The Fifth Amendment Project

The e-Advocate Quarterly Magazine John 19

The Fifth Amendment Project

“Helping Individuals, Organizations & Communities Achieve Their Full Potential”

Vol. IX, Issue XXXVI – Q-1 January| February| March 2023

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The Fifth Amendment Project

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Biblical Authority John 19 (NIV) Jesus Sentenced to Be Crucified 19:1-16pp -- Mt 27:27-31; Mk 15:16-20 1 Then Pilate took Jesus and had him flogged. 2 The soldiers twisted together a crown of thorns and put it on his head. They clothed him in a purple robe 3 and went up to him again and again, saying, "Hail, king of the Jews!" And they struck him in the face. 4 Once more Pilate came out and said to the Jews, "Look, I am bringing him out to you to let you know that I find no basis for a charge against him." 5 When Jesus came out wearing the crown of thorns and the purple robe, Pilate said to them, "Here is the man!" 6 As soon as the chief priests and their officials saw him, they shouted, "Crucify! Crucify!" But Pilate answered, "You take him and crucify him. As for me, I find no basis for a charge against him." 7 The Jews insisted, "We have a law, and according to that law he must die, because he claimed to be the Son of God." 8 When Pilate heard this, he was even more afraid, 9 and he went back inside the palace. "Where do you come from?" he asked Jesus, but Jesus gave him no answer. 10 "Do you refuse to speak to me?" Pilate said.

"Don't you realize I have power either to free you or to crucify you?" 11 Jesus answered, "You would have no power over me if it were not given to you from above. Therefore the one who handed me over to you is guilty of a greater sin." 12 From then on, Pilate tried to set Jesus free, but the Jews kept shouting, "If you let this man go, you are no friend of Caesar. Anyone who claims to be a king opposes Caesar." 13 When Pilate heard this, he brought Jesus out and sat down on the judge's seat at a place known as the Stone Pavement (which in Aramaic is Gabbatha). 14 It was the day of Preparation of Passover Week, about the sixth hour. "Here is your king," Pilate said to the Jews. 15 But they shouted, "Take him away! Take him away! Crucify him!" "Shall I crucify your king?" Pilate asked. "We have no king but Caesar," the chief priests answered.

The Crucifixion 19:17-24pp -- Mt 27:33-44; Mk 15:22-32; Lk 23:33-43 16 Finally Pilate handed him over to them to be crucified. So the soldiers took charge of Jesus. 17 Carrying his own cross, he went out to the place of the Skull (which in Aramaic is called Golgotha). 18 Here they crucified him, and with him two others--one on each side and Jesus in the middle. 19 Pilate had a notice prepared and fastened to the cross.

It read: jesus of nazareth, the king of the jews. 20 Many of the Jews read this sign, for the place where Jesus was crucified was near the city, and the sign was written in Aramaic, Latin and Greek. 21 The chief priests of the Jews protested to Pilate, "Do not write 'The King of the Jews,' but that this man claimed to be king of the Jews." 22 Pilate answered, "What I have written, I have written." 23 When the soldiers crucified Jesus, they took his clothes, dividing them into four shares, one for each of them, with the undergarment remaining. This garment was seamless, woven in one piece from top to bottom. 24 "Let's not tear it," they said to one another. "Let's decide by lot who will get it." This happened that the scripture might be fulfilled which said, "They divided my garments among them and cast lots for my clothing." So this is what the soldiers did. 25 Near the cross of Jesus stood his mother, his mother's sister, Mary the wife of Clopas, and Mary Magdalene. 26 When Jesus saw his mother there, and the disciple whom he loved standing nearby, he said to his mother, "Dear woman, here is your son," 27 and to the disciple, "Here is your mother."

From that time on, this disciple took her into his home.

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The Death of Jesus 19:29,30pp -- Mt 27:48,50; Mk 15:36,37; Lk 23:36 28 Later, knowing that all was now completed, and so that the Scripture would be fulfilled, Jesus said, "I am thirsty."

29 A jar of wine vinegar was there, so they soaked a sponge in it, put the sponge on a stalk of the hyssop plant, and lifted it to Jesus' lips. 30 When he had received the drink, Jesus said, "It is finished." With that, he bowed his head and gave up his spirit. 31 Now it was the day of Preparation, and the next day was to be a special Sabbath. Because the Jews did not want the bodies left on the crosses during the Sabbath, they asked Pilate to have the legs broken and the bodies taken down. 32 The soldiers therefore came and broke the legs of the first man who had been crucified with Jesus, and then those of the other. 33 But when they came to Jesus and found that he was already dead, they did not break his legs. 34 Instead, one of the soldiers pierced Jesus' side with a spear, bringing a sudden flow of blood and water. 35 The man who saw it has given testimony, and his testimony is true. He knows that he tells the truth, and he testifies so that you also may believe. 36 These things happened so that the scripture would be fulfilled: "Not one of his bones will be broken," 37 and, as another scripture says, "They will look on the one they have pierced."

The Burial of Jesus 19:38-42pp -- Mt 27:57-61; Mk 15:42-47; Lk 23:50-56 38 Later, Joseph of Arimathea asked Pilate for the body of Jesus. Now Joseph was a disciple of Jesus, but secretly because he feared the Jews. With Pilate's permission, he came and took the body away. 39 He was accompanied by Nicodemus, the man who earlier had visited Jesus at night. Nicodemus brought a mixture of myrrh and aloes, about seventy-five pounds. 40 Taking Jesus' body, the two of them wrapped it, with the spices, in strips of linen. This was in accordance with Jewish burial customs. 41 At the place where Jesus was crucified, there was a garden, and in the garden a new tomb, in which no one had ever been laid. 42 Because it was the Jewish day of Preparation and since the tomb was nearby, they laid Jesus there.

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Table of Contents The Fifth Amendment Project

Biblical Authority I.

Introduction

II.

Text of the Fifth Amendment

III.

Grand Juries

IV.

Double Jeopardy

V.

Self-Incrimination

VI.

Due Process of Law a. Substantive b. Procedural

VII.

Just Compensation a. Eminent Domain

Attachments A. Know Your Fourth & Fifth Amendment Rights B. Asserting the Fifth Amendment in Civil Proceedings C. Fifth Amendment Timeline

Copyright Š 2015 The Advocacy Foundation, Inc. All Rights Reserved.

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Introduction The Fifth Amendment creates a number of rights relevant to both criminal and civil legal proceedings. In criminal cases, the Fifth Amendment guarantees the right to a grand jury, forbids ―double jeopardy,‖ and protects against self-incrimination.

It also requires that ―due process of law‖ be part of any proceeding that denies a citizen ―life, liberty or property‖ and requires the government to compensate citizens when it takes private property for public use.

The Fifth Amendment to the United States Constitution is part of the Bill of Rights and protects against a person being compelled to be a witness against themselves in a criminal case. Taking the Fifth is a colloquial term for invoking the privilege that allows a witness to decline to answer questions that might incriminate them, without penalty or it counting against them. A defendant can not be compelled to become a witness at their own trial, but if they do testify they are not entitled to the privilege and inferences can be drawn from a refusal to answer questions. The Amendment requires that felonies be tried only upon indictment by a grand jury. Federal grand juries can force people to take the witness stand, but defendants in those proceedings have Fifth Amendment privilege until they choose to answer any question.

The grand jury is a pre-constitutional common law institution, and a constitutional fixture in its own right exclusively embracing common law. The process applies to the states to the extent that the states have incorporated grand juries and/or common law. Most states have an alternative civil process. "Although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelming [p688] majority of the States." Branzburg v. Hayes (No. 70-85) 1972. The Amendment also provides several trial protections, including the right against selfincrimination (held to also apply to custodial interrogations and before most government bodies) as well as the right to be tried only once ("double jeopardy") in federal court for the same offense. The Amendment also has a Due Process Clause (similar to the one in the 14th Amendment) as well as an implied equal protection requirement (Bolling v.

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Sharpe). Finally, the Amendment requires that the power of eminent domain be coupled with "just compensation" for those whose property is taken.

Whether a crime is "infamous" is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed; however, crimes punishable by death must be tried upon indictments. The historical origin of "infamous crime" comes from the infamia, an extreme punishment under Roman law by which a citizen was deprived his citizenship. 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. In Mackin v. United States, 117 U.S. 348 (1886), the Supreme Court judged that "'Infamous crimes' are thus, in the most explicit words, defined to be those 'punishable by imprisonment in the penitentiary.'", while it later in Green v. United States 356 U.S. 165 (1957), stated that "imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year". Therefore an infamous crime is one that is punished by imprisonment for over one year.

Susan Brown, a former defense attorney and Professor of Law at the University of Dayton School of Law, concluded: "Since this is essentially the definition of a felony, infamous crimes translate as felonies."

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Text of the Fifth Amendment "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 clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Page 12 of 77

Process Clause from the Magna Carta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: grand juries for capital crimes, a prohibition on double jeopardy, a prohibition against required self-incrimination, a guarantee that all criminal defendants will have a fair trial, and a promise that the government will not seize private property without paying market value.

While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has interpreted the Fifth Amendment's provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment.

Grand Juries Grand juries are a holdover from hundreds of years ago, originating during Britain's early history. Deeply-rooted in the Anglo-American tradition, the grand jury originally served to protect the accused from overly-zealous prosecutions by the English monarchy.

Congressional statutes outline the means by which a grand jury shall be impaneled.

Ordinarily, the grand jurors are selected from the pool of prospective jurors who potentially could serve on a given day in any juror capacity. At common-law, a grand jury consists of between 12 and 23 members. Because the Grand jury was derived from the common-law, courts use the common-law as a means of interpreting the Grand Jury Clause. While state legislatures may set the statutory number of grand jurors anywhere within the common-law requirement of 12 to 23, statutes setting the number outside of this range violate the Fifth Amendment. Federal law has set the federal grand jury number as falling between 16 and 23.

A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct "fishing expeditions" or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may make a presentment. During a presentment the grand jury informs the court that they have a reasonable suspicion that the suspect committed a crime.

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, Page 13 of 77

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 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 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 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 selfincriminatory.

In the landmark Miranda v. Arizona 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. 384 U.S. 436 (1966). 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.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violative of the Fifth Amendment's protection against selfincrimination, 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.

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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 arguments and held that the Warren Court had directly derived Miranda from the Fifth Amendment.

Due Process Clause The guarantee of due process for all citizens 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 a 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. 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 ensures 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 right 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. 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, however, unless a statute so provides.

In Kelo v. City of New London, 545 U.S. 469 (2005) 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.

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Grand Juries "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;

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 that apply in court or in other situations do not apply during grand jury proceedings. For example, the exclusionary rule does not apply to certain 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.

Also, an individual does not have the right to have an attorney present in the grand jury room during hearings. An individual would have such a right during questioning by the police while in custody, but an individual testifying before a grand jury is free to leave the grand jury room to consult with his or her attorney outside the room before returning to answer a question.

Currently, federal law permits the trial of misdemeanors without indictments.

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 Page 16 of 77

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 without indictments.

The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment. This means that the grand jury requirement applies only to felony charges in the federal court system. While many states do employ grand juries, no defendant has a Fifth Amendment right to a grand jury for criminal charges in state court. States are free to abolish grand juries, and many (though not all) have replaced them with preliminary hearing.

______ United States v. Miller, 471 U.S. 130 (1985) United States v. Miller No. 83-1750 Argued January 16, 1985 Decided April 1, 1985 Syllabus A federal grand jury returned a multicount indictment charging respondent with mail fraud in violation of 18 U.S.C. ยง 1341. He was alleged to have defrauded his insurer in connection with a burglary at his place of business both by consenting to the burglary in advance and by lying to the insurer about the value of his loss. The proof at his jury trial, however, concerned only the latter allegation, and he was convicted. Respondent appealed on the basis that the trial proof had fatally varied from the scheme alleged in the indictment. The Court of Appeals agreed and vacated the conviction, holding that, under the Fifth Amendment's grand jury guarantee, a conviction could not stand where the trial proof corresponded to a fraudulent scheme much narrower than, though included in, the scheme that the indictment alleged.

Held: Respondent's Fifth Amendment grand jury right was not violated. Pp. 471 U. S. 135-145.

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(a) As long as the crime and the elements thereof that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime. Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment. A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as a useless averment that may be ignored. Pp. 471 U. S. 135138. (b) Respondent has shown no deprivation of his substantial right to be tried only on charges presented in a grand jury indictment. He was tried on an indictment that clearly set out the offense for which he was ultimately convicted. Stirone v. United States,361 U. S. 212, distinguished. Pp. 471 U. S. 138-140. (c) The proposition that a narrowing of an indictment constitutes an "amendment" that renders the indictment void, Ex parte Bain,121 U. S. 1, is now explicitly rejected. Pp. 471 U. S. 140-145. (d) The variance complained of here added nothing new to the indictment and constituted no broadening, and what was removed from the case was in no way essential to the offense on which respondent was convicted. P. 471 U. S. 145.

715 F.2d 1360 and 728 F.2d 1269, reversed.

Page 471 U. S. 131 MARSHALL, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the consideration or decision of the case.

Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.

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Double Jeopardy ...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...

The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment.

(Jeopardy):applies when the jury is empaneled in a jury trial, when the first witness is sworn in during a bench trial, or when a plea is rendered.

Prosecution After Acquittal The government is not permitted to appeal or try again after the entry of an acquittal, whether a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), or an "implied acquittal" via conviction of a lesser included offense. In addition, the government is barred by collateral estoppel from re-litigating against the same defense, a fact necessarily found by the jury in a prior acquittal, even if the jury hung on other counts.

This principle does not prevent the government from appealing a pre-trial motion to dismiss or other non-merits dismissal, or a directed verdict after a jury conviction, nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute. Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency, including habeas, or "thirteenth juror" appellate reversals notwithstanding sufficiency on the principle that jeopardy has not "terminated." There is also an exception for judicial bribery in a bench trial.

Multiple Punishment, Including Prosecution After Conviction In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. Blockburger is the default rule, unless the legislatively intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.

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The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction. In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was not satisfied, but Grady was overruled in United States v. Dixon (1993).

Prosecution After Mistrial The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith", i.e., goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial. The same standard governs mistrials granted sua sponte.

Smith v. Massachusetts, 543 U.S. 462 (2005) No. 03–8661.Argued December 1, 2004—Decided February 22, 2005 Petitioner was tried before a Massachusetts jury on charges related to a shooting, including unlawful possession of a firearm. At the conclusion of the prosecution‘s case, petitioner moved for a not-guilty finding on the firearm count because ―the evidence [was] insufficient as a matter of law to sustain a conviction,‖ Mass. Rule Crim. Proc.

25(a). The trial judge granted the motion, finding no evidence to support the requirement of the unlawful possession count that the firearm have a barrel shorter than 16 inches. The prosecution rested, and the trial proceeded on the other counts. Before closing argument, the prosecution argued that under Massachusetts precedent, the victim‘s testimony that the defendant shot him with a ―pistol‖ or ―revolver‖ sufficed to establish barrel length. The judge ―reversed‖ her previous ruling, allowing the firearm count to go to the jury. The jury convicted petitioner on all counts. In affirming, the Massachusetts Appeals Court held that the Double Jeopardy Clause was not implicated because the trial judge‘s correction of her ruling had not subjected petitioner to a second prosecution or proceeding, and held that Rule 25 did not prohibit the judge from reconsidering her decision.

Held: 1. Submitting the firearm count to the jury plainly subjected petitioner to further “factfinding proceedings going to guilt or innocence,” which are prohibited following a midtrial acquittal by the court, Smalis v. Pennsylvania,476 U. S. 140, 145. The ruling here met the definition of an acquittal consistently used in this Court‘s double-jeopardy cases. In United States v. Martin Linen Supply Co.,430 U. S. 564, this Court rejected reasoning identical to the Commonwealth‘s claim that jeopardy did not terminate midtrial because the judge‘s determination was legal rather than factual. How Massachusetts characterizes the ruling is not binding on this Court. Smalis, supra, at 144, n. 5. What matters is that, as the Massachusetts Rules authorize, the judge ―evaluated the Page 21 of 77

[Commonwealth‘s] evidence and determined that it was legally insufficient to sustain a conviction.‖ Martin Linen, supra, at 572. Pp. 3–6.

2. The Double Jeopardy Clause forbade the judge to reconsider the acquittal later in the trial. While the Clause may permit States to create a procedure for reconsidering a midtrial determination of insufficiency of proof, Massachusetts had no such procedure at the time of petitioner‘s trial. Its Rules allowed only clerical errors, or those ―arising from oversight or omission,‖ to be corrected at any time. Mass. Rule Crim. Proc. 42. A few Commonwealth cases have provided that interlocutory rulings are subject to reconsideration, but these cases, without more, do not extend that principle to a not-guilty finding under Rule 25, which purports not to be interlocutory but to end the case. A seeming dismissal may induce a defendant to present a defense to the undismissed charges when he would be better advised to stand silent. The Double Jeopardy Clause cannot be allowed to become a potential snare for those who reasonably rely on it. If, after a facially unqualified midtrial acquittal on one count, the trial has proceeded to the defendant‘s introduction of evidence on the remaining counts, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence. Pp. 6–12.

58 Mass. App. 166, 788 N. E. 2d 977, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Stevens, O‘Connor, Souter, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined.

Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.

______ Facts of the Case Melvin T. Smith was tried in for illegal possession of a firearm, among other offenses.

During the trial the judge ruled Smith was not guilty because the state failed to introduce direct evidence of the gun's length - therefore not proving the gun Smith possessed met the statutory definition of a firearm. The state later pointed to the state supreme court's ruling that testimony that a gun was a pistol or revolver was sufficient evidence to allow Page 22 of 77

a firearm charge to go to the jury. Because a witness had testified that Smith's gun was a pistol, the judge reversed and sent the possession charge to the jury.

Smith appealed and argued the judge's reversal of the not guilty ruling on the possession charge violated the Fifth Amendment's doubly jeopardy clause, which prohibited successive prosecutions. The state court of appeals rejected Smith's argument and ruled no Fifth Amendment violation occurred because the judge's reversal did not require a second proceeding.

Question Is the double jeopardy clause's prohibition against successive prosecutions, found in the Fifth Amendment, violated when a judge rules that the defendant is not guilty because the government's evidence is insufficient but later in the trial reverses her finding of not guilty?

Argument Conclusion Decision: 5 votes for Smith, 4 vote(s) against Legal provision: Double Jeopardy Yes. In a 5-4 opinion delivered by Justice Antonin Scalia, the Court held that the double jeopardy clause barred the judge from reconsidering the acquittal on the firearm charge later in the trial. Smith was subjected to successive prosecutions because, according to Court precedent, the midtrial ruling was an acquittal and the submission of the count to the jury was a further proceeding dealing with guilt or innocence. While the double jeopardy clause did allow states to create a procedure for reconsidering a midtrial determination of insufficiency of proof, Massachusetts had no such procedure at the time of Smith's trial.

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Self-Incrimination -

nor shall be compelled in any criminal case to be a witness against himself,

The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to "an accusation or charge of crime," or as involving oneself (or another person) "in a criminal prosecution or the danger thereof." The privilege against compelled self-incrimination is defined as "the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself. ... " To "plead the Fifth" is to refuse to answer any question because "the implications of the question, in the setting in which it is asked" lead a claimant to possess a "reasonable cause to apprehend danger from a direct answer", believing that "a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."

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

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

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In South African law the right to silence originating from English common law has been entrenched in Section 35 of the Constitution of the Republic of South Africa, 1996.

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."

Legal Proceedings and Congressional Hearings

The Fifth Amendment privilege against compulsory selfincrimination applies when an individual is called to testify in a legal proceeding.

The Supreme Court ruled that the privilege applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court, and whether the proceeding itself is criminal or civil.

The right to remain silent 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 Page 26 of 77

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 American Mafia.

Statements Made to Non-Governmental Entities The privilege against self-incrimination does not protect an individual from being suspended from membership in a non-governmental, self-regulatory organization (SRO), such as the New York Stock Exchange (NYSE), where the individual refuses to answer questions posed by the SRO. An SRO itself is not a court of law, and cannot send a person to jail. SROs, such as the NYSE and the National Association of Securities Dealers (NASD), are generally not considered to be state actors. See United States v. Solomon, D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., and Marchiano v. NASD SROs also lack subpoena powers. They rely heavily on requiring testimony from individuals by wielding the threat of loss of membership or a bar from the industry (permanent, if decided by the NASD) when the individual asserts his or her Fifth Amendment privilege against compelled self-incrimination. If a person chooses to provide statements in testimony to the SRO, the SRO may provide information about those statements to law enforcement agencies, who may then use the statements in a prosecution of the individual.

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. However, by 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. The Supreme Court has repeatedly overruled convictions based on such confessions, in cases such as 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, the Court held that an "unfair and inherently coercive context" including a prolonged interrogation rendered a confession inadmissible.

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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 advised 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 before being questioned as to the specifics of the crime.

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 neither is such a presence 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 Page 28 of 77

custody analysis was not objectively unreasonable". In her concurring opinion Justice O'Connor wrote that a suspect's age may indeed "be relevant to the 'custody' inquiry"; 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".

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 where a state's stop and identify statutes obligate disclosure of such information.

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

The Act of Production Doctrine Under the Act of Production Doctrine, the act of an individual in producing documents or materials (e.g., in response to a subpoena) may have a "testimonial aspect" for purposes of the individual's right to assert the Fifth Amendment privilege against selfincrimination to the extent that the individual's act of production provides information not already in the hands of law enforcement personnel about the (1) existence; (2) custody; or (3) authenticity, of the documents or materials produced. See United States v.

Hubbell.

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Refusal to Testify in a Criminal Case In Griffin v. California (1965), the Supreme Court ruled that a prosecutor may not ask the jury to draw an inference of guilt from a defendant's refusal to testify in his own defense. 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 the privilege against compelled self-incrimination in a civil court case, there are consequences to the assertion of the privilege in such an 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, "[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, 'Silence is often evidence of the most persuasive character.'" "'Failure to contest an assertion ... is considered evidence of acquiescence ... if it would have been natural under the circumstances to object to the assertion in question.'"

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.

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Some civil cases are considered "criminal cases" for the purposes of the Fifth Amendment. In Boyd v. United States, the U.S. 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."

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, 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."

In Garner v. United States, 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 selfincrimination 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."

Sullivan and Garner are viewed 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.) The United States Court of Appeals for the Eleventh Circuit has stated: "Although the source of income might be privileged, the amount must be reported." The U.S. Court of Appeals for the Fifth Circuit has stated: ". ... the amount of a taxpayer's income is not privileged even though the source of income may be, and Fifth Amendment rights can be exercised in compliance with the tax laws "by simply listing his alleged ill-gotten gains in the space provided for 'miscellaneous' income on his tax form." In another case, the Court of Appeals for the Fifth Circuit stated: "While the source of some of [the defendant] Johnson's income may have been privileged, assuming that the jury believed his uncorroborated testimony that he had illegal dealings in gold in 1970 and 1971, the Page 31 of 77

amount of his income was not privileged and he was required to pay taxes on it." In 1979, the U.S. Court of Appeals for the Tenth Circuit stated: "A careful reading of Sullivan and Garner, therefore, is that the self-incrimination privilege can be employed to protect the taxpayer from revealing the information as to an illegal source of income, but does not protect him from disclosing the amount of his income."

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, 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, 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 this case, 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, the court struck down the Marijuana Tax Act because its record keeping statute required self-incrimination.

In Haynes v. United States, 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.

Computer Passwords Courts have given conflicting decisions on whether forced disclosure of computer passwords is a violation of the Fifth Amendment.

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 Page 32 of 77

even the existence of one, if the production of that password could be deemed a selfincriminating "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.

In January 2012 a federal judge in Denver ruled that a bank-fraud suspect was required to give an unencrypted copy of a laptop hard drive to prosecutors. However, in February 2012 the Eleventh Circuit ruled otherwise - finding that requiring a defendant to produce an encrypted drive's password would violate the Constitution, becoming the first federal circuit court to rule on the issue. In April 2013, a District Court magistrate judge in Wisconsin refused to compel a suspect to provide the encryption password to his hard drive after FBI agents had unsuccessfully spent months trying to decrypt the data.

Other Corporations may also be compelled to maintain and turn over records; the Supreme Court has held that the Fifth Amendment protections against selfincrimination extend only to "natural persons." 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. 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 Page 33 of 77

the questions, then the answers cannot be used in criminal prosecution of the employee. This principle was developed in Garrity v. New Jersey, 385 U.S. 493 (1967).

The rule is most commonly applied to public employees such as police officers.

In Boyd v. United States, the U.S. 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 the right was non-self-executing and a criminal suspect must specifically invoke the right against selfincrimination in order for constitutional protections to apply. 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 Fifth Amendment rights. Ironically, suspects must 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 the right to remain silent.

Salinas v. Texas The Supreme Court extended the standard from Berghuis v. Thompkins in Salinas v.

Texas in 2013, holding that a suspect's silence in response to a specific question posed during an interview with police when the suspect was not in custody and the suspect had been voluntarily answering other questions during that interview could be used against him in court where he did not explicitly invoke his Fifth Amendment right to silence in response to the specific question. Of the five justices who concluded that the suspect's silence could be used against him in these circumstances, Justices Alito, Roberts and Kennedy concluded that the defendant's Fifth Amendment claim failed because he did not expressly invoke the privilege. The other two Justices, Thomas and Scalia, concluded that the defendant's claim would fail even if he had invoked the privilege, on the theory that the prosecutor's comment at the trial—regarding the defendant's silence in response to a question during the police interview—did not compel the defendant to give self-incriminating testimony. The Court stated that there was no "ritualistic formula" necessary to assert this privilege, but that a person could not do so "by simply standing mute." If an individual fails to invoke his right, and is later charged with a crime, the prosecution may use his silence at trial as evidence of his guilt.

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Miranda v. Arizona, 384 U.S. 436 (1966) Argued February 28-March 1, 1966 Decided June 13, 1966* Syllabus In each of these cases, the defendant, while in police custody, was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and effective warning of his rights at the outset of the interrogation process. In all four cases, the questioning elicited oral admissions, and, in three of them, signed statements as well, which were admitted at their trials. All defendants were convicted, and all convictions, except in No. 584, were affirmed on appeal.

Held: 1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination. Pp. 444-491. (a) The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating, and works to undermine the privilege against selfincrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. Pp. 445-458. (b) The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system, and guarantees to the individual the "right to remain silent unless he chooses to speak in the unfettered exercise of his own will," during a period of custodial interrogation as well as in the courts or during the course of other official investigations. Pp. 458-465. (c) The decision in Escobedo v. Illinois, 378 U. S. 478, stressed the need for protective devices to make the process of police interrogation conform to the dictates of the privilege. Pp. 465-466. (d) In the absence of other effective measures, the following procedures to safeguard the Fifth Amendment privilege must be observed: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him. Pp. 467-473.

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(e) If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present. Pp. 473-474. (f) Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his right to counsel. P. 475. (g) Where the individual answers some questions during in-custody interrogation, he has not waived his privilege, and may invoke his right to remain silent thereafter. Pp. 475-476. (h) The warnings required and the waiver needed are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement, inculpatory or exculpatory, made by a defendant. Pp. 476-477.

2. The limitations on the interrogation process required for the protection of the individual's constitutional rights should not cause an undue interference with a proper system of law enforcement, as demonstrated by the procedures of the FBI and the safeguards afforded in other jurisdictions. Pp. 479-491.

3. In each of these cases, the statements were obtained under circumstances that did not meet constitutional standards for protection of the privilege against selfincrimination. Pp. 491-499.

98 Ariz. 18, 401 P.2d 721; 15 N.Y.2d 970, 207 N.E.2d 527; 16 N.Y.2d 614, 209 N.E.2d 110; 342 F.2d 684, reversed; 62 Cal.2d 571, 400 P.2d 97, affirmed.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

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Salinas v. Texas in the U.S. Supreme Court: Does the Fifth Amendment Protect the Right to Remain Silent?

Part One in a Two-Part Series of Columns - by Sherry F. Colb, Esq. Last month, the U.S. Supreme Court granted review in Salinas v. Texas, a case that raises what might seem like a very basic question about the Fifth Amendment: Does its guarantee of protection against compelled self-incrimination protect a suspect‘s ―right to remain silent‖ outside of the custodial setting? That is, does a suspect who has neither received any Miranda warnings nor is currently in custody have a right not to speak? In this column, I will examine this question and analyze whether, under existing precedents, the right to silence ought to receive the protection that the petitioner, Genovevo Salinas, seeks in this case.

In one respect, the question posed about the ―right to remain silent‖ is misleading.

Given that there is a right to avoid compelled self-incrimination just about whenever one is engaged in a conversation with the police or with other government agents, it necessarily follows that the police may not force a silent person to speak and answer questions that call for self-incriminating responses. Yet there is more to the asserted right to silence than the right not to be literally compelled (by threats of force) to say self-incriminating things. Readers may ask, what more is there?

Primarily, there is the question of what happens to a person who does choose to remain silent. Police cannot literally force anyone to say something that he chooses not to say.

Speaking, unlike reflexive action, is a voluntary behavior undertaken in response to the available options. If one of the options is getting killed, of course, then we say that speaking is not ―voluntarily‖ chosen, but that is actually a shorthand way of saying that it is morally and constitutionally unacceptable to threaten to kill someone as the alternative to his answering police questions. From a physiological standpoint, he does technically choose to speak, even in these circumstances.

By the same token, if ―voluntary‖ meant ―freely chosen without any inducement whatsoever from the police,‖ then virtually any incriminating response to a police officer‘s questions would fail the test of voluntariness, because few suspects spontaneously approach a law enforcement officer and unload unsolicited incriminating disclosures. Yet, outside of custody, we consider most responses to police questions ―voluntary‖ for Fifth Amendment purposes; we do not believe that the pressure inherent in an officer‘s simply posing a question is sufficient to render the response a product of constitutionally impermissible ―compulsion.‖

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The Facts of Salinas Now consider the facts of the case before the Supreme Court. In 1992, police came to suspect Genovevo Salinas of murdering two men, Juan and Hector Garza. Pursuing a lead, police visited the home of Salinas‘s parents, where he too resided, and received consent to search the home. During the officers‘ visit, Salinas‘s father handed over a shotgun to the police, and Salinas himself voluntarily accompanied the officers to the police station for an interview.

Police did not read Salinas any Miranda warnings, nor were they required to do so, as he was not in custody. For almost an hour, Salinas answered a series of questions that the police posed. At one point, however, Salinas became silent. Police had just asked him ―if the shotgun [his father had given them] would match the shells recovered at the scene of the murder.‖ In response to this question, Salinas looked down and said nothing.

The police subsequently received a ballistics report that did identify a match between the casings from the murder scene and the shotgun from Salinas‘s house. The State subsequently charged Salinas with two counts of murder. Police were unable to find Salinas to arrest and bring him to trial, however, for another fifteen years. The trial he did have then ended in a mistrial, and a second prosecution began.

In closing argument during Salinas‘s second trial, the prosecution emphasized the fact that Salinas had remained silent when police asked whether the shotgun from his home would match the shells recovered from the murder scene. The government said the following to the jury: ―The police officer testified that he wouldn‘t answer that question. . . . You know, if you asked somebody—there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person‘s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no.

An innocent person is going to say: What are you talking about? I didn‘t do that. I wasn‘t there. He didn‘t respond that way. He didn‘t say: No, it‘s not going to match up. It‘s my shotgun. It‘s been in our house. What are you talking about? He wouldn‘t answer that question.‖ At the end of the second trial, the jury came back with a guilty verdict, and Salinas appealed. He claimed on appeal that the prosecution‘s comment on the defendant‘s silence unconstitutionally penalized Salinas‘s exercise of his Fifth Amendment right to remain silent.

The Relevant Fifth Amendment Precedents This case does not arise in a vacuum. The Supreme Court has decided numerous cases determining whether and when silence may be introduced as evidence against a Page 38 of 77

criminal defendant without running afoul of the Fifth Amendment right against compelled self-incrimination.

For Salinas‘s purposes, the most promising case is Griffin v. California, 380 U.S. 609 (1965). The Court there held that a prosecutor may not comment to a jury on the defendant‘s failure to take the witness stand during his own criminal trial. The defendant, based on Griffin, thus has a right not only to remain silent at his trial but also to have the prosecutor refrain from asking the jury to draw any negative inferences from his silence.

The Court in Griffin concluded that expressly asking the jury to draw a negative inference imposes an unconstitutional cost on the defendant‘s exercise of the right to remain silent and thereby pressures him to take the witness stand, notwithstanding his theoretical right not to. Justice Douglas said for the Court that ―comment on the refusal to testify is a remnant of the ‗inquisitorial system of criminal justice,‘ [internal citation omitted] which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.‖ Other precedents, perhaps more relevant to Salinas‘s facts, address a defendant‘s silence in the pre-trial investigation period. In Doyle v. Ohio, 426 U.S. 610(1976) the Supreme Court held that when a defendant has been placed in custody and given Miranda warnings, his failure to speak may not be introduced in evidence at his subsequent criminal trial. The Court reasoned that, first, the Miranda warnings implicitly promise that silence will not be used against the suspect (by warning that giving up the right to silence will be used against him), and that, second, after the warnings have been given, a decision to remain silent is ―insolubly ambiguous‖ and therefore cannot legitimately be offered in support of an inference that the suspect was admitting his guilt. After all, once advised that we have the right to remain silent, our silence may merely reflect our decision to take the advice we have received.

Jefferson Doyle thus experienced a violation of his Due Process rights when the prosecutor introduced evidence of what the defendant failed to say in custody in the wake of his warnings. Notably, the Court, in deciding Doyle, relied on Due Process rather than the Fifth Amendment right against compelled self-incrimination. This feature of Doyle is important, because it suggests that outside of the courtroom, remaining silent may not have the same Fifth Amendment status as it does inside the courtroom.

Introducing post-Miranda silence at a criminal trial, in other words, may not unconstitutionally burden the right against compelled self-incrimination; it may instead only breach an implicit promise contained in the warnings and offer ambiguous evidence to signify something it may well not signify.

This distinction becomes important when we turn to two other pretrial silence cases, Jenkins v. Anderson,447 U.S. 231 (1980) and Fletcher v. Weir, 455 U.S. 603 (1982).

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In Jenkins, the Supreme Court held that the prosecution could lawfully introduce into evidence a defendant‘s failure to come forward prior to his arrest to tell the authorities of his alleged self-defense justification for homicide, a failure offered to impeach the credibility of the defendant‘s trial testimony claiming self-defense. In Jenkins, the defendant had not received Miranda warnings and was not in custody at the time of his silence.

In Weir, the Supreme Court held that a defendant‘s post-arrest silence prior to having received the Miranda warnings could also be introduced at trial to impeach the credibility of a self-defense/accidental homicide story that the defendant told as a witness on his own behalf. In both Jenkins and Weir, silence could come into evidence, in part because police had not implicitly promised otherwise (by giving warnings to that effect), and in part because the silence was offered to impeach the criminal defendant‘s credibility rather than to affirmatively prove his guilt.

The defendant has, understandably, chosen to focus on the fact that the above cases involved the use of a defendant‘s silence to impeach his credibility rather than to affirmatively prove his guilt. Impeachment use implicates the government‘s interest in preventing perjury by the defendant, so it is conceptually distinct from the use of evidence to help demonstrate the defendant‘s commission of the crime. Yet this distinction may not ultimately inure to the defendant‘s benefit. Consider the impeachment use of otherwise inadmissible evidence in a different context.

Turn to the introduction of statements taken in violation of Miranda. Here, a police officer takes a suspect into custody and then fails to comply with the requirements of Miranda, by—for example—interrogating the suspect without first giving her the warnings. In such a case, the statements that the defendant makes in response to interrogation are inadmissible to prove her guilt, under the holding of Miranda itself.

Nonetheless, the Court ruled in Harris v. New York, 401 U.S. 222 (1971) if the defendant takes the witness stand and testifies in a manner that contradicts what she earlier said in response to the officer‘s Miranda-violating interrogation (for example, by testifying ―I am innocent,‖ after having admitted the crime under interrogation), her earlier statements are admissible, though only for the purpose of impeaching the credibility of her in-court declaration of innocence (not for the purpose of proving her guilt—got that?).

Yet a ―compelled‖ statement, for purposes of the Fifth Amendment, made in or out of custody, would be suppressed completely, regardless of whether it is offered for impeachment or to prove guilt. Under a Supreme Court case called New Jersey v.

Portash, 440 U.S. 450 (1979) even the impeachment use of compelled testimony violates the Fifth Amendment. The upshot of the contrast between permitting impeachment with un-Mirandized statements and prohibiting impeachment with truly compelled statements is telling: constitutionally ―compelled‖ statements may not come into evidence, period.

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If the Court is willing to admit evidence for impeachment purposes, it therefore follows that its exclusion in the State‘s case in chief is something other than constitutionally required—it is, in the Court‘s language, a deterrent instrument for motivating better governmental conduct outside the courtroom.

The distinction between constitutionally required exclusion and exclusion as a means of motivating police to behave better is important when we consider the introduction of the defendant‘s silence in Salinas, the case now before the Supreme Court. The ―compulsion‖ argument is that introducing the defendant‘s silence at trial serves to impose a cost on the exercise of the suspect‘s right not to answer an officer‘s questions, much in the way that asking the jury to draw adverse inferences from the defendant‘s failure to take the witness stand imposes a cost on the decision not to testify at trial.

The problem with this argument, however, is that introducing the silence for impeachment purposes also imposes a cost on the defendant‘s exercise of the right to remain silent. (Indeed, it imposes an additional cost on the constitutional right to testify in one‘s own defense.) Yet the Court has permitted that cost to be imposed in both Jenkins and Weir, thus signaling that the cost does not amount to ―compulsion‖ under the Fifth Amendment, which would have altogether precluded its admission in evidence. It is difficult, moreover, to imagine a suspect making the following calculation: ―I really want to remain silent. I know that my silence can be introduced against me for impeachment purposes. On the other hand, I know as well that my silence may not be used against me as affirmative proof of my guilt. Therefore, I feel empowered to remain silent, understanding that my silence is admissible only for impeachment purposes.‖ Rather than assessing the relative costs on the defendant of different uses of the defendant‘s silence, the Court‘s decisions seem to reflect a cost/benefit analysis of excluding versus admitting evidence for different purposes, as a means of motivating police (rather than suspects) to behave in a particular way.

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Due Process of Law -

nor be deprived of life, liberty, or property, without due process of law;

The Fifth and Fourteenth Amendments to the United States Constitution contain a Due Process Clause. Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law. The Supreme Court of the United States interprets the clauses however more broadly because these clauses provide four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.

Scope The Supreme Court has interpreted those two clauses identically, as Justice Felix Frankfurter once explained in a concurring opinion: ―To suppose that ‗due process of law‘ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.‖ In 1855, the Supreme Court explained that, to ascertain whether a process is due process, the first step is to ―examine the constitution itself, to see whether this process be in conflict with any of its provisions . . . .‖ Due process also applies to the creation of taxing districts, as taxation is a deprivation of property. Due process typically requires public hearings prior to the creation of a taxing district.

"State"

Due process applies to Puerto Rico.

"Person"

The due process clauses apply to "legal persons" (that is, corporate personhood) as well as to individuals. Fifth Amendment due process was first applied to corporations in 1893 by the Supreme Court in Noble v. Union River Logging. Noble was followed by in Santa Clara County v. Southern Pacific Railroad in 1886.

"Liberty"

The U.S. Supreme Court has interpreted the term "liberty" in the due process clauses broadly: "Although the Court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective."

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State Actor The prohibitions of the due process clauses apply only to the actions of state actors, and not against private citizens.

Procedural Due Process This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. The article "Some Kind of Hearing" written by Judge Henry Friendly created a list of basic due process rights "that remains highly influential, as to both content and relative priority." These rights, which apply equally to civil due process and criminal due process, are: 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

An unbiased tribunal.

Notice of the proposed action and the grounds asserted for it.

Opportunity to present reasons why the proposed action should not be taken.

The right to present evidence, including the right to call witnesses.

The right to know opposing evidence.

The right to cross-examine adverse witnesses.

A decision based exclusively on the evidence presented.

Opportunity to be represented by counsel.

Requirement that the tribunal prepare a record of the evidence presented.

Requirement that the tribunal prepare written findings of fact and reasons for its decision.

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Civil Procedural Due Process At a basic level, procedural due process is essentially based on the concept of "fundamental fairness." For example, in 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."

As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.

Or, to put it more simply, where an individual is facing a deprivation of life, liberty, or property, procedural due process mandates that he or she is entitled to adequate notice, a hearing, and a neutral judge.

The Supreme Court has formulated a balancing test to determine the rigor with which the requirements of procedural due process should be applied to a particular deprivation, for the obvious reason that mandating such requirements in the most expansive way for even the most minor deprivations would bring the machinery of government to a halt. The Court set out the test as follows: "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."

Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever.

A significant portion of U.S. constitutional law is therefore directed to what kinds of connections to a state are enough for that state's assertion of jurisdiction over a nonresident to comport with procedural due process.

The requirement of a neutral judge has introduced a constitutional dimension into the question of whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the due process clause of the Fourteenth Amendment requires a judge to recuse himself on account of a potential or actual conflict of interest. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia could not participate in a case involving a major donor to his election to that court.

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Criminal Procedural Due Process In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.

An example for criminal due process rights is the case Vitek v.

Jones, 445 U.S. 480 (1980). The due process clause of the Fourteenth Amendment requires certain procedural protections for state prisoners who may be transferred involuntarily to a state mental hospital for treatment of a mental disease or defect, such protections including written notice of the transfer, an adversary hearing before an independent decisionmaker, written findings, and effective and timely notice of such rights. As established by the district court and upheld by the U.S. Supreme Court in Vitek v. Jones, these due process rights include: 1.

2.

3.

4.

5.

6.

7.

Written notice to the prisoner that a transfer to a mental hospital is being considered; A hearing, sufficiently after the notice to permit the prisoner to prepare, at which disclosure to the prisoner is made of the evidence being relied upon for the transfer and at which an opportunity to be heard in person and to present documentary evidence is given; An opportunity at the hearing to present testimony of witnesses by the defense and to confront and crossexamine witnesses called by the state, except upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or crossexamination; An independent decisionmaker; A written statement by the factfinder as to the evidence relied on and the reasons for transferring the inmate; Availability of legal counsel, furnished by the state, if the inmate is financially unable to furnish his own (It [21] must be noted however that a majority of Justices rejected this right to state-furnished counsel. ); and Effective and timely notice of all the foregoing rights.

______ Vitek v. Jones, 445 U.S. 480 (1980) Vitek v. Jones No. 78-1155 Argued December 3, 1979 Decided March 25, 1980 445 U.S. 480 Syllabus Appellee, a convicted felon, was transferred from state prison to a mental hospital pursuant to a Nebraska statute (ยง 83-180(1)) which provides that, if a designated physician or psychologist finds that a prisoner "suffers from a mental disease or defect" Page 46 of 77

that "cannot be given proper treatment" in prison, the Director of Correctional Services may transfer the prisoner to a mental hospital. In an action challenging the constitutionality of ยง 83-180(1) on procedural due process grounds, the District Court declared the statute unconstitutional as applied to appellee, holding that transferring him to the mental hospital without adequate notice and opportunity for a hearing deprived him of liberty without due process of law contrary to the Fourteenth Amendment, and that such transfers must be accompanied by adequate notice, an adversary hearing before an independent decisionmaker, a written statement by the factfinder of the evidence relied on and the reasons for the decision, and the availability of appointed counsel for indigent prisoners. The court permanently enjoined the State from transferring appellee (who meanwhile had been transferred back to prison) to the mental hospital without following the prescribed procedures. Subsequently, appellee was paroled on condition that he accept mental treatment, but he violated that parole and was returned to prison. Relying on appellee's history of mental illness and the State's representation that he was a serious threat to his own and others' safety, the District Court held that the parole and revocation thereof did not render the case moot, because appellee was still subject to being transferred to the mental hospital.

Held: The judgment is affirmed as modified. Pp. 445 U. S. 486-497; 445 U. S. 497-500.

Affirmed as modified.

MR. JUSTICE WHITE delivered the opinion of the Court with respect to Parts I, II, III, IV-A, and V, concluding that: 1. The District Court properly found that the case is not moot. The reality of the controversy between appellee and the State has not been lessened by the cancellation of his parole and his return to prison, where he is protected from further transfer by the District Court's judgment Page 445 U. S. 481 and injunction. Under these circumstances, it is not "absolutely clear," absent the injunction, that the State's alleged wrongful behavior could not reasonably be expected to recur. Pp. 445 U. S. 486-487.

2. The involuntary transfer of appellee to a mental hospital implicates a liberty interest that is protected by the Due Process Clause of the Fourteenth Amendment. Pp. 445 U. S. 487-494. (a) The District Court properly identified a liberty interest rooted in ยง 83-180(1), under which a prisoner could reasonably expect that he would not be transferred to a mental hospital without a finding that he was suffering from a mental illness for which he could not secure adequate treatment in prison. The State's reliance on the opinion of a designated physician or psychologist for determining whether the conditions warranting transfer exist neither removes the prisoner's interest from due process protection nor Page 47 of 77

answers the question of what process is due under the Constitution. Pp. 445 U. S. 488491. (b) The District Court was also correct in holding that, independently of ยง 83-180(1), the transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections. Involuntary commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual. While a conviction and sentence extinguish an individual's right to freedom from confinement for the term of his sentence, they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections. Here, the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections.

Pp. 491-494.

3. The District Court properly identified and weighed the relevant factors in arriving at its judgment. Pp. 445 U. S. 495-496. (a) Although the State's interest in segregating and treating mentally ill patients is strong, the prisoner's interest in not being arbitrarily classified as mentally ill and subjected to unwelcome treatment is also powerful, and the risk of error in making the determinations required by ยง 83-180(1) is substantial enough to warrant appropriate procedural safeguards against error. P. 445 U. S. 495. (b) The medical nature of the inquiry as to whether or not to transfer a prisoner to a mental hospital does not justify dispensing with due process requirements. P. 445 U. S. 495.

Page 445 U. S. 482 (c) Because prisoners facing involuntary transfer to a mental hospital are threatened with immediate deprivation of liberty interests, and because of the risk of mistaken transfer, the District Court properly determined that certain procedural protections, including notice and an adversary hearing, were appropriate in the circumstances present in this case. Pp. 445 U. S. 495-496.

MR. JUSTICE WHITE, joined by MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE STEVENS, concluded in Part IV-B that it is appropriate that counsel be provided to indigent prisoners whom the State seeks to treat as mentally ill. Such a prisoner has an even greater need for legal assistance than does a prisoner who is illiterate and uneducated, because he is more likely to be unable to understand or exercise his rights. Pp. 445 U. S. 496-497.

MR. JUSTICE POWELL concluded that, although the State is free to appoint a licensed attorney to represent a prisoner who is threatened with involuntary transfer to a mental Page 48 of 77

hospital, it is not constitutionally required to do so, and that due process will be satisfied so long as such a prisoner is provided qualified and independent assistance. Pp. 445 U. S. 497-500.

WHITE, J., announced the Court's judgment and delivered the opinion of the Court with respect to Parts I, II, III, IV-A, and V, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined, and an opinion with respect to Part IV-B, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in part, post, p. 445 U. S. 497. STEWART, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 445 U. S. 500. BLACKMUN, J., filed a dissenting opinion, post, p. 445 U. S. 501.

Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.

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Substantive Due Process By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that ―it was not left to the legislative power to enact any process which might be devised. The due process article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‗due process of law‘ by its mere will.‖ The term "substantive due process" (SDP) is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial review under the due process clause. The term "substantive due process" began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions.

SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions typically assert that those liberties ought to be left to the more politically accountable branches of government.

Courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are ―implicit in the concept of ordered liberty.‖ Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or ―are deeply rooted‖ in American society.

The courts have largely abandoned the Lochner era approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.

Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are:   

the first eight amendments in the Bill of Rights (e.g. the Eighth Amendment); restrictions on the political process (e.g. the rights of voting, association, and free speech); and the rights of ―discrete and insular minorities.‖

The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is Page 50 of 77

not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid.

If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.

Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v.

Connecticut (1965), wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights. The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the due process clause as a basis for various unenumerated privacy rights.

Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring in Griswold. ______

United States v. Carolene Products Co., 304 U.S. 144 (1938) United States v. Carolene Products Co. No. 640 Argued April 6, 1938 Decided April 25, 1938 304 U.S. 144 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS Syllabus The Filled Milk Act of Congress of Mar. 4, 1923, defines the term Filled Milk as meaning any milk, cream, or skimmed milk, whether or not condensed or dried, etc., to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, dried, etc.; it declares that Filled Milk, as so defined, "is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public", and it forbids and penalizes the shipment of such Page 51 of 77

Filled Milk in interstate commerce. Defendant was indicted for shipping interstate certain packages of an article described in the indictment as a compound of condensed skimmed milk and coconut oil made in the imitation or semblance of condensed milk or cream, and further characterized by the indictment in the words of the statute, as "an adulterated article of food, injurious to the public health."

Held: Page 304 U. S. 145 1. That upon its face, and as supported by judicial knowledge, including facts found in the reports of the congressional committees, the Act is presumptively within the scope of the power to regulate interstate commerce and consistent with due process.

Demurrer to the indictment should have been overruled. Hebe Co. v. Shaw,248 U. S. 297. P. 304 U. S. 147.

2. It is no valid objection that the prohibition of the Act does not extend to oleomargarine or other butter substitutes in which vegetable fats or oils replace butter. P. 304 U. S. 151.

3. The statutory characterization of filled milk as injurious to health and as a fraud upon the public may, for the purposes of this case, be considered as a declaration of legislative findings deemed to support the Act as a constitutional exertion of the legislative power, aiding informed judicial review by revealing the rationale of the legislation, as do the reports of legislative committees. P. 304 U. S. 152.

7 F.Supp. 500, reversed.

APPEAL under the Criminal Appeals Act from a judgment sustaining a demurrer to an indictment.

MR. JUSTICE STONE delivered the opinion of the Court The question for decision is whether the "Filled Milk Act" of Congress of March 4, 1923 (c. 262, 42 Stat. 1486, 21 U.S.C. ยง 61-63), [Footnote 1] which prohibits the shipment in Page 304 U. S. 146 interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream, transcends the power of Congress to regulate interstate commerce or infringes the Fifth Amendment.

Appellee was indicted in the district court for southern Illinois for violation of the Act by the shipment in interstate commerce of certain packages of "Milnut," a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream. The indictment states, in the words of the statute, that Milnut "is an Page 52 of 77

adulterated article of food, injurious to the public health," and that it is not a prepared food product of the type excepted from the prohibition of the Act. The trial court sustained a demurrer to the indictment on the authority of an earlier case in the same court, United States v. Carolene Products Co., 7 F.Supp. 500. The case was brought here on appeal under the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, 18 U.S.C. ยง 682. The Court of Appeals for the Seventh Circuit has meanwhile, in another case, upheld the Filled Milk Act as an appropriate exercise of the commerce power in Carolene Products Co. v. Evaporated Milk Assn., 93 F. (2d) 202.

Appellee assails the statute as beyond the power of Congress over interstate commerce, and hence an invasion of a field of action said to be reserved to the states by the Tenth Amendment. Appellee also complains that the Page 304 U. S. 147 statute denies to it equal protection of the laws and, in violation of the Fifth Amendment, deprives it of its property without due process of law, particularly in that the statute purports to make binding and conclusive upon appellee the legislative declaration that appellee's product "is an adulterated article of food injurious to the public health and its sale constitutes a fraud on the public."

First. The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 196, and extends to the prohibition of shipments in such commerce. Reid v. Colorado,187 U. S. 137; Lottery Case,188 U. S. 321; United States v. Delaware & Hudson Co.,213 U. S. 366; Hope v. United States,227 U. S. 308; Clark Distilling Co. v. Western Maryland R. Co.,242 U. S. 311; United States v. Hill,248 U. S. 420; McCormick & Co. v. Brown,286 U. S. 131. The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v.

Ogden, supra,22 U. S. 196. Hence, Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals or welfare, Reid v.

Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States,220 U. S. 45; Hope v. United States, supra, or which contravene the policy of the state of their destination. Kentucky Whip & Collar Co. v. Illinois Central R. Co.,299 U. S. 334. Such regulation is not a forbidden invasion of state power either because its motive or its consequence is to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by the due process clause of the Fifth Amendment. And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States,239 U. S. 510, 239 U. S. 514; Hamilton v. Kentucky Page 304 U. S. 148

Page 53 of 77

Distilleries & Warehouse Co., 251 U. S. 146, 251 U. S. 156. The prohibition of the shipment of filled milk in interstate commerce is a permissible regulation of commerce, subject only to the restrictions of the Fifth Amendment.

Second. The prohibition of shipment of appellee's product in interstate commerce does not infringe the Fifth Amendment. Twenty years ago, this Court, in Hebe Co. v.

Shaw,248 U. S. 297, held that a state law which forbids the manufacture and sale of a product assumed to be wholesome and nutritive, made of condensed skimmed milk, compounded with coconut oil, is not forbidden by the Fourteenth Amendment.

The power of the legislature to secure a minimum of particular nutritive elements in a widely used article of food and to protect the public from fraudulent substitutions was not doubted, and the Court thought that there was ample scope for the legislative judgment that prohibition of the offending article was an appropriate means of preventing injury to the public.

We see no persuasive reason for departing from that ruling here, where the Fifth Amendment is concerned, and since none is suggested, we might rest decision wholly on the presumption of constitutionality. But affirmative evidence also sustains the statute. In twenty years, evidence has steadily accumulated of the danger to the public health from the general consumption of foods which have been stripped of elements essential to the maintenance of health. The Filled Milk Act was adopted by Congress after committee hearings, in the course of which eminent scientists and health experts testified. An extensive investigation was made of the commerce in milk compounds in which vegetable oils have been substituted for natural milk fat, and of the effect upon the public health of the use of such compounds as a food substitute for milk. The conclusions drawn from evidence presented at the hearings were embodied in reports of the Page 304 U. S. 149 House Committee on Agriculture, H.R. No. 365, 67th Cong., 1st Sess., and the Senate Committee on Agriculture and Forestry, Sen.Rep. No. 987, 67th Cong., 4th Sess. Both committees concluded, as the statute itself declares, that the use of filled milk as a substitute for pure milk is generally injurious to health and facilitates fraud on the public.

[Footnote 2] There is nothing in the Constitution which compels a legislature, either national or state, to ignore such evidence, nor need it disregard the other evidence which amply supports Page 54 of 77

the conclusions of the Congressional committees that the danger is greatly enhanced where an inferior product, like appellee's, is indistinguishable from Page 304 U. S. 150 a valuable food of almost universal use, thus making fraudulent distribution easy and protection of the consumer difficult. [Footnote 3] Page 304 U. S. 151 Here, the prohibition of the statute is inoperative unless the product is "in imitation or semblance milk, cream, or skimmed milk, whether or not condensed." Whether in such circumstances the public would be adequately protected by the prohibition of false labels and false branding imposed by the Pure Food and Drugs Act, or whether it was necessary to go farther and prohibit a substitute food product thought to be injurious to health if used as a substitute when the two are not distinguishable, was a matter for the legislative Judgment, and not that of courts. Hebe Co. v. Shaw, supra; South Carolina v.

Barnwell Bros. Inc.,303 U. S. 177. It was upon this ground that the prohibition of the sale of oleomargarine made in imitation of butter was held not to infringe the Fourteenth Amendment in Powell v. Pennsylvania,127 U. S. 678; Capital City Dairy Co. v. Ohio,183 U. S. 238. Compare McCray v. United States,195 U. S. 27, 195 U. S. 63; Purity Extract & Tonic Co. v. Lynch,226 U. S. 192.

Appellee raises no valid objection to the present statute by arguing that its prohibition has not been extended to oleomargarine or other butter substitutes in which vegetable fats or oils are substituted for butter fat. The Fifth Amendment has no equal protection clause, and even that of the Fourteenth, applicable only to the states, does not compel their legislatures to prohibit all like evils, or none. A legislature may hit at an abuse which it has found, even though it has failed to strike at another. Central Lumber Co. v.

South Dakota,226 U. S. 157, 226 U. S. 160; Miller v. Wilson,236 U. S. 373, 236 U. S. 384; Hall v. Geiger-Jones Co.,242 U. S. 539, 242 U. S. 556; Farmers & Merchants Bank v. Federal Reserve Bank,262 U. S. 649, 262 U. S. 661.

Page 304 U. S. 152 Third. We may assume for present purposes that no pronouncement of a legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis.

But such we think is not the purpose or construction of the statutory characterization of filled milk as injurious to health and as a fraud upon the public. There is no need to consider it here as more than a declaration of the legislative findings deemed to support and justify the action taken as a constitutional exertion of the legislative power, aiding Page 55 of 77

informed judicial review, as do the reports of legislative committees, by revealing the rationale of the legislation. Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. [Footnote 4] See Metropolitan Casualty Ins. Co. v.

Page 304 U. S. 153 Brownell,294 U. S. 580, 294 U. S. 584, and cases cited. The present statutory findings affect appellee n more than the reports of the Congressional committees, and since, in the absence of the statutory findings, they would be presumed, their incorporation in the statute is no more prejudicial than surplusage.

Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be male the subject of judicial inquiry, Boren's Farm Products Co. v. Baldwin,293 U. S. 194, and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. Chastleton Corporation v. Sinclair,264 U. S. 543. Similarly we recognize that the constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular Page 304 U. S. 154 article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition, Railroad Retirement Board v. Alton R. Co.,295 U. S. 330, 295 U. S. 349, 295 U. S. 351, 295 U. S. 352; see Whitney v. California,274 U. S. 357, 274 U. S. 379; cf. Morf v. Bingaman,298 U. S. 407, 298 U. S. 413, though the effect of such proof depends on the relevant circumstances of each case, as, for example, the administrative difficulty of excluding the article from the regulated class. Carmichael v.

Southern Coal & Coke Co.,301 U. S. 495, 301 U. S. 511-512; South Carolina v.

Barnwell Bros.,303 U. S. 177, 303 U. S. 192-193. But, by their very nature, such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. Here, the demurrer challenges the validity of the statute on its face, and it is evident from all the considerations presented to Congress, and those of which we may take judicial notice, that the question is at least debatable whether commerce in filled milk should be left unregulated, or in some measure restricted, or wholly prohibited. As that decision was for Congress, neither the finding of a court arrived at by weighing the evidence nor the verdict of a jury can be substituted for it.

Price v. Illinois,238 U. S. 446, 238 U. S. 452; Hebe Co. v. Shaw, supra,248 U. S. 303; Standard Oil Co. v. Marysville,279 U. S. 582, 279 U. S. 584; South Carolina v. Barnwell Page 56 of 77

Bros., Inc., supra,303 U. S. 191, citing Worcester County Trust Co. v. Riley,302 U. S. 292, 302 U. S. 299.

The prohibition of shipment in interstate commerce of appellee's product, as described in the indictment, is a constitutional exercise of the power to regulate interstate commerce. As the statute is not unconstitutional on its face the demurrer should have been overruled, and the judgment will be Reversed.

Page 304 U. S. 155 MR. JUSTICE BLACK concurs in the result and in all of the opinion except the part marked "Third."

MR. JUSTICE McREYNOLDS thinks that the judgment should be affirmed.

MR. JUSTICE CARDOZO and MR. JUSTICE REED took no part in the consideration or decision of this case.

[Footnote 1] The relevant portions of the statute are as follows: "Section 61. . . . (c) The term 'filled milk' means any milk cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated."

"Section 62. . . . It is hereby declared that filled milk, as herein defined, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to . . . ship or deliver for shipment in interstate or foreign commerce, any filled milk."

Section 63 imposes as penalties for violations "a fine of not more than $1,000 or imprisonment of not more than one year, or both . . ."

[Footnote 2] The reports may be summarized as follows: there is an extensive commerce in milk compounds made of condensed milk from which the butter fat has been extracted and an equivalent amount of vegetable oil, usually coconut oil, substituted. These compounds resemble milk in taste and appearance, and are distributed in packages resembling those in which pure condensed milk is distributed. By reason of the Page 57 of 77

extraction of the natural milk fat, the compounded product can be manufactured and sold at a lower cost than pure milk. Butter fat, which constitutes an important part of the food value of pure milk, is rich in vitamins, food elements which are essential to proper nutrition and are wanting in vegetable oils. The use of filled milk as a dietary substitute for pure milk results, especially in the case of children, in undernourishment, and induces diseases which attend malnutrition. Despite compliance with the branding and labeling requirements of the Pure Food and Drugs Act, there is widespread use of filled milk as a food substitute for pure milk. This is aided by their identical taste and appearance, by the similarity of the containers in which they are sold, by the practice of dealers in offering the inferior product to customers as being as good as or better than pure condensed milk sold at a higher price, by customers' ignorance of the respective food values of the two products, and, in many sections of the country, by their inability to read the labels placed on the containers. Large amounts of filled milk, much of it shipped and sold in bulk, are purchased by hotels and boarding houses, and by manufacturers of food products, such as ice cream, to whose customers labeling restrictions afford no protection.

[Footnote 3] There is now an extensive literature indicating wide recognition by scientists and dietitians of the great importance to the public health of butter fat and whole milk as the prime source of vitamins, which are essential growth producing and disease preventing elements in the diet. See Dr. Henry C. Sherman, The Meaning of Vitamin A, in Science, Dec. 21, 1928, p. 619; Dr. E. V. McCollum et al., The Newer Knowledge of Nutrition (1929 ed.), pp. 134, 170, 176, 177; Dr. A. S. Root, Food Vitamins (N.Car. State Board of Health, May 1931), p. 2; Dr. Henry C. Sherman, Chemistry of Food and Nutrition (1932), p. 367; Dr. Mary S. Rose, The Foundations of Nutrition (1933), p. 237.

When the Filled Milk Act was passed, eleven states had rigidly controlled the exploitation of filled milk, or forbidden it altogether. H.R. 365, 67th Cong., 1st Sess.

Some thirty-five states have now adopted laws which, in terms or by their operation, prohibit the sale of filled milk. Ala.Agri.Code, 1927, § 51, Art. 8; Ariz.Rev.Code, 1936 Supp., § 943y; Pope's Ark.Dig.1937, § 3103; Deering's Cal.Code, 1933 Supp., Tit. 149, Act 1943, p. 1302; Conn.Gen.Stat., 1930, § 2487, c. 135; Del.Rev.Code, 1935, § 649; Fla.Comp.Gen.Laws, 1927, §§ 3216, 7676; Ga.Code, 1933, § 42-511; Idaho Code, 1932, Tit. 36, §§ 502-504; Jones Ill.Stat.Ann., 1937 Supp., § 53.020(1), (2), (3); Burns Ind.Stat., 1933, § 35-1203; Iowa Code, 1935, § 3062; Kan.Gen.Stat., 1935, c. 65, § 707; Md.Ann.Code, Art. 27, § 281; Mass.Ann.Laws, 1933, § 17-A, c. 94; Mich.Comp.Laws, 1929, § 5358; Mason's Minn.Stat., 1927, § 3926; Mo.Rev.Stat., 1929, §§ 12408-12413; Mont.Rev.Code, Anderson and McFarland, 1935, c. 240, § 2620.39; Neb.Comp.Stat., 1929, § 81-1022; N.H.Pub.L.1926 v. 1, c. 163, § 37, p. 619; N.J.Comp.Stat., 1911-1924, § 8l-8j, p. 1400; Cahill's N.Y.Cons.Laws, 1930, § 60, c. 1; N.D. Comp.Laws, 1913-1925, Pol.Code, c. 38, § 2855(a) 1; Page's Ohio Gen.Code, § 12725; Purdon's Penna.Stat., 1936, Tit. 31, §§ 553, 582; S.D.Comp.Laws, 1929, c.192, § 7926-O, p. 2493; Williams Tenn.Code, 1934, c. 15, §§ 6549, 6551; Vernon's Tex.Pen.Code, Tit. 12, c. 2, Art. 713a; Utah Rev.Stat., 1933, §§ 3-10-59, 3-10-60; Vt.Pub.L., 1933, Tit. 34, c. 303, § 7724, p.

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1288; Va.1936 Code, § 1197c; W.Va.1932 Code, § 2036; Wis.Stat., 11th ed.1931, c.

98, § 98.07, p. 1156; cf. N.Mex.Ann.Stat., 1929, §§ 25-104, 25-108. Three others have subjected its sale to rigid regulations. Colo.L.1921, c. 30, § 1007, p. 440; Ore.1930 Code v. 2, c. XII, §§ 41-1208 to 41-1210; Remington's Wash.Rev.Stat. v. 7, Tit. 40, c.

13, §§ 6206, 6207, 6713, 6714, p. 360, et seq.

[Footnote 4] There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California,283 U. S. 359, 283 U. S. 369-370; Lovell v. Griffin,303 U. S. 444, 303 U. S. 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon,273 U. S. 536; Nixon v.

Condon,286 U. S. 73; on restraints upon the dissemination of information, see Near v.

Minnesota ex rel. Olson,283 U. S. 697, 283 U. S. 713-714, 283 U. S. 718-720, 283 U. S. 722; Grosjean v. American Press Co.,297 U. S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra,283 U. S. 369; Fiske v. Kansas,274 U. S. 380; Whitney v. California,274 U. S. 357, 274 U. S. 373378; Herndon v. Lowry,301 U. S. 242, and see Holmes, J., in Gitlow v. New York,268 U. S. 652, 268 U. S. 673; as to prohibition of peaceable assembly, see De Jonge v.

Oregon,299 U. S. 353, 299 U. S. 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters,268 U. S. 510, or national, Meyer v. Nebraska,262 U. S. 390; Bartels v. Iowa,262 U. S. 404; Farrington v.

Tokushige,273 U. S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v.

Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare 17 U. S. Maryland, 4 Wheat.

316, 17 U. S. 428; South Carolina v. Barnwell Bros.,303 U. S. 177, 303 U. S. 184, n 2, and cases cited.

MR. JUSTICE BUTLER. I concur in the result. Prima facie, the facts alleged in the indictment are sufficient to constitute a violation of the statute. But they are not sufficient conclusively to establish guilt of the accused. At the trial, it may introduce evidence to show that the declaration of the Act that the described product is injurious to public health and that the sale of it is a fraud upon the public are without any substantial foundation. Mobile, J. & K.C. R. Co. Page 59 of 77

v. Turnipseed,219 U. S. 35, 219 U. S. 43. Manley v. Georgia,279 U. S. 1, 279 U. S. 6.

The provisions on which the indictment rests should, if possible, be construed to avoid the serious question of constitutionality. Federal Trade Comm'n v. American Tobacco Co.,264 U. S. 298, 264 U. S. 307. Panama R. Co. v. Johnson,264 U. S. 375, 264 U. S. 390. Missouri Pacific R. Co. v. Boone,270 U. S. 466, 270 U. S. 472. Richmond Co. v.

United States,275 U. S. 331, 275 U. S. 346. If construed to exclude from interstate commerce wholesome food products that demonstrably are neither injurious to health nor calculated to deceive, they are repugnant to the Fifth Amendment. Weaver v.

Palmer Bros. Co.,270 U. S. 402, 270 U. S. 412-13. See People v. Carolene Products Co., 345 Ill. 166. Carolene Products Co. v. McLaughlin, 365 Ill. 62, 5 N.E.2d 447.

Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608. Carolene Products Co. v. Banning, 131 Neb. 429, 268 N.W. 313. The allegation of the indictment that Milnut "is an adulterated article of food, injurious to the public health," tenders an issue of fact to be determined upon evidence.

Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources. ______

Criticism of Substantive Due Process Critics of substantive due process often claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford. However, other critics contend that substantive due process was not used by the federal judiciary until after the Fourteenth Amendment was adopted in 1869. Advocates of substantive due process who assert that the doctrine was employed in Dred Scott claim that it was employed incorrectly. Additionally, the first appearance of substantive due process as a concept arguably appeared earlier in the case of Bloomer v. McQuewan, 55 U.S. 539 (1852), so that Chief Justice Taney would not have been entirely breaking ground in his Dred Scott opinion when he pronounced the Missouri Compromise unconstitutional because, among other reasons, an ―act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.‖ Dissenting Justice Curtis disagreed with Taney about what ―due process‖ meant in Dred Scott.

Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i.e. ―legislating from the bench‖), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are Page 60 of 77

claiming power to expand the liberty of some people at the expense of other people‘s liberty (e.g. as in the Dred Scott case), or argue that judges are addressing substance instead of process.

Oliver Wendell Holmes, Jr., a realist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents: I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court‘s own discretion, the validity of whatever laws the States may pass.

Originalists, such as Supreme Court Justice Clarence Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia, who has also questioned the legitimacy of the doctrine, call substantive due process a ―judicial usurpation‖ or an ―oxymoron.‖ Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent.

Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland and Roe v.

Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to ―repeat the process at will.‖ In his book Democracy and Distrust, non-originalist John Hart Ely criticized ―substantive due process‖ as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness.

Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: ―[W]e must always bear in mind that the substantive content of the [due process] clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.‖ Page 61 of 77

Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process; rather, most originalists believe that such rights should be identified and protected through legislation, through passing amendments to the constitution, or via other existing provisions of the Constitution.

The perceived scope of the due process clause was originally different than it is today.

For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a ―theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause.‖

______ Void for Vagueness The courts have generally determined that laws which are too vague for the average citizen to understand deprive citizens of their rights to due process. If an average person cannot determine who is regulated, what conduct is prohibited, or what punishment may be imposed by a law, courts may find that law to be void for vagueness. See Coates v. Cincinnati where the word "annoying" was deemed to lack due process insertion of fair warning.

Incorporation of the Bill of Rights Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's due process clause. The basis for incorporation is substantive due process regarding substantive rights enumerated elsewhere in the Constitution, and procedural due process regarding procedural rights enumerated elsewhere in the Constitution.

Incorporation started in 1897 with a takings case, continued with Gitlow v. New York (1925), which was a First Amendment case, and accelerated in the 1940s and 1950s. Justice Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights.

Justice Felix Frankfurter, however—joined later by Justice John M. Harlan—felt that the federal courts should only apply those Page 62 of 77

sections of the Bill of Rights that were "fundamental to a scheme of ordered liberty." It was the latter course that the Warren Court of the 1960s took, although, almost all of the Bill of Rights has now been incorporated jot-for-jot against the states.

The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.

Some people, such as Justice Black, have argued that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873 Slaughter-House Cases as a reason why. Although the Slaughter-House Court did not expressly preclude application of the Bill of Rights to the states, the clause largely ceased to be invoked in opinions of the Court following the Slaughter-House Cases, and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator Jacob Howard and Congressman John Bingham, included a due process clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would...have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."

The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process, and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter.

When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross," as James Madison put it. Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution."

Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the due process clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into ―due process‖ was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains controversial today.

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Reverse incorporation of Equal Protection In Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court held that: "[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive." The Court thus interpreted the Fifth Amendment's due process clause to include an equal protection element. In Lawrence v. Texas the Supreme Court added: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests"

Levels of scrutiny When a law or other act of government is challenged as a violation of individual liberty under the due process clause, courts nowadays primarily use two forms of scrutiny, or judicial review, which is used by the Judicial Branch. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. To pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.

When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. There is also a middle level of scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases: ―The standards of intermediate scrutiny have yet to make an appearance in a due process case.‖

Remedies The Court held in 1967 that ―we cannot leave to the States the formulation of the authoritative . . . remedies designed to protect people from infractions by the States of federally guaranteed rights.‖

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Just Compensation Eminent Domain

Kelo et al. v. City of New London et al., 545 U.S. 469 (2005) certiorari to the supreme court of Connecticut No. 04–108.Argued February 22, 2005—Decided June 23, 2005After approving an integrated development plan designed to revitalize its ailing economy, respondent city, through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners, the owners of the rest of the property, refused to sell. Petitioners brought this state-court action claiming, inter alia, that the taking of their properties would violate the ―public use‖ restriction in the Fifth Amendment‘s Takings Clause. The trial court granted a permanent restraining order prohibiting the taking of the some of the properties, but denying relief as to others. Relying on cases such as Hawaii Housing Authority v.

Midkiff, 467 U. S. 229, and Berman v. Parker, 348 U. S. 26, the Connecticut Supreme Court affirmed in part and reversed in part, upholding all of the proposed takings.

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Held: The city‘s proposed disposition of petitioners‘ property qualifies as a ―public use‖ within the meaning of the Takings Clause. Pp. 6–20. (a) Though the city could not take petitioners‘ land simply to confer a private benefit on a particular private party, see, e.g., Midkiff, 467 U. S., at 245, the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted ―to benefit a particular class of identifiable individuals,‖ ibid. Moreover, while the city is not planning to open the condemned land—at least not in its entirety— to use by the general public, this ―Court long ago rejected any literal requirement that condemned property be put into use for the … public.‖ Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as ―public purpose.‖ See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158–164. Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power. Berman, 348 U. S. 26; Midkiff, 467 U. S. 229; Ruckelshaus v. Monsanto Co.,467 U. S. 986. Pp. 6–13. (b) The city‘s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. 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. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan‘s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court‘s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment. P. 13. (c) Petitioners‘ proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic. Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized. See, e.g.,Berman, 348 U. S., at 24. Also rejected is petitioners‘ argument that for takings of this kind the Court should require a ―reasonable certainty‖ that the expected public benefits will actually accrue. Such a rule would represent an even greater departure from the Court‘s precedent. E.g.,Midkiff, 467 U. S., at 242. The disadvantages of a heightened form of review are especially pronounced in this type of case, where orderly implementation of a comprehensive plan requires all interested parties‘ legal rights to be established before new construction can commence. The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan. Berman, 348 U. S., at 26. Pp. 13–20.

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268 Conn. 1, 843 A. 2d 500, affirmed.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a concurring opinion. O‘Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined.

Thomas, J., filed a dissenting opinion.

Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.

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References 1. http://www.law.cornell.edu/wex/fifth_amendment 2. http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution 3. http://verdict.justia.com/2013/02/06/salinas-v-texas-in-the-u-s-supreme-courtdoes-the-fifth-amendment-protect-the-right-to-remain-silent 4. http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution 5. http://en.wikipedia.org/wiki/Due_Process_Clause 6. https://supreme.justia.com/cases/federal/us/445/480/ 7. https://supreme.justia.com/cases/federal/us/304/144/case.html 8. https://supreme.justia.com/cases/federal/us/307/174/case.html 9. http://www.ballstonlaw.com/pdf/4-5-Amend-Traffic.pdf 10. http://www.annenbergclassroom.org/Files/Documents/Timelines/FifthAmendment .pdf 11. http://www.ajamie.com/files/Uploads/Documents/Article%20on%205th%20Amen dment%20from%20Fall%20Issue%20%28ELJ%29.pdf

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Attachment A Know Your Fourth & Fifth Amendment Rights

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KNOW YOUR FOURTH AND FIFTH AMENDMENT RIGHTS The Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."

The Fifth Amendment Self-incrimination Clause: "...No person... shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law..."

Keep Private Items Out of View. Always keep any private items that you don't want others to see out of sight. Legally speaking, police do not need a search warrant in order to confiscate any illegal items that are in plain view.

Say "No" if the police request they Search the car or you personally. If the police ask your permission to search, you are under no obligation to consent. The only reason he's asking you is because he doesn't have enough “probable cause” to search without your consent. If the police had sufficient probable cause, they would not be asking, they would immediately proceed to search you and your vehicle, seize anything illegal, and arrest you and possibly your passengers. If the police do not have probable cause to search you, but you consent to a search, the police WILL search you and your car. Again, if you they find anything illegal, you may be arrested and thrown in jail depending on what they found. YOU DO NOT HAVE TO CONSENT TO ANY KIND OF SEARCH. This is the one area where most people fall victim to not asserting their Fourth Amendment Rights. They feel that because it’s a police officer who’s asking, they are compelled to consent to a search, or, if they don’t consent, the police will find “it” anyway and their situation will be worse. This is false. YOU DO NOT HAVE TO CONSENT TO ANY KIND OF SEARCH – ESPECAILLY IF YOU HAVE SOMETHING THAT YOU DO NOT WANT THE POLICE TO FIND. If the police request your consent to search, and you refuse, but they go ahead and search anyway and find some illegal item(s), you would, under these simple circumstances, have grounds to suppress whatever they found due to a violation of your Fourth Amendment rights.

A majority of avoidable police searches occur because citizens naively waive their Fourth Amendment rights by consenting to warrantless searches. As a general rule, if a person consents to a warrantless search, the search automatically becomes reasonable and therefore legal. Consequently, whatever an officer finds during such a search can be used against you to convict you.

Don't expect the police to tell you that you have a right to refuse consent. The police are not required to inform you of your rights before asking you to consent to a search. The police are actually trained to use their authority to get people to consent to a search.

If, for any reason you don't want the officer digging through your belongings, you should refuse to consent by saying something like, "Officer, I know you want to do your job, but I do not consent to any searches of my private property." If the officer still proceeds to search you and finds illegal contraband, your attorney can argue that the contraband was discovered through an illegal search and hence should be thrown out of court. You should never hesitate to assert your constitutional rights.

Do Not Answer Questions without Your Attorney Present. Anything you say can, and probably will, be used against you. In just about any case imaginable, a person is best off not answering any questions about his involvement in anything illegal. Assert your Fifth and Sixth Amendment rights by saying: "Officer, I have nothing to say until I speak with a lawyer." If you do choose to answer any of the officer's questions, always be honest.

Police are not easily tricked. If you feel it is best not to answer truthfully, then don't say anything at all.

Do Not Physically Resist. If the police proceed to detain, search, or arrest you despite your wishes—do not physically resist. You may state clearly but non-confrontationally: "Officer, I am not resisting arrest and I do not consent to any searches." Or you may assert your rights by simply saying nothing until you can speak with an attorney.

Frequently Asked Questions 1. When are police legally allowed to search me?

Searches with a Warrant: Police are legally allowed to search your home or your property if they obtain a search warrant. To obtain a warrant, the police or an informant must sign an affidavit -- a written statement under oath -- to convince a judge that the police have probable cause that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there.

No Search Warrant: Most searches occur without warrants because the police take advantage of many legal exceptions to the Fourth Amendment’s requirement: •

Consent Searches If the police ask your permission to search you, your bike, your home, purse, or other property, and you freely consent, their warrantless search automatically becomes reasonable and therefore legal. Consequently, whatever an officer finds during a consent search can be used to convict you.

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•

Plain View Rule: Any object police see in their plain view is fair game. For example, if you have illegal contraband on the front seat of your car and the police can plainly see it while they have pulled you over and are questioning you, they can question you about it and seize it if they feel it is illegal. So it’s common sense: keep private items you don’t want others to see out of sight.

•

Searches Made in Connection with a Legal Arrest Police do not need a warrant to make a search "incident to an arrest." After a legal arrest, police can legally protect themselves by searching the person and the immediate surroundings for weapons that might be used to harm the officer. Consequently, whatever an officer finds during such a search can be used to convict the person.

•

Exigent Circumstances. Police may conduct a warrantless search or seizure if "exigent circumstances" exist. Exigent circumstances are emergency situations requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.

NOTE: If you ever face a real-life police encounter where the officer is urging you to consent to a search, do not try to figure out whether or not the search is legally permissible.

You must assume that the search is not legally permissible and that the search will only be legal if you consent. If an officer is in fact legally allowed to search you, you have nothing to lose by refusing consent.

2. What is "probable cause"?

Many factors contribute to police authority in a given situation and making up what is probable cause. Understanding the what, when, why, and how of police conduct during a stop is complex and varying standards of proof exist to justify varying levels of police authority during citizen contacts.

Generally, before the police find probable cause, they look for Reasonable Suspicion: facts or circumstances which would lead a reasonable person to suspect that a crime has been, is being, or will be committed. At this stage, police may detain a suspect for a brief period and perform a frisk. In some cases, drug-sniffing dogs may be called, although officers must cite a reason for suspecting the presence of drug evidence in particular. Refusing a search does not create reasonable suspicion, although acting nervous and answering questions inconsistently can. For this reason, it is best not to answer questions if you have to lie in order to do so. Police authority increases if they catch you in a lie, but not if you refuse to answer questions. As a general rule, reasonable suspicion applies to situation in which police have reason to believe you’re up to something, but they don’t know what it is.

If the police find Reasonable Suspicion, then they most likely have Probable Cause: facts or evidence that would lead a reasonable person to believe that a crime has been, is being, or will FAUCI & KUPFERMAN, PLLC

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be committed and the person arrested is responsible. At this stage, police may perform a search, and often an arrest. Probable cause generally means police know what crime they suspect you of and have discovered evidence to support that belief. Common examples include seeing or smelling evidence which is in plain view, or receiving an admission of guilt for a specific crime.

3. Is refusing to let the police search me an admission of guilt?

No. If the police ask your permission to search, you are under no obligation to consent.

Refusing a request to be searched does NOT give the police reasonable suspicion or probable cause, as those phrases are discussed above. If charges are eventually brought against you, the fact that you initially refused consent is no basis for any additional charges, i.e., asserting your Fourth Amendment rights is not a crime.

4. Are police required to read me my rights, and if they don’t, can I go free?

No. The police do not have to automatically read a person his or her Miranda Rights as part of performing an arrest. From the police perspective, the time when they should read a person his or her Miranda rights is when: 1) the person has been taken into custody, 2) the police then questions the person about a crime, and 3) the information obtained is sought to be used against them in court, or, the information leads to new information about other evidence or other crimes. If you are taken into custody and the police do not read you your rights and you make certain statements that are later sought to be used against you, you may have grounds to make a motion to suppress those statements and any evidence obtained as a result of making those statements. If the motion to suppress is successful, it does not necessarily mean the case against you is dismissed, just that the evidence illegally obtained can’t be used. The police can always use legally obtained evidence to convict you.

This is not a guarantee, representation or warranty of any outcome of any case. The forgoing paragraphs are but short introduction to these issues and should never be construed to obviate the need to seek direct legal advice.

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TRAFFIC STOPS HOW SHOULD YOU ACT WHEN STOPPED BY A COP? What should you say or not say? To increase your chances of getting away with a warning and not being ticketed, read on.

WHEN YOU SEE LIGHTS FLASHING BEHIND YOU If a police car pulls up behind you with lights flashing, the next few minutes is key in whether or not you will be ticketed. Keeping things safe for you and the police officer is of most importance. At the minimum: •

Slow down and turn on your right turn signal to the right;

•

Pull over to the right shoulder – as far as you can and as safe under the circumstances. The police are trained to leave their vehicle further out into the shoulder/road then yours so as to leave a barrier against passing traffic.

•

Stay in your car unless you are told to get out. It's a challenge to the officer if you get off since officers are very cautious because of the high rate of attacks in these situations.

•

Keep your hands in view and on the steering wheel. If the police ask for your driver's license, registration or insurance card, tell the officer where the items are before you reach for them.

•

Look the officer in the eye at all times you are speaking to him/her. Show them the utmost respect and be courteous.

•

Do NOT at any time, especially while the police are approaching you, reach for, or PLACE anything in your coat, under the seat, etc. Even if you are trying to hide something, the police are trained to think that you are reaching for a gun and they will draw their guns, pull you out of your car, search you, and possibly arrest you.

The key is to play it cool and keep it safe. The easier and safer you make the process for the officer to approach you the more likely the officer will let you go just with a warning and not assign you a speeding ticket.

What to say/not to say to the police officer •

As the officer approaches you, ask “what’s the problem?” The first thing the police officer will respond or ask you is whether you know why you have been stopped.

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•

Do NOT admit anything at anytime. Do not admit “I was speeding” or respond “I think I was going 79 miles an hour.” Even if you think you were speeding, you truly and honestly do not really know why you where pulled over. The Police will want you to admit that you were speeding and that is what most drivers do - they admit it and then receive a speeding ticket for their honesty and helping the police. By asserting your right to not incriminate yourself, you are not being dishonest.

•

Don't admit that you were speeding but don’t deny it either if you really were.

When the officer says that you were stopped for speeding you can respond by: "I’m sorry officer, I was not paying attention to my speed. I’m not in any hurry, I was just lost in thought. I’m sorry, I will pay attention, slow down, and take it easy. Do you think you can let me go with a warning?”

•

Remain calm and quiet while the officer is reviewing your documents. If the officer writes you a ticket, accept it quietly and never complain. Listen to any instruction on paying the fine or contesting the ticket, and drive away slowly.

Most people get pretty nervous when they got stopped by a cop. The secret is to stay calm, speak to the officer in a respectable tone and politely ask whether the officer can let you go with a warning.

This is not a guarantee, representation or warranty of any outcome of any case. The forgoing paragraphs are but short introduction to these issues and should never be construed to obviate the need to seek direct legal advice.

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Attachment B Asserting the Fifth Amendment in Civil Proceedings

Page 72 of 77

Asserting the Fifth Amendment in Civil Proceedings

By Dona Szak

A

s violations of financial, competi- tion, and environmental laws become increasingly criminalized—for offenses that formerly were treated purely as civil violations—management of companies in the energy industry are confronted with the need to understand the implications of asserting a Fifth Amendment privilege against self-incrimination.1 After the deadly Upper Big Branch mine explosion in West Virginia, for example, at least six witnesses from Massey Energy asserted their Fifth Amendment rights against self-incrimination rather than testify during a joint federal and state investigation into the accident’s causes.2 While the witnesses and their attorneys apparently claimed that individual investigators had abused the investigation process, it is the actual or potential threat of criminal liability that triggers the right to assert the Fifth Amendment in connection with an investigation.

For example, after BP engineer Robert Kaluza asserted his Fifth Amendment right to avoid self-incrimination during May 2010 rather than testify before the coast guard interior department panel investigating the Macondo oil spill, Attorney General Eric Holder announced in early June 2010 that the Macondo oil spill would be the direct subject of a criminal investigation.3 Thereafter, the coast guard itself directly raised the Fifth Amendment issue when panel cochair Hung M. Hguyn noted that a Transocean engineer could avoid the panel’s questioning only by invoking the Fifth Amendment.4 For these and other accidents in the energy industry, the risk of criminal prosecution may have consequences for companies as well as individual witnesses, as was the case when prosecutors used the Clean Water Act and the Refuse Act to bring criminal charges against Exxon

itself (rather than individual management) following the 1989 Exxon Valdez oil spill.5 These same considerations, of course, also apply in the context of civil litigation for companies whose witnesses are called to testify. For this reason, it is a good idea for counsel to brush up on principles governing the use (and abuse) of the Fifth Amendment privilege in any lawsuit involving allegations that would trigger potential criminal penalties.

We commonly hear that a criminal defendant’s choice to invoke the Fifth Amendment is not admissible as evidence of guilt.6 But may a defendant invoke the Fifth Amendment and decline to testify in a civil or an administrative proceeding? If so, what is the effect on the civil case? Can civil litigation proceed without the defendant’s testimony?

As explained below, an individual may indeed decline to testify during civil proceedings on the ground that his testimony may incriminate him—but the decision not to testify carries potentially severe consequences should the case proceed to trial. 7 In contrast to a criminal trial, the court and jury are allowed to draw an adverse inference when a defendant invokes his Fifth Amendment rights in a civil case.8 It doesn’t take a genius,

therefore, to see that that the Fifth Amendment privilege is a tradeoff between disagreeable alternatives in a civil context—a choice between greater risk of criminal consequences if the witness testifies or a greater risk of civil liability if the witness does not (e.g., “He must have something to hide!”).

Invoking the Fifth Amendment in a Deposition

The discovery stage of civil litigation presents the first potential pitfall for the actual or potential criminal defendant. Must he or she submit to a deposition? The defendant indeed is required to appear for a deposition, and cannot use the existence of parallel criminal proceedings, or his or her fear of criminal proceedings, to avoid giving a deposition. Nevertheless, the defendant may assert his or her rights under the Fifth Amendment and decline to answer specific questions that he or she reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.10 The witness need not have been actually accused of a crime to invoke this right. In response to an incriminating question, the witness may answer along the following lines: “Based on the advice of counsel, I assert my rights under the

Civil Liability in the Shadow of Criminal Proceedings To understand the ramifications of a defendant’s Fifth Amendment assertion, it is helpful to understand how self-incrimination issues typically arise. An individual who violates a criminal statute obviously can be prosecuted. He or she may be an actual defendant in an active criminal case, may be aware of an ongoing criminal investigation, or may simply fear criminal proceedings at some undetermined point in the future. The criminal act may well have caused damages to others. If so, the injured parties are free to file suit even if a criminal prosecution or investigation is ongoing.9 Once a civil suit is filed, the plaintiff will want to take depositions and otherwise move the case toward trial. The court typically will enter a scheduling order with discovery cutoff and trial dates.

Published in Energy Litigation, Volume 10, Number 1, Fall 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Fifth Amendment of the United States Constitution and respectfully decline to answer the question.”

This answer of necessity deprives the plaintiff of discovery that could be critical to the outcome of the case. Typically, a defendant who declines to testify to relevant facts faces sanctions for discovery abuse. Can the criminal defendant be sanctioned? May his or her pleadings be stricken? Since the defendant’s Fifth Amendment rights take precedence over the right to discovery, a defendant cannot be sanctioned for invoking his or her Fifth Amendment rights.11 The court is not empowered to strike the defendant’s pleadings, enter a default judgment, or hold the defendant in contempt solely for declining to answer questions on Fifth Amendment grounds.

Choosing Whether to Testify

Nevertheless, the plaintiff has a powerful remedy that can effectively devastate the defendant’s ability to mount a persuasive defense. As noted earlier, the court and jury in a civil case are allowed to draw an adverse inference against a defendant who invokes his or her Fifth Amendment rights.12 In other words, the jury may be informed that the defendant pleaded the fifth and declined to testify (or they can see that he or she is doing so at trial), and the jury can consider this factor in deciding whether to impose liability.

As the Fifth Circuit succinctly explained, “[a]lthough a jury in a criminal case is not permitted to draw adverse inferences based on a defendant’s invocation of his Fifth Amendment rights, it is well-settled 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.”13 When the witness’s invocation of the Fifth Amendment has sufficient probative value, the trial court may abuse its discretion by excluding evidence of the invocation.14

The defendant may perceive that he or she is placed in an untenable situation. Either the defendant risks selfincrimination to effectively defend the civil case, or preserves his or her right to avoid self-incrimination, thereby increasing exposure to civil liability.

This is indeed a serious dilemma. Many counsel will advise the defendant to choose the course of action that provides maximum protection from criminal conviction. This is a decision with potentially life-changing consequences for the defendant and must be made with utmost consideration for the potential outcomes.

Even when the defendant chooses to stand on Fifth Amendment rights, he or she still has a chance of prevailing in the related civil case. Since a civil trial court is permitted—but not required— to draw an adverse inference, the defendant has the opportunity to demonstrate why the court should exercise its discretion against drawing the inference. The detriment to the defendant in asserting Fifth Amendment rights must be no more than is necessary to prevent unfair disadvantage to the plaintiff.15 Federal Rule of Evidence 403 allows the court to exclude evidence if its probative value is substantially outweighed by the risk of unfair prejudice.

The court must consider all of the facts surrounding the defendant’s conduct in the litigation to reach a result that is fair to both parties.16 Retracting the Fifth Amendment Assertion

One factor that the court may consider in deciding whether to draw an adverse inference is whether the defendant asserted his or her right to decline to testify early in the case, but later retracted and submitted to a full deposition. In Evans v. City of Chicago, for example, a group of defendants invoked their Fifth Amendment rights during the two-year period that the case was in discovery.17 The plaintiff proceeded to

prepare for trial without benefit of the defendants’ testimony. Approximately one month before trial, the defendants changed their minds and retracted their Fifth Amendment assertions. The court ordered the defendants to give depositions during the weeks leading up to the trial. Immediately before the trial commenced, the court issued a ruling to exclude evidence of the defendants’ two-year-long invocation of their

Federal Rule of Evidence 403 allows the court to exclude evidence if its probative value is substantially outweighed by the risk of unfair prejudice.

Fifth Amendment rights against selfincrimination. The jury returned a verdict in favor of the defendants.18 The plaintiff, on appeal to the Seventh Circuit, argued that the trial court abused its discretion by allowing the defendants to change their position at the eleventh hour and then declining to allow evidence of their earlier Fifth Amendment assertions. The Seventh Circuit affirmed the trial court’s decision, explaining that the court reasonably could have determined that ordering additional discovery cured any prejudice to the plaintiff.19 In a strong dissent, Judge Williams criticized this decision, pointing out that the defendants had a change of heart only after seeing the plaintiff’s case unfold. Judge Williams noted that a series of hurried depositions taken on the eve of trial could not have sufficiently cured the prejudice occasioned by two years of silence.20 Many judges have not been as charitable as the Evans court toward defendants who retract their Fifth

Published in Energy Litigation, Volume 10, Number 1, Fall 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Amendment invocations. Several courts, including the Seventh Circuit in an earlier opinion, have issued decisions consistent with Judge Williams’ reasoning.21 As a result, a defendant who changes his or her mind and decides to testify (whether due to a good faith change of heart or for tactical advan-

The adverse inference that can be drawm from a Fifth Amendment assertion does not relieve the plaintiff of the burden to prove the case. tage) has no guarantee that the court will allow the subsequent testimony, and even if it does, that the court will exclude evidence of the defendant’s prior invocation of the Fifth Amendment.

Staying Civil Proceedings Because of Parallel Criminal Proceedings

A defendant is not without recourse to protect against an unfavorable inference. A defendant who is the target of an active criminal investigation may request a stay of the civil litigation pending resolution of the criminal proceedings. The courts have enunciated several factors to consider when deciding whether to issue a stay. The factors include the extent to which the issues in the civil and criminal cases overlap; the status of the criminal case, especially whether the defendant has been indicted; the private interests of the plaintiff in proceeding expeditiously weighed against the harm to the plaintiff caused by the delay; the private interests of and burden to the defendants; the interests of the court; and the public interest.22 The two most important factors are the overlap between the civil and criminal matters and whether

an indictment has been issued in the parallel criminal proceeding. Although courts have issued stays of civil proceedings absent an indictment, as a practical matter, obtaining a stay will be difficult unless an indictment has been issued and a criminal case is underway.23 What if some, but not all, of the defendants, invoke their Fifth Amendment rights? The grounds for a stay may be stronger when the rights of non-target defendants are at risk.

The non-targets, like the plaintiff, are precluded from obtaining testimony from potentially key witnesses. The unavailability of codefendants’ testimony, coupled with potential prejudice at trial to the testifying defendants, provide stronger grounds for issuing a stay in such circumstance.24 Understanding the Adverse Inference

Notwithstanding the concerns discussed above, the adverse inference that can be drawn from a Fifth Amendment assertion does not relieve the plaintiff of the burden to prove the case. A key facet of the adverse inference is that the Fifth Amendment does not forbid an adverse inference when a party refuses to testify in response to probative evidence offered against him or her.25 The inference itself cannot substitute for admissible evidence to support an ultimate issue of fact.26 In Lefkowitz v. Cunningham, the Supreme Court declined to allow an adverse inference, as probative evidence had not been adduced.27 Accordingly, before the plaintiff can count on utilizing an adverse inference, there must be some evidence, even if circumstantial, to support its claims. Only then may the defendant’s invocation of the Fifth Amendment be used to bolster the plaintiff’s case.28 White-collar prosecutions continue to grab headlines. Pleading the Fifth Amendment is frequently a sound choice for criminal defendants, yet it is important to understand how this decision affects a civil case. The courts

have endeavored to maintain a balance between the defendant’s Fifth Amendment rights and a plaintiff’s right to fully present evidence. Nevertheless, as statutes and regulations continue to expand in scope by criminalizing a wide variety of violations, both counsel and the courts will need to carefully apply this balance in the context of civil proceedings. n Dona Szak is a partner with Ajamie LLP in Houston, Texas. She may be reached at dszak@ajamie. com.

Endnotes 1. See, e.g., Tom Fowler, Disaster in the Gulf, Houston Chronicle, Aug. 24, 2010, Section B (discussing application of Fifth Amendment rights to events such as the Macondo oil spill).

2. See Howard Berkes, Massey Officials Plead the 5th in Mine Disaster Probe, Vermont Public Radio (Oct. 29, 2010, 3:02 PM), available at www.vpr.net/npr/130917523/.

3. See BP was warned of gas danger, contractor says, MSNBC (Aug. 24, 2010, 5:21 PM), available at www.msnbc.msn.com/id/38837179/.

4. See David S. Hilzenrath, Deepwater Horizon Chief Engineer Testifies in New Round of Hearings, The Washington Post (July 19, 2010, 5:25 PM), available at www.washingtonpost.com/wp-dyn/content/article/2010/07/19/AR2010071904349 .html.

5. See Curt Anderson, Gulf Oil Spill Criminal Case Difficult Against Execs, Huffington Post (June 3, 2010, 3:15 AM), available at www. huffingtonpost.com/ 2010/06/03/gulf-oil-spillcriminal-c_n_598875.html.

6. See Carter v. Kentucky, 450 U.S. 288, 301 (1981).

7. See Kastigar v. United States, 406 U.S. 441, 444–45 (1972). The Fifth Amendment’s privilege against self-incrimination applies only to individuals. The privilege does not extend to corporations. See Braswell v. United States, 487 U.S. 99, 102 (1988). As a result, a corporation’s employees may assert the Fifth Amendment for themselves, but not on behalf of the corporation.

8. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

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9. See SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980), cert. denied, 449 U.S. 993 (1980) (summarizing significant decisions authorizing parallel criminal and civil proceedings).

10. See id.; see also Evans v. Chicago, 513 F.3d 735, 743 (7th Cir. 2008), cert. denied, 129 S.Ct. 899 (2009); Doe ex rel. Rudy-Glanzer v.

Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000).

The same standard applies when a witness takes the Fifth Amendment when testifying at trial.

11. See SEC v. Graystone Nash, Inc., 25 F.3d 187, 190–91 (3d Cir. 1994); See Fed. R. Civ. P. 26(b)(5) (asserting privilege in response to discovery requests).

12. See Baxter, 425 U.S. at 318; see also Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 674 (5th Cir. 1999) (allowing adverse inference to be drawn against corporate defendant whose designated representative invoked the Fifth Amendment).

13. See Hinojosa v. Butler, 547 F.3d 285, 291 (5th Cir. 2008) (quoting Baxter, 425 U.S. 308)(internal quotations and citations omitted).

14. See Hinojosa, 547 F.3d at 293–95; Harris v. Chicago, 266 F.3d 750, 755 (7th Cir. 2001).

15. See Nationwide Life Ins. Co. v.

Richards, 541 F.3d 903, 910 (9th Cir. 2008); Doe ex rel. Rudy-Glanzer, 232 F.3d at 1265.

16. See Doe ex rel. Rudy-Glanzer, 232 F.3d at 1264-67 (determining that trial court properly declined to draw negative inference because defendant’s answers would have been inadmissible).

17. Evans, 513 F.3d at 735.

18. Id. at 740.

19. Id. at 745.

20. Evans, 513 F.3d at 747–48 (Williams J., dissenting).

21. See, e.g., Harris, 266 F.3d at 756 (trial court committed reversible error by excluding evidence of defendant’s Fifth Amendment assertion); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 576 (1st Cir. 1989) (trial court correctly declined to allow defendant to testify at trial after he asserted Fifth Amendment at deposition).

22. See In re CFS-Related Sec. Fraud Litig., 256 F. Supp. 2d 1227, 1236-37 (N.D. Okla.

2003); Volmar Dist., Inc. v. New York Post Co., 152 F.R.D. 36, 39 (S.D.N.Y. 1993); see also Pendergest-Holt v. Certain Underwriters at Lloyd’s of London, Civil Action No. H-09-3712, 2010 WL 3199355, at *3 (S.D. Tex. Aug. 11, 2010) (denying motion to stay filed by plaintiffs who asserted Fifth Amendment right because stay would unduly burden opposing parties).

23. See Dresser Indus., Inc., 628 F.2d at 1377 (declining to block SEC investigation due to parallel grand jury proceedings); Sterling Nat. Bank v. A-1 Hotels Intern., Inc., 175 F. Supp.

2d 573 (S.D.N.Y. 2001), (noting that courts of 2nd Circuit generally consider stay only after defendant has been indicted); but see Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084, 1089 (5th Cir. 1979) (affirming three-year stay where party threatened with prosecution); Chao v. Fleming, 498 F. Supp. 2d 1034, 1039–40 (W.D. Mich. 2007) (granting stay when no indictment had yet been issued); SEC v.

Healthsouth Corp., 261 F. Supp. 2d 1298, 1327 (N.D. Ala. 2003) (same).

24. See In re Adelphia Comm. Sec. Litig.,

No. 02-1781, 2003 WL 22358819, at *5 (E.D. Pa. May 13, 2003) (citing prejudice to testifying defendants as factor in granting motion to stay).

25. See Lefkowitz v. Cunningham, 431 U.S. 801, 808 (1977); Baxter, 425 U.S. at 318.

26. See Avergin v. Hull, 932 F.2d 1572, 1580 (11th Cir. 1991).

27. Lefkowitz, 431 U.S. at 808 n.5.

28. See, e.g., LaSalle Bank Lake View v.

Seguban, 54 F.3d 387, 391 (7th Cir. 1995) (holding that plaintiff not entitled to summary judgment when defendant, asserting Fifth Amendment right, declined to admit or deny facts); In re Enron Corp. Sec., Derivative & ERISA Litig., 490 F. Supp. 2d 784, 825–26 (S.D. Tex. 2007) (dismissing complaint for fraud due to lack of pleading with particularity, as evidentiary significance of Fifth Amendment assertion could not cure pleading deficiencies); In re Curtis, 177 B.R. 717, 720 (S.D. Ala. 1995) (holding that plaintiff cannot rely on defendant‘s assertion of Fifth Amendment to establish elements of fraud).

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Attachment C Fifth Amendment Timeline

Page 73 of 77

Fifth Amendment TIMELINE Seizure of property without full hearing does not violate due process

Slaves cannot be taken from their owners by federal law

The government can take private property

1856

1857

1876

The federal government seizes property from a man who owes it money. He argues that the lack of a hearing violates his Fifth Amendment right to “due process.” The Supreme Court rules in Murray’s Lessee v. Hoboken Land and Improvement Co. that different processes may be legitimate in different circumstances. To determine the constitutionality of a procedure the Court looks at whether it violates specific safeguards in the Constitution and whether similar types of proceedings had been used historically, particularly in England. In this case, because a summary method for the recovery of debts had been used in England, the procedure is constitutional in the United States.

In Dred Scott v. Sandford, the Supreme Court decides that Dred Scott, who had moved with his owners to the free state of Illinois, returned to slavery when his owners moved back to Missouri, a slave state. The Court rules that slaves are property and that therefore the Missouri Compromise, which forbids slave owners from taking their property into free states violated the owners’ Fifth Amendment rights not to have private property taken from them without just compenstion. The Court further declares that slaves are not citizens of the United States entitled to the protection of the Fifth Amendment.

In Kohl v. United States, the U.S. Supreme Court upholds the federal government’s right to take land in Cincinnati, Ohio, to build a post office. The government’s ability to exercise the power of eminent domain contained in the Fifth Amendment is ruled essential to the government’s ability to fulfill its duties to the public.

This important goal outweighs any inconvenience to individuals living on the land.

Conviction in both federal and state court is not double jeopardy 1922 A defendant who had been convicted in state court objects to having to stand trial in federal court for the same crime.

In United States v. Lanza, the U.S. Supreme Court rules that the double jeopardy clause was not violated because the state and federal legal systems are different government “units,” and that each can determine what shall be an offense against its peace and dignity.

Due process requires a hearing before someone is deported 1922 In Ng Fung Ho v. White, the U.S. Supreme Court rules that the Fifth Amendment due process clause requires the government to hold a hearing before deporting a U.S. resident who claims to be a citizen, arguing that otherwise the person is deprived of liberty, and possibly in danger of losing property and life.

A group of illegal immigrants being deported, 1952.

Photo: Library of Congress

Dred Scott Photo: Library of Congress

The right against selfincrimination applies in some civil cases 1924 The U.S. Supreme Court considers the question of whether a debtor who testifies at his own bankruptcy hearing is allowed to refuse to answer questions that might incriminate him. In McCarthy v. Arndstein, the Supreme Court holds that the Fifth Amendment privilege against selfincrimination applies to defendants in civil cases, not just criminal cases, if criminal prosecution might result from the disclosure.

Fifth Amendment TIMELINE Curfew regulations do not violate due process rights

Organizations do not have the right against self-incrimination

A suspect has the right to remain silent

1943

1944

1966

In United States v. White, the U.S. Supreme Court rules that a labor union under criminal investigation cannot refuse to turn over its records on the grounds of self-incrimination, explaining that the Bill of Rights was enacted to protect individuals, not organizations, from government control.

In Miranda v. Arizona, the U.S. Supreme Court rules that the right against self-incrimination is not limited to in-court testimony, but also applies when a suspect is taken into police custody for questioning. Before any questioning can begin, police must explain that the suspect has the 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 court refuses to accept as evidence any statements made after the right to remain silent has been invoked. These mandatory statements by police are known as Miranda rights and the process of informing is known as Mirandizing.

In the wake of Japan’s attack on Pearl Harbor, Congress passes a law requiring Japanese Americans to live in restricted areas and obey curfews. In the case of Hirabayashi v. United States, the U.S. Supreme Court rules that this is not a violation of the Japanese Americans’ Fifth Amendment right to due process, as they may have divided loyalties during wartime and their segregation is necessary to protect national security.

Border Patrol agent reads the Miranda rights to a Mexican national arrested for transporting drugs.

Photo: Wikimedia Commons

Japanese Americans being evacuated from West Coast areas Photo: Library of Congress

Double jeopardy applies to state trials 1969

Prior notice and a hearing are required 1993

At first the Bill of Rights was seen as a limitation on the federal government’s powers, not on the state government. In Benton v. Maryland, the U.S. Supreme Court rules that the double jeopardy clause represents a fundamental ideal of “our constitutional heritage,” and extends double jeopardy protection to defendants in state court trials. The justices also cite the Fourteenth Amendment’s prohibition on state governments limiting liberty without due process. Double jeopardy, they rule, violates the due process rights of the accused.

Four years after police found drugs and drug paraphernalia in a man’s home and he pleaded guilty to drug offenses under Hawaiian law, the federal government files a request to take his house and land because it had been used to commit a federal drug offense. Following an ex parte proceeding (in which only the prosecution participates), a judge authorizes the property’s seizure without prior notice to the individual. The Supreme Court, in United States v. James Daniel Good Real Property, rules that the property owner was entitled to advance notice and a full hearing before the government could take his home and land.

A death sentence imposed after retrial is not double jeopardy 2003 A defendant is convicted of first-degree murder, but the jury cannot reach a unanimous decision whether to sentence the defendant to death or to life in prison. By default, a life sentence is imposed. The defendant appeals his conviction and wins a retrial, but at the second trial the jury unanimously hands down a death sentence. In Sattazahn v. Pennsylvania, the U.S. Supreme Court rules that this second verdict does not violate the double jeopardy clause because the first jury’s inability to reach a unanimous verdict means that there was no official finding of the facts regarding what kind of penalty the defendant deserved.

As these questions remain open at the time of the second trial, the second jury can look at the facts again.

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