Fifth Amendment to the United States Constitution

The amendment as proposed by Congress in 1789 and ratified by the states: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence 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.On June 8, 1789, Congressman James Madison introduced several proposed constitutional amendments during a speech to the House of Representatives....Except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger ... in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary ...This draft was edited by Congress; all the material before the first ellipsis was placed at the end, and some of the wording was modified.As a decision, O'Callahan, however, lived for a limited duration and was more a reflection of Justice William O. Douglas's distrust of presidential power and anger at the Vietnam Conflict.[10][11] 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.[30] Blockburger is the default rule, unless the legislature intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates,[31] as can conspiracy.In Heath v. Alabama (1985), the Supreme Court held that the Fifth Amendment rule against double jeopardy does not prohibit two different states from separately prosecuting and convicting the same individual for the same illegal act."[46] In the Salinas case, Justices Alito, Roberts, and Kennedy held that "the Fifth Amendment's privilege against self-incrimination does not extend to defendants who simply decide to remain mute during questioning.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.In Haynes v. Washington,[54] the Court held that an "unfair and inherently coercive context" including a prolonged interrogation rendered a confession inadmissible.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."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.In Yarborough v. Alvarado (2004), the Court held that "a state-court decision that failed to mention a 17-year-old's age as part of the Miranda custody analysis was not objectively unreasonable".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.[57] Unless and until the suspect actually states that he is relying on that right, police may continue to interact with (or question) him, and any voluntary statement he makes can be used in court.This standard was extended in Salinas v. Texas in 2013 to cases where individuals not in custody who volunteer to answer officers' questions and who are not told their Miranda rights.Corporations may also be compelled to maintain and turn over records; the Supreme Court has held that the Fifth Amendment protections against self-incrimination extend only to "natural persons".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 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.""[70] In Garner v. United States,[71] the defendant was convicted of crimes involving a conspiracy to "fix" sporting contests and to transmit illegal bets.In Leary v. United States,[80] the court struck down the Marijuana Tax Act because its record keeping statute required self-incrimination.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.[85] 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.[88][89] 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.[90][91] The Oregon Supreme Court ruled that unlocking a phone with a passcode is testimonial under Article I, section 12 of the state constitution, thus compelling it would be unconstitutional.It was the only clause in the Bill of Rights drafted solely by James Madison and not previously recommended to him by other constitutional delegates or a state ratifying convention.When determining the amount that must be paid, the government does not need to take into account any speculative schemes in which the owner claims the property was intended to be used.The exercise of the police power of the state resulting in a taking of private property was long held to be an exception to the requirement of government paying just compensation.However the growing trend under the various state constitution's taking clauses is to compensate innocent third parties whose property was destroyed or "taken" as a result of police action.Olson v. United States, 292 U.S. 246 (1934)  ... Deviation from this measure of just compensation has been required only "when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public".[102] If property is seized in a civil forfeiture, it is "up to the owner to prove that his cash is clean"[104] and the court can weigh a defendant's use of their Fifth Amendment right to remain silent in their decision.
James Madison , drafter of the Bill of Rights , by John Vanderlyn
The Bill of Rights in the National Archives
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