeopardy. 

This case discussed the four different protections available under double jeopardy under the Fifth Amendment. Firstly, it guarantees protection against a second prosecution of the same offense after acquittal; secondly, it guarantees protection against a second prosecution after conviction; thirdly, it guarantees protection against multiple punishments for the same offense; and fourthly, a right to a complete trial by a particular tribunal is guaranteed to the defendant. 

Meaning 

The double jeopardy clause is contained as per the Fifth Amendment in the Constitution of the United States. It prohibits the trial of the person for a second time for the same offense. For example, a person has stolen a wallet. He can be tried only once for that offense. Now, this protection extends to acquittal as well as conviction. If the person has been acquitted of the crime, he cannot be tried a second time for that offense. The same applies if he has been convicted for one offense, he cannot be convicted for it a second time. 

Further developments

As per the Fifth Amendment, double jeopardy is prohibited. It is contained in the Constitution of the United States as follows: “…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”. When the Bill of Rights was approved in 1791, it acted as a restrictive measure by limiting the powers of the federal government, which was newly created at that time. Thus, it was not applicable in the states. Though it became applicable to all states over the period of the 1800s to the 1900s, this was not the case for the double jeopardy clause. It was not until 1969 that the double jeopardy under the Fifth Amendment became applicable to all, as discussed under Benton v. Maryland (1969).

In this case, Benton, the plaintiff, was charged with burglary and larceny in the state of Maryland. He was acquitted of the charges of larceny but convicted of the charges of burglary. But in the Court of Maryland, the manner of swearing of jurors was unconstitutional. So Benton opted to appear before a new grand jury, which convicted him of both charges. In his second trial, he was found guilty, so Benton argued that the second trial of larceny amounted to a violation of the Fifth Amendment. 

The Supreme Court ruled that Benton is protected against double jeopardy by the Fifth Amendment. Thus, Benton was acquitted of the charges of larceny. The Supreme Court also gave a landmark decision related to the scope of double jeopardy in the Fifth Amendment. It stated that double jeopardy applies to all the states in the United States without any exceptions.

Scope

The words of the Fifth Amendment for describing double jeopardy suggest that it is only applicable to crimes that result in capital punishment for corporal punishment. In Ex parte Lange (1873), it was clarified that the protection of double jeopardy is available to criminal cases as well, not just capital and corporal punishment. In Breed (1975), the Court extended the scope of application of double jeopardy to include juvenile delinquency adjudication and not just felonies or misdemeanors, as the risks involved in juvenile delinquency are similar to those in traditional criminal trials. Thus, it would require protection against double jeopardy.

Any revocation of probation or parole would not draw protection against double jeopardy because it is administrative in nature and not criminal [probation – United States v. Miller (1939) and parole – United States ex rel. Carrasquillo v. Thomas (1982)]. Any statutory forfeiture of provisions working to aid the tariff laws are remedial measures and not punitive, and thus they do not attract protection against double jeopardy [One Lot Emerald Cut Stones v. United States (1972)]. 

In the case of United States v. Halper (1989), the Supreme Court unanimously ruled that the imposition of civil remedies amounts to be of punitive nature rather than remedial; they were proscribed by the clause of double jeopardy. Further, the Supreme Court also stated that this clause would allow the Court to seek both civil and criminal penalties in full in a single proceeding itself. The Court also ruled that the penalty imposed served the punitive purpose of deterrence and retribution rather than acting as a remedial measure. 

Application

In some instances, the application of double jeopardy becomes complicated. In some instances of straightforward application, such as in a jury trial, it applies from the moment the jury is sworn in [Crist v. Bretz (1978)]. In a bench trial, it applies from the moment the first witness is sworn in [Serfass v. United States (1975)]. In the case of a guilty plea, it applies from the moment the plea is accepted [United States v. Bullock (1978)]. In the case of a juvenile adjudication, it applies from the moment evidence is heard [Breed v. Jones (1975)]. 

Termination of jeopardy and initiation of double jeopardy

Before we truly understand when double jeopardy begins, it is important to understand that the first step to invoking double jeopardy is that there must be some sort of jeopardy that the person faces. And, after this jeopardy ends, the second step that is automatically invoked is the double jeopardy clause under the Fifth Amendment. The prohibition against double jeopardy does not take effect when jeopardy attaches itself. 

It is after the jeopardy ends that the protection contained under double jeopardy and its prohibition takes effect. Thus, double jeopardy is dependent on the termination of jeopardy. Protection against double jeopardy begins the moment when the person in a legal proceeding is no longer in any jeopardy legally. However, the exact moment of termination of the jeopardy in a legal proceeding depends on the stage and nature of the proceeding. It may be terminated in the following instances:

  • When the defendant is found to not be guilty by the jury explicitly
  • When the accused receives a greater charge by the jury and there is no verdict on such a kind of charge
  • When there is insufficient evidence, due to which judge grants a dismissal
  • When the case appears to be a mistrial (not mistrial due to hung jury)
  • When the Court of Appeals, on the basis of insufficient evidence, reverses a conviction

Thus, double jeopardy forms an important element of the Fifth Amendment. It is one of the unique protections guaranteed to the accused that bars them from facing a second trial for the same offense. It is invoked the moment after the person is done facing jeopardy legally. The objective of this protection is to ensure that if they have been punished once for their crimes, they should not be punished for them again, as it could lead to a vicious cycle that will not function with the current law enforcement in place.

Self-incrimination

Origin

The clause of self-incrimination draws its origins from the maxim “nemo tenetur seipsum accusare,” which means “no man has or is bound to accuse himself” for the crimes that have been committed. This maxim forms the basis of self-incrimination. As we go back in time, we find that it was enforced in England firstly as the accusatorial system, which was further expanded by Henry II. He ensured that the process went through the community, then the state, and then the judges who were responsible for the examination of such accused individuals. And, secondly, the inquisitorial system, which evolved through the Courts wherein the accused has to prove before the Court the extent of their responsibility towards an act while on oath. The purpose of an oath is to ensure that nothing but the truth comes out. 

Limitations of right against self incrimination

The right against self-incrimination is only available to individuals. It does not apply to artificial institutions like partnerships, LLPs and even companies, but it does not extend to sole proprietorships, which are excluded. Those having custody of the corporate records cannot deny providing them, even if such a record would lead them to incriminate themselves. Self-incrimination is not applicable to all kinds of evidence; it includes statements that admit guilt but steer clear of other evidence like DNA tests, samples of handwriting, fingerprints, etc.

The privilege of self-incrimination provides protection to the individual from turning in documents that would incriminate them and amount to self-incriminating testimony, even if there is a subpoena served to them directing them to do so.

Some incriminating documents that can be used against the privilege are as follows:

  • A search and seizure, carried out through a valid warrant, leads to the discovery of any documents by the police; the document could even be a diary which has the written events of the criminal act or record
  •  As per law, there are certain records that one is required to maintain and keep; these records could also be used as self-incriminating documents. Documents like tax returns can be used to prove fraud. 

In the landmark case of Schmerber v. California (1966), the application of the Fourth Amendment and the Fifth Amendment was clarified. The facts of the case simply begin with Schmerber crashing into a tree, leading to the injury of the passenger and himself. An officer who arrived at the scene suspected Schmerber to be drunk and directed for a blood sample to be drawn, even though Schmerber refused. The blood reports positively showcased Schmerber’s intoxication. He was tried for drinking and driving and the blood report analysis was provided as supporting evidence. 

Schmerber objected to this and stated that the rights available to him under the Fifth Amendment were violated and the protection against any unwarranted search and seizure guaranteed under the Fourth Amendment was not held up. The appellate court in this matter affirmed Schmerber’s conviction; the Supreme Court granted a certiorari instead.

The Supreme Court held that there was no violation of the Fourth Amendment in regard to the blood being drawn from Schmerber, and it was justified as the alcohol concentration in blood drops once a person stops drinking, so it was important to ascertain the degree of intoxication without any delays. In regard to the Fifth Amendment, the Supreme Court stated that the blood analysis was not a compulsion of self-incriminating testimony or would not amount to giving against oneself to the state. 

The privilege against self-incrimination usually applies to criminal procedure. It also extends to the civil procedure of a situation in which, if any testimony is provided in a proceeding, it creates the possibility of incriminating oneself in the future. The exception to the privilege of self-incrimination is for records that already exist in the public database, like any public records that are maintained for the purpose of better administration. 

Laws providing protection against self-incrimination

In the case of Malloy v. Hogan (1966), the Supreme Court stated that there are certain factors that must be kept in mind when a statement of confession is received by the officers. Firstly, the confession must be free, and secondly, it must be voluntary,  without any threat, force or inducement. If a confession is free and voluntary, then it would not amount to a self-incriminating statement. 

In the case of Griffin v. California, 380 U.S. 609 (1965), the Supreme Court was of the view that at the stage of trial, if the accused so wishes and invokes his rights contained in the Fifth Amendment, that is, not to self-incriminate, then the judge or the prosecution can state to the jury that the silence of the accused would not amount to evidence to support the fact that the accused admits their guilt towards the offense. 

Tax and self-incrimination 

The safeguards that exist for protecting oneself that generally exist for criminal matters may not extend to other matters, depending on the facts and circumstances of the case, such as a tax issue with the Internal Revenue Service. One such case is Beckwith v. United States (1976). In this case, the Internal Revenue Service was suspicious of Beckwith for having committed some tax fraud. They dispatched agents to meet him. On meeting him, he was informed of the rights available to him under the Fifth Amendment before the interview, all of which he consented to. Post-interview, the agents and Beckwith and the agents reached his office to inspect the documents, and while doing so, informed him of his legal obligations to refuse to provide the documents, but he had consented to it.

The Supreme Court held in this case that the protection guaranteed under the Fifth Amendment does not apply in the case of non-custodial, like one that is overseen by the Internal Revenue Service. In the case of Beckwith, the non-custodial interview was conducted on the premises of Beckwith’s home, where there could be no possibility to induce an atmosphere dominated by police. As this was not an ordinary place, the general safeguards to counter it are not required in the case of a custodial environment.  

There is another factor that was not discussed in the case of Beckwith (1976), that was discussed in the case of United States v. Leahey (1970). In this case, the Internal Revenue Service has certain procedures. One of which included giving a warning to those who would undergo an investigation by them. The First Circuit Court stated that a failure to provide such a warning implied the denial of the accused’s right to due process. It is also necessary that such safeguards naturally exist. Thus, there was a failure of administration in this case. Providing a warning is a part of due process that cannot be disregarded. 

Invoking the privilege by

The defendant 

At the stage of trial, the defendant can invoke the privilege against self-incrimination by refusing to give their testimony or take a stand. When the defendant invokes this privilege, the Court cannot compel the defendant to testify in the Court. The prosecution cannot highlight the failure of the defendant to testify or take a stand before the jury, as that would result in the invocation of the harmless error test. The harmless error test is exercised by the appellate court to determine whether or not the error committed by the trial judge was damaging enough to the appealing party’s right to a fair trial. No conviction is overturned in this case.

The witness

The witness can also invoke this privilege. The witness can only invoke this in the instance they are faced with a certain question, which, if they provide a response with, they will incriminate themselves. The defendant, however, has available to them, under the Sixth Amendment, the right to confrontation. However, it may not be invoked if it appears to be an obstacle in the process of cross-examination.

In case the defendant agrees to take the stand or the witness agrees and voluntarily discloses self-incriminating information in response to certain questions, then such a privilege is waived off. Once such a privilege is waived off due to the actions of the plaintiff or defendant, they cannot invoke it again, not even at the stage of cross-examination.  

Thus, the privilege against self-incrimination is one of the important protections guaranteed to all individuals when they are faced with any interrogation by police or are subject to taking a stand in court. The privilege against self-incrimination allows the parties to plead the Fifth which puts a pause on all questioning as a result of fear in the parties that their responses might incriminate themselves. However, this privilege is available to individuals only and not entities like companies, LLPs, sole proprietorships, etc. 

Miranda warning

A Miranda warning is the warning a police officer is required to give to the person being detained, highlighting their rights and obligations. As per the constitutional requirements, these warnings stem from the Fifth Amendment (privilege against self-incrimination) and the Sixth Amendment (right to counsel). The Miranda warning developed in the case of Miranda v. Arizona (1966). In the case of Miranda v. Arizona (1966), the importance and necessity of the warning, which later came to be referred to as the Miranda warning, was given. 

Miranda was arrested when he was at his home, and later he was taken into custody by the police station. The witness identified him, and he was interrogated by police officers. Through the interrogation, they were able to obtain a signed and written confession from Miranda admitting to the crimes. The Supreme Court of Arizona ruled that there was no such violation of Miranda’s constitutional rights in obtaining the confession; however, as a result of this, certain procedures were laid out as part of the due process of obtaining the confession or questioning of any person. 

As per the Miranda warning, a police officer is required to ensure that the suspects are informed of their constitutional rights, such as the right to consult with their legal representative, the legal representative is required to be present during questioning, right to remain silent, any statements made by them may be used as self-incriminatory evidence, etc. On the failure of issuing a Miranda warning or delivering a valid waiver of it, any statements made during that time become inadmissible at the stage of trial and thus they cannot be used as evidence as they violate the Constitution of the United States. 

This case helped establish an important aspect of law enforcement that should be available. The defendant is cut off from the outside world being questioned in a closed room. Before the authorities (regardless of whether it is police officers, detectives, etc.) begin questioning the defendant, the defendant should be informed of their rights in a full and effective manner so that they can get knowledge about them if they do not have it and invoke them.

At stage of interrogation

Miranda (1966) discussed the status of the confession that is obtained in an interrogation. In this case, it was reasoned that any statements obtained in the custody of the authorities during the stage of interrogation would amount to being inadmissible and would not hold any relevance in the subsequent trial. However, if the Miranda rights have been narrated in full to the accused, and then the accused made any statements, they would be admissible in the Court of law. However, it applies only to statements that have been made after the Miranda warning has been issued.

Trial privilege

Scope

The witness and the defendant have the option to refuse to respond to questions or even testify at the trial if the response they provide would amount to self-incrimination in a criminal proceeding. However, the prosecution can make use of any conflicting statements that might help to impeach the defendant once they consent to appear on the stand in the case.

Immunity

There might be some immunity granted that prevents them from facing any legal action. It is a kind of legal protection that prevents them from facing any punishment. If the prosecutor grants immunity to any of the individuals either before or during the trial, before the grand jury, then in that case the individuals have to testify, but their testimony is not used in subsequent prosecution but can be used for some other purpose. The different kinds of immunity are as follows:

Transactional immunity

A transactional immunity is a complete immunity. It provides complete protection to the witness it is granted to. Such witnesses are free from facing any prosecution in relation to the testimony they gave. 

Use and derivative use immunity

The use and derivative immunity is a precluded immunity. As per this immunity, the prosecutor is precluded from using the testimony of the witness or evidence from the testimony against the witness. 

Federal and state immunity 

A state immunity is applicable to that state only, and it does not apply to any other states. A state immunity is applicable to that state only and not beyond. So if an individual obtains a state immunity for a particular state, it is applicable and exercisable in that particular state only. For example, if a person is granted immunity in the state of Florida, they cannot use this immunity in the state of Minnesota as it applies to only one jurisdiction. However, if the individual is granted Federal immunity, they are precluded from making any admissions in a State proceeding. 

Exceptions 

Miranda warnings are not required to be given in each and every circumstance, some of which are as follows:

  • Undercover police

There is no requirement for an undercover police agent to give the suspect a Miranda warning, especially if they do not recognize that the person they are being questioned by is a police officer. In the case of Illinois v. Perkins (1990), a police officer acted as a fellow inmate and questioned the suspect to elicit an incriminating answer. The Supreme Court of the United States ruled that the response obtained was valid and admissible since he was unaware he was speaking to an officer and gave it voluntarily. There was no need to issue Miranda warnings since it was in a non-police dominated environment, and it was not a circumstance where it was required to be given. 

  • Routine booking

Any driver suspected of drinking and driving can face some routine questions by police officers without the issue of a Miranda warning. There is no Miranda warning when such routine checks are conducted.

  • Public safety

If the safety of the public is at risk, then the police can skip issuing the Miranda warnings and jump to arrest or detain the suspect. Any actions taken to protect the public would not invoke the need to issue a Miranda warning.  

  • Property

If there exists any property that has to be to be given to another or delivered, and such property has been given or delivered, then such giving or delivery of the property waives off the rights to obtain the Miranda warning. The burden of proof in this case rests with the Government which has to show that the waiver was made knowingly and voluntarily by the suspects themselves. 

In the case of Berghuis v. Thompkins (2011), the accused received Miranda warning as per the due process of law required for it. He did not invoke the right and still made a statement to the police without facing any coercion. The question was whether the right to remain silent stays or disappears when the accused does not invoke it. The Supreme Court ruled that if the accused does not invoke their Miranda rights, even after understanding them, then the right to remain silent is waived off.

The Miranda warning was thus established as an important part of carrying out the due procedure laid down under the law. The Miranda warning ensures that the individual is made aware of their rights. Often, the detainee is unaware of their rights, so the Miranda warning is narrated by the officer, who states the list of the rights available to them that they can invoke, which are guaranteed under the Fifth Amendment. It acts as a procedural safeguard by advising the detainee and suspects about what steps they can take.

Collateral estoppel

In the realm of criminal law and civil procedure, collateral estoppel forms an important doctrine. In case of criminal law, collateral estoppel is enshrined in the double jeopardy clause under the Fifth Amendment, which protects defendants from facing a second trial for the same offense. Thus, once they have faced the first jeopardy or first trial, the protection against double jeopardy or second trial is automatically applied. Further, it applies to both the federal government and the state government as per what was held in Benton (1969), by way of the Due Process Clause. In the case of civil procedure, the meaning of collateral estoppel is much different from that of criminal law. 

In civil procedure, collateral estoppel (also known as issue preclusion), which means once a Court has rules on an issue, the same issue cannot be litigated again, refers to the application of the principles of “Res Judicata” (also known as claim preclusion, which means a claim once judged cannot be judged again), through the means of issue preclusion. Though at times Res Judicata has been used to refer to both issue preclusion and claim preclusion, it is to be associated with only claim preclusion. A party can invoke collateral estoppel to restrict the other party from litigating any issue that has already been adjudged by the Court. 

Res Judicata

Res Judicata is a Latin phrase that stands for “a thing that has been judged.” It basically means that any claim that has already been entertained on its merits by the appropriate authority would not be entertained again. This is done to ensure that the Courts are not overburdened with unnecessary cases. It also ensures that repeated litigation is avoided and the resources of the judiciary are conserved. It also preserves the idea that the judgments given are final. In the case of Mycogen Corporation v.  Monsanto Company (2002), the purpose of the doctrine of Res Judicata was stated to be “the prevention of relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” Res Judicata is composed of the following elements:

Relitigation

Relitigation forms one of the elements that make up Res Judicata. Under Res Judicata, the parties cannot bring forward a claim in any lawsuit that has already been subject to final judgment in a previous or earlier suit. This applies to a new lawsuit that is filed in any of the courts and is not limited to the Court that has given the previous judgment. So, for example, Sebastian sues Janice for trademark infringement under the Lanham Act. Janice is found guilty and punished. Sebastian cannot initiate a suit for the same trademark infringement in the same matter. 

Same cause of action

This is one of the elements that invokes Res Judicata. Under Res Judicata, the parties cannot bring the same cause of action that has already been decided by the Court through a way of final judgment. For example, Brandon breaches the contract he has with Dex. Dex can file a lawsuit in relation to this breach. However, once this lawsuit has been decided, he cannot file for the same breach of the same contract. However, if it is a new breach in the same contract, Dex is free to file a new lawsuit because it is not the same breach as the previous lawsuit. 

Same or closely related parties 

When the parties to a lawsuit are listed as individuals, it becomes easy to distinguish in a new lawsuit whether or not the same parties are involved. Under Res Judicata, the Courts are empowered to bar any lawsuit that has a person or entity related to the party in the original lawsuit. This includes the agent of the original plaintiff of the original suit or even the subsidiary of the corporate plaintiff. The same applies to the defendants as well.

Exceptions to Res Judicata

There are special circumstances where Res Judicata does not apply, that is, a new lawsuit would be allowed. Res Judicata does not apply to the following claims and circumstances:

  • When a claim has been dismissed due to the lack of jurisdiction, or improper venue
  • When the plaintiff has voluntarily dismissed a claim
  • When the dismissal is for the want of the prosecution
  • When the dismissal is made without any prejudice to allow the plaintiff to correct defects and errors and refile the suit
  •  When one party fails to join the other as per the Joinder rule 

Types of collateral estoppel/issue preclusion

Defensive collateral estoppel

It happens when the party facing the lawsuit raises the claim for collateral estoppel. It was established in the case of Bernhard v. Bank of America (1942). In this case, the plaintiff sued the defendant for transferring funds with consent from the authority. The defendant moved ahead to estop the plaintiff because, in a previous lawsuit with a different defendant, an identical claim was raised and the plaintiff had lost. It was held that an individual who was not a party to the initial suit can raise collateral estoppel in the new suit.  

Offensive collateral estoppel

It happens when the party who has initiated the claim or the lawsuit initiates collateral estoppel against the defendant of the previous lawsuit. It can only be applied by the parties that were part of the initial suit, and thus it does require mutuality. For example, if the Court decides that Reed can recover against Brad because Brad committed a breach, then Harry, who is not a party to the initial suit, cannot raise collateral estoppel. 

Due process clause

The due process clause is contained in the Fifth Amendment to the Constitution as “nor be deprived of life, liberty, or property, without due process of law.” In 1868, the Fourteenth Amendment was ratified, which mentions these same words, especially the “due process clause,” which is defined as a legal obligation owed to the states. The due process clause basically entails that for the Government of the United States to function within the law, they are bound to carry out the procedure in a fair manner. The three different uses of it are as follows:

Incorporation

The incorporation doctrine talks about the Amendments made to the Constitution of the United States and the extent to which they are applicable to the states through the due process clauses contained in the Fourteenth Amendment. The Bill of Rights guarantees the people several promises of protection, one of which is contained in the form of ‘due process’ that they can exercise against the Federal Government. 

Initially, these were exercisable only against the Federal government. With the enactment of the Fourteenth Amendment, it became applicable to other states as well. As a result, what basically entailed was the application of the limitations to the state as the Bill of Rights. The Courts observed that the function of the due process clause contained in the Fourteenth Amendment is contained in the protections guaranteed under the Fifth Amendment. 

It was during the mid-twentieth century that several decisions of the Supreme Court reached the conclusion that the due process clause led to the incorporation of most of the parts of the Bill of Rights, which implies that state and federal obligations are the same. But not all the Amendments are applicable to all the states. 

Full IncorporationPartial IncorporationNo Incorporation
First AmendmentFifth Amendment (The right to indictment by a grand jury has not been incorporated)Third Amendment
Second AmendmentSixth Amendment (The right to a jury selected from residents of crime location has not been incorporated)Seventh Amendment
Fourth Amendment––
Eighth Amendment––

Substantive due process

The substantive due process was given by Justice Stephen J. Field in the form of a dissenting opinion in the Slaughterhouse Cases (1872), wherein he elaborated that the due process clause provided protection to individuals against the legislation of the state that has infringed on the rights contained under the Federal Constitution. Substantive due process has been said to have contained several things, including the right to marry and raise children as their parents and the right to work, among other rights.

In Lochner v. New York (1905), the Supreme Court ruled that it was unconstitutional that a legal provision in New York was governing the hours of work of the bakers there, and using the justification of public benefit was not reasonable enough for the bakers to work in such conditions under such terms. Thus, substantive due process is still in use today but it is still prone to criticism. 

The promise of legality and fair procedure

The due process clause is thought to embody the commitment to ensure legality and ensure fair procedure of law is followed. It showcases the requirement for the Government to function in accordance with the law. It also ensures that the government must follow fair procedure before it deprives a citizen of their rights, their liberty, or their property. It should also provide citizens with the option to a fair procedure, regardless of whether or not it is contained in the law it is acting in accordance with. 

If it acts disregarding this procurement that is said to be ‘due’, then such actions would be deemed unconstitutional. For example, if the law of the state provides that there would be residential homes provided to the homeless but does not say anything about who is actually regarded as a homeless individual (such as their income slab), then before the government takes away such a right that they have provided, they would have to provide a fair procedure, also known as due process.  

Thus, it becomes essential to determine in a procedure what exactly is due—it could be life, liberty, property or something else—and, if it is due, what procedure is to be followed in such a case. It was in the 19th century that the government had limited powers and hence functioned simply as it was. This resulted in the deprivation of several rights through criminal law and the Bill of Rights, which set up a few procedures that were required to be followed by the Government. 

In the case of Bi-Metallic Investment Co. v. State Board of Equalization (1915), the Supreme Court ruled that politics acted as a factor in determining the level of taxes. If the tax dispute was based on the liability of the individual, the right to a hearing is to be provided. Thus, the state was given the space to decide on the procedures that would be applicable, but it could not refuse them altogether.  

Distinguishing due process

There was one important distinction that was established by Bi-Metallic (1915), there is no requirement of the Constitution to enforce due process to establish laws; the provisions automatically apply when the state’s actions are against the individual, that is, the characteristics unique to that individual are harmed in any manner. It becomes important to distinguish in which cases the individual grounds would require the invocation of due process. 

Thus, if we take the above elaborated example (of shelter for homeless), the Due process does not govern how the rules are set by the state for criteria of giving out houses to the homeless but it does govern how the rules and criteria are applied to the homeless and if at all there is some violation, like those not falling under the criteria of being homeless as set by the state being given the houses, etc. 

When we talk about due process, it is important that even though the individual acted on their individual grounds, the question that has been determined is whether the state in particular deprived them of any of their rights. In simple terms, there must be some state action. Thus, due process would not apply to any private entities but would apply to public entities. The due process would not apply to any private entity giving out shelter homes to the homeless but it would apply to government entities.

It became important to determine whether there was any sort of depreciation from the action of the state against the individual. In doing so, the difference between rights and privileges was drawn. If it is related to rights, then the process is due, but this gives the statute the liberty to act as they please with regards to privileges. Several developments made it difficult to tell them apart from one another. There was an increase in how dependent the citizens were on the Government. Any action of the Government has to be looked into seriously as it has an impact on the individual. Even before the government could act on anything that was affecting a citizen in any manner, the process remained due.

When procedure is due

In most of the early decisions given by the Supreme Court, there existed the notion that only the rights to property were at stake. Thus, any hearings related to it could be heard later in order to follow the government action. However, this notion changed with the judgment in Goldberg v. Kelly (1969). In this case, the state had administered a welfare program. The Supreme Court ruled that before any termination of the benefits availed by the recipient through the welfare program, a full hearing must be provided before the hearing officer to determine whether or not the due process clause is required in such a case.

What procedures are due 

In the case of a criminal trial, the Bill of Rights guides it by providing explicit answers as to when the procedure is due. In the case of civil trials, English law provides some landmark cases that help determine whether the procedure is due or not. However, as far as administrative proceedings are concerned, there are very few landmark cases, which makes it difficult to determine in such instances whether or not the procedure is due. Goldberg (1969) presented the right to hear before a judicial officer who is fair and impartial and the right to present evidence, among other rights. But it was contended that the standards in this case are too broad. At the same time, there cannot be one single response to the question – What process is “due”? 

In Mathews v. Eldridge (1976), the Supreme Court tried to provide a method in which the questions of due process could be presented by the lawyers before the Court from whom they would receive answers. There are, namely, three factors that have to be analyzed, as stated by the Court. They are as follows:

  • Such an official action affects the private interest;
  • There is a risk which results in the deprivation of interest through the procedure that is used, and an estimate value of the additional or substitute procedural safeguard;
  • The interest of the Government

The Courts began to attach and regard this case with more importance with deciding on matters. The Court also began giving more importance to good faith judgments. 

Just compensation (The Taking clause)

Just compensation is also known as the Taking clause. It is contained in the Fifth Amendment as “…nor shall private property be taken for public use, without just compensation.” A taking refers to when the government takes over private property for the purpose of the benefit and use of the public in exchange for any compensation that is reasonable. A taking is of two types. They are as follows:

  • Physical taking: In a physical taking, the government takes away the property from the owner.  
  • Constructive taking: A constructive taking is also known as a regulatory taking. It refers to when the government imposes restrictions on the rights of the owner, which results in the government action becoming equal to that of a physical seizure of the property. 

The Fifth Amendment empowers the government to take over private property and convert it into a property that would be used for the public by providing for the owner but it mandates that just compensation is to be provided. In the case of Kohl v. United States (1875), the Supreme Court held that the government should take over the property provided that just compensation has been given to the property’s owner. In the case of Loretto v. Teleprompter Manhattan CATV Corp. (1982), the Supreme Court clarified that compensation is to be provided to the owner regardless of the size of the property and whether the use by the government affects the economic interest of the owner. 

Now, if the compensation is just or not is determined through the appraisal of that property in the market. Any sentimental or other value that the owner has towards the property would not be considered in such a case. The value of the property can vary depending on its size, location, and characteristic construction, making it difficult to ascertain its exact market value. 

The value of the property can be determined, up to some extent, by looking at the prices of the property nearby that are similar to the property being seized. However, this is not applicable in all circumstances, as there might not be sales in the market of property of similar nature in order to draw a comparison. Thus, many factors have to be considered in order to determine the value of the property, such as its location, its design, the facilities attached to the property.  

Public use requirement

If the government seizes any property, it would have to prove that it is for the welfare of the public that it is taking such an action. In the case of Kelo v. City of New London (2005), the Supreme Court permitted the action of taking private property for private use. This is so because even though the Government promoted the use of the property for private development, ultimately, the public would benefit from such a seizure and the community would benefit from economic development. 

As a result of Kelo (2005), the taking power of the government under the Fifth Amendment broadened. This became an issue and the states began to question the extent and powers of the federal government. In response to this, several states passed their own legislation to restrict this ability of the government.   

Land use regulation

Most of the disputes related to the regulatory taking clause stem from the regulation of the use of land. In the case of Agnis v. City of Tiburon (1980), the Supreme Court ruled that just compensation is not mandatory, as long as the owner is able to reap economic benefits from his land and the government is able to advance their interests, and there is obstruction as such preventing the owner or the government from doing so. 

Amount of compensation that is just

The amount of just compensation is determined by the market value of the property that has been seized. There exist several exceptions to it. For example, if the value of the property has been created by the Government, the Government need not compensate the owner. In the case of United States v. Fuller, 409 U.S. 488 (1973), the Supreme Court ruled that when the rancher was facing charges for grazing the cattle, the rancher was not responsible for compensation for the adjacent land that was not owned by the Federal Government.  

Remedies for taking

In the case of First Evangelical (1987), the Church had constructed certain buildings over the property. A temporary flood had destroyed them. In response to this, the state banned the construction of property over flood-prone areas. The Church filed a suit alleging that banning construction would mean that they were being denied the right to use their own property and they hoped for monetary compensation to alleviate the losses caused to them. The most appropriate remedy in the case of a taking would be compensation (also known as compensatory or monetary damages), and not anything more than that.

Conclusion

The Fifth Amendment to the Constitution of the United States provides several protections and guarantees to its citizens and those facing charges. These include the right to grand jury, the right against self-incrimination, the right against double jeopardy, the right to obtain just compensation, the issue preclusion contained under the doctrine of collateral estoppel, the right to hear the Miranda warning before facing any detention or questioning, and the due process clause, which ensures that the government acts within the boundaries of the powers that have been provided to it. 

Thus, the Fifth Amendment provides several guarantees and protections that the citizens must have an idea about so they can invoke them. After all, “Ignorantia facti doth excusat ignorantia juris non excusat,” which is a Latin phrase that stands for “ignorance of fact is an excuse, but ignorance of the law is no excuse.” The Fifth Amendment acts as a support system to educate the masses about the law and the protections available to them such as through the Miranda warning. 

Frequently Asked Questions (FAQs) on the Fifth Amendment in the US 

What happens when you plead the Fifth?

If you plead the Fifth, you exercise your right to refuse to respond to questions that would amount to self-incrimination. You can plead the Fifth if you are facing criminal charges and you do not want to accidentally confess or reveal that you have committed the crime, as it would amount to self incrimination. By pleading the Fifth, you can prevent yourself from making self-incriminating or conflicting statements and exercise the protection guaranteed to you under the Fifth Amendment of the Constitution of the United States. 

What does the Fifth Amendment encompass?

The Fifth Amendment encompasses several different kinds of rights upon an individual. These include five different types of rights and protection, which are as follows:

  • The privilege against self-incrimination
  • The right to be subject to a jury trial for the charges faced
  • The protection against double jeopardy
  • The right to a fair trial
  • The protection against your property being taken for public use by the Government without adequate compensation. 

References

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