5. Amendment to the United States Constitution
The 5th Amendment to the Constitution of the United States of America of 1791, the Fifth Amendment, ensures various rights of a defendant and is part of the Bill of Rights .
The Fifth Amendment ensures that
- Accused in criminal proceedings have access to a jury ( grand jury )
- no one is charged several times for the same act ( Double Jeopardy )
- Nobody has to testify against themselves in an investigation ( right to refuse information )
- due process takes place before a judgment
- the right to property is guaranteed
text
“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. "
“Nobody should be held responsible for a capital offense or any other shameful crime, unless on the basis of a motion or indictment by a grand jury. Exceptions to this are cases that occur with the land or naval forces or with the militia if they are on active service in wartime or in a state of public emergency. No one may be brought into danger to life or limb twice in one procedure for the same offense. Nobody may be forced to testify against themselves in criminal proceedings, nor be deprived of life, liberty or property without prior due process in accordance with the law. Private property may not be confiscated for public purposes without adequate compensation. "
The 5th amendment to the constitution is listed in the bill of law passed by the US Congress as the "seventh article" (Article the seventh) .
history
The original text of the US Constitution aroused some opposition for failing to adequately guarantee civil rights. In response to this, the Fifth Amendment, along with the rest of the Bill of Rights, was proposed by the US Congress in 1789 . On December 15, 1791, the Bill of Rights had been ratified by the necessary number of states and thus passed.
Grand jury
Grand juries (German for example: "large jury courts"), whichdecidein many criminal cases on the indictments (German for "charges due to a serious offense / criminal offense"), are composed entirely of lay people. You come to your decision on your own and are directed, but not controlled, by the prosecutors.
Many of the limitations imposed by the Constitution do not apply in grand jury trials . This applies, for example, to the exclusionary rule (German: "exclusive regulation"). It prevents admission to trial for evidence produced by violating the Fourth Amendment . The rule does not apply to evidence presented to a grand jury . Another example concerns witness attorneys. When the police are investigating witnesses, their lawyers are normally allowed to be present during the proceedings. Lawyers do not have this right before grand juries .
The grand jury indictment clause (German for example: "Clause on the indictment by jury courts") was not included in the 14th amendment to the constitution . As a result, it does not apply to the individual US states . The states are therefore allowed to abolish the grand juries . In fact, many, but not all, states have replaced them with preliminary hearings .
Whether or not a crime is "shameful" is determined by the type of penalty that might be imposed (but not by the penalty that is actually imposed). In the case of United States v. Moreland , the US Supreme Court ruled in 1922 that a crime should be declared "shameful" by long imprisonment.
Currently, no indictment is required under US federal law to negotiate misdemeanors . Court hearings the subject of criminal offenses may also be conducted without indictment if the accused waive their right guaranteed by the fifth amendment to the constitution. Excluded from this regulation, however, are negotiations for criminal offenses that can be punished with the death penalty , for which an indictment is required in any case .
Indictments made by grand juries may only be changed to a limited extent by the prosecution. In 1887 the Supreme Court ruled in the Ex Parte Bain case that the indictments should not be changed by the prosecution at all. However, that judgment was passed in 1985 in the United States v. Miller partially discarded; now it has been decided that the scope of an indictment could be reduced by the prosecution. Thus, minor charges can be dropped, but no new charges may be added.
People who serve in the military are not protected by the clause of the fifth amendment to the jury, neither in times of war nor in times of peace. Members of the state militia who are called up to serve in the US armed forces are also not protected by the clause. In 1969 the Supreme Court ruled in the O'Callahan v. Parker that members of the militia may only be charged with official offenses without indictment . That decision was overturned in 1987 when the Court ruled that members of the militia could be charged with any crime without indictment while on duty .
Double jeopardy
In general, due to the double jeopardy clause (German: double jeopardy clause), which sets out the legal principle Ne bis in idem , no one may be charged with a criminal offense more than once. Originally, protection against double jeopardy did not apply to criminal prosecution by the courts of the individual states of the USA. In 1969, however, the Supreme Court ruled in the Benton v. Maryland that the 14th Amendment incorporated the clause ; that is, it also applies to state courts.
The fifth amendment relates to
- being brought into danger of life or limb by a process .
However, the clause has been interpreted as providing protection in relation to
-
every indication or information charging a party with a known and defined crime or misdemeanor.
(German: Every charge and all statements that accuse someone of having committed a known and specific crime or misdemeanor.)
In 1874, however, it was decided in the Ex parte Lange case that the clause could generally only be applied to criminal trials , so that someone could be tried in both criminal and civil proceedings for the same crime . This statement was later restricted, but still essentially applies. Because of these decisions, for example, OJ Simpson could be brought to trial in criminal and civil cases for murder in 1994 and 1995; he was acquitted in the criminal trial, but sentenced in the civil trial to pay $ 8.5 million in pain and suffering.
Furthermore, the Supreme Court restricted the scope of the double jeopardy clause in its judgment so that the clause does not prevent separate proceedings by different governments, whereby the governments of the states and the US government are viewed as individual sovereigns. Therefore, a person may be tried in a state court in one state and in another state, in another country, or (most often) in a US federal court for the same crime.
Once acquitted , the defendants cannot be tried again for the same crime. Acquisitions by both juries and judges are generally regarded as final. A judge is usually allowed to acquit a defendant if he believes there is insufficient evidence to convict him . If the judge comes to that judgment before the jury has made its judgment, their decision is final. However, if the judge's verdict overturns a jury conviction , the prosecution may appeal that verdict and demand that the jury's verdict be reinstated.
Once they have been convicted, the defendants may only be tried again under limited circumstances. If a defendant appeals a judgment and has it overturned, he must be tried again. There is an exception here, however, when the jury's verdict is overturned for lack of evidence rather than procedural error, since, as noted above, a verdict for lack of evidence would be final. In 1978, in the case of Burks v. United States decided:
-
[I] t should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.
(German: [E] s should make no difference if the court that decides on the appeal and not the court before which the case was heard decides that the evidence is inadequate.)
Another exemption is available in cases where the accused is convicted of crimes are less serious than those he account of which was charged: If someone, for example, because of first degree murder (equivalent to the German murder was charged) by the jury because of secondhand degree murder (corresponds to German manslaughter ) has been convicted and then the jury's judgment is overturned due to procedural errors, the accused may be tried again for second degree murder , but not for first degree murder . This is justified by the fact that the jury indirectly acquitted the defendant of first degree murder through the conviction for second degree murder .
A defendant cannot be tried twice for the same offense, but the sentence in the judgment may be increased in certain circumstances. It was decided that convictions did not have the same "finality" as acquittals and should therefore be reviewed by the courts. The sentence may only be increased as long as the convicted person has not yet begun to serve his sentence. If a defendant's conviction has been overturned on procedural grounds, a harder verdict can be reached in the new trial than in the original trial. The only exception is that the prosecution may not demand the death penalty in the new trial if it was not already imposed by the jury in the original trial . The reason for this exception is that the jury must make several pertinent decisions before the death penalty is imposed; failure to make these decisions by the jury will be considered tantamount to an acquittal from the death penalty.
The double jeopardy clause does not generally apply to mistrials (German for example: invalid procedures). If a judge rejects a case or ends a trial without ruling the facts in favor of the accused (for example, by abandoning the trial for procedural reasons), the case is a mistrial and is normally allowed to be retried . Furthermore, the judge may call a mistrial and order a repetition if the jury does not come to a judgment. If the appeal of the accused declares a trial to be mistrial , there are no obstacles to its repetition, even if the prosecution or the judge made the mistake that caused the mistrial . However, there is an exception to this if the prosecution or the judge acted in bad faith: in 1982 the Supreme Court ruled the Oregon v. Kennedy :
-
Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.
(German: Only if the state behavior in question aims to "incite" the accused to declare the case a mistrial , after the original trial was terminated on his request, the accused may prevent a second trial by means of the double jeopardy clause . )
The accused may not be tried more than once for “the same crime”. However, the same behavior can sometimes violate different laws. In 1932 the Supreme Court came to the Blockburger v. United States came to the following conclusion:
-
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
(German: If the same act or the same process violates two different legal clauses, the test to be used for the question of whether there are two crimes or only one is whether a fact has to be proven for the violation of each clause, that for the violation of the other does not have to be proven.)
For example, the test was conducted in 1977 in the Brown v. Ohio applied: The defendant was first convicted of operating a car without the owner's consent, and later for stealing the same car. The Supreme Court concluded that the same evidence was needed to prove both crimes and that in reality it was only one crime. So he reversed the second judgment.
In other cases, the same behavior can result in many violations of the same law, such as robbing many people at the same time. Separate prosecutions for different crimes committed by the same incident are not specifically prohibited, but the prosecution may not initiate another trial of facts that have already been decided by a jury . In 1970 the defendant in the Ashe v. Swenson accused of robbing seven poker players during a game . At first he was only tried for robbing one of the players and he was acquitted; the defense did not deny that the robbery had actually taken place. The state then went to trial against the defendant for robbing another player; stronger evidence led to conviction. However, the Supreme Court overturned the judgment. He ruled that because the defense had failed to prove that there had been no robbery, the jury's acquittal from the first trial must be based on the inference that the defendant's alibi was valid. Because a jury had already decided that the accused was not at the scene of the crime, the state could not renegotiate the matter.
Right to refuse to testify against yourself
The fifth amendment protects witnesses from being forced to testify against themselves. If a witness refuses to answer a question because the answer could incriminate him, this is referred to in the USA with the expressions to plead the fifth or to take the fifth (German: to appeal to the fifth [constitutional amendment]). The protection of the fifth amendment applies whenever a person is forced to testify, regardless of where that act takes place. The fifth amendment also applies in hearings before juries and before the US Congress . In the 1950s, for example, many witnesses who testified before the Committee for Un-American Activities and the Senate Internal Security Subcommittee (German: Subcommittee of the Senate for Internal Security) appealed to their rights guaranteed by the fifth amendment than they were supposed to Membership in the Communist Party of the USA were asked; In addition, countless defendants and witnesses in criminal cases against the Mafia relied on the fifth amendment to the constitution. With the incorporation doctrine, the Supreme Court extended the scope of the self-accusation clause to include the US states , citing the 14th amendment to the constitution .
In some cases, people may still be forced to reveal evidence that could be used against them in criminal cases. In 1927 the Supreme Court ruled in the United States v. Sullivan that no one could refuse to hand over his income tax return on the grounds that he would have to reveal his illegal sources of income. In 1965, however, the Supreme Court raised the Albertson v. SACB introduced a law requiring members of the Communist Party to register with the government. The rationale for this was that the law
-
[was] directed at a highly selective group inherently suspect of criminal activities.
(German: aimed at a carefully selected group of people who are naturally suspected of having committed crimes.)
Companies can also be forced to store and hand over their documents; the Supreme Court decided that the protection provided by the fifth amendment to the constitution only applies to “ natural persons ”. However, there are some limitations here; For example, someone must not be forced to keep records for a company if those records could be used against themselves.
In 1965 the Supreme Court ruled in the Griffin v. California that state authorities could not punish a defendant for exercising their right to remain silent by allowing prosecutors to ask the jury to infer guilty from the defendant's refusal to testify in his defense. As a result, an unconstitutional clause in the California Constitution that gave the prosecutors this right was repealed at the trial.
If the government gives someone immunity , then they can be forced to testify. Immunity can be transactional immunity or use immunity (German for example: immunity of actions and immunity of use); in the case of the former, the witness is protected against criminal prosecution in relation to the testimony; with the latter immunity, he may be prosecuted, but his testimony may not be used against him. The Supreme Court ruled that in order to compel someone to testify, the government only had to grant them use immunity . The use immunity must not only apply to the testimony made by the witness, but also to all evidence that is directly derived from this testimony. This scenario occurs most often in cases related to organized crime .
Protection under the Fifth Amendment often relates to police interrogations and confessions from suspects. Originally, under common law, any confession, regardless of the circumstances (even torture), could be used in court. This common law guideline has also been incorporated into US law by the courts. Brutal torture was used this way in some rural states until the 1930s to obtain confessions, and was only discontinued after the Supreme Court in cases such as Brown v. Mississippi (1936) repeatedly overturned judgments based on such confessions.
The police stations responded by using more sophisticated techniques, so next there were a number of cases where the court decided that physical torture was not the only act that made a confession involuntary and inadmissible in court. For example, in the Chambers v. Florida made a confession in 1940 after five days of interrogation during which the defendant was held in isolation; It was similar in the case of Ashcraft v. Tennessee , where a confession was made after police officers questioned the suspect under artificial light for 36 hours non-stop. In the case of Haynes v. Washington was recorded in 1963 that an “ unfair and inherently coercive context ”, such as prolonged questioning, would make a confession in court inadmissible.
The Miranda v. Arizona , which came before the Supreme Court in 1966, was a fundamental case for confessions. Ernesto Miranda had signed a document in which he confessed to having committed a crime, but the Supreme Court found that the confession could not be admitted in court because the accused had not been made aware of his rights. The court announced:
-
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. By custodial interrogation, we mean 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. 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. Prior to 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 .
(German: The prosecution may not use any [...] statements that stem from the interrogation of the defendant while he was in custody, unless it proves that procedural safeguards that are effective to safeguard the right against self-accusation were used By interrogation, we mean an interrogation initiated by law enforcement officers after someone has been detained or otherwise significantly deprived of their freedom of action. As for the procedural safeguards that must be used, if not others are perfect Effective means to inform the accused of their right to remain silent and to ensure an ongoing opportunity to exercise this right are devised, the following measures are required: Even before any questioning, the accused must be made aware that he has the right to remain silent, that every Statement he makes when Evidence can be used against him and that he has the right to either his or his assigned lawyer being present.)
The pre-interrogation notice to which Chief Justice Earl Warren was referring is now called Miranda Warning (German: Miranda Notice ).
The Miranda Warning was explained by several other judgments of the Supreme Court. In order for the information to be necessary, the accused must be questioned " [under] custodial [circumstances] " (German for example: in custody). A person in jail or in custody is deemed to be in police custody. Just being in a police station does not imply that the interrogation was conducted in custody unless a reasonable person in the suspect's situation would believe that he should not go away. The survey does not have to take place directly; For example, if two police officers were talking to incite the suspect to make a comment that incriminated him, that would constitute an interrogation. A respondent can waive their Miranda rights, but law enforcement will later have to prove that they did so.
A confession that is not preceded by a Miranda Warning (if one is necessary) cannot be admitted as evidence against the confessor in normal trials. The Supreme Court found, however, that if a defendant later voluntarily testified in court that he had not committed the crime, his confession could be brought in to challenge his credibility (referred to as to impeach the witness ; German for example: the witness accuse), even if the admission was not preceded by the Miranda Warning .
In the case of Hiibel v. Sixth Judicial Court of Nevada , on June 21, 2004, the Supreme Court ruled by five votes for and four against that neither the first, nor the fifth, nor the 14th amendment gave anyone the right to refuse to be questioned by the Police call his name.
Due process
The fifth constitutional amendment prohibits anyone without due process of law ( rule of law ) method is convicted. Due Process of Law grants procedural and substantive protection. The so-called procedural due process (German: appropriate procedural legal process) guarantees the right to fair and impartial legal proceedings that work on the basis of established rules and principles. Behind the so-called substantive due process (German: appropriate substantial legal process) hides the principle that laws and ordinances may only serve legitimate government purposes and may not be arbitrary or unfair. The due - process clause applies to all human beings, even for non-US citizens, as well as for corporations. The due process guarantee of the 5th constitutional amendment extends to the three branches of government of the USA, while the due process guarantee of the 14th constitutional amendment extends to the legislative, executive and judiciary branches of the USA, the US states.
expropriation
The Supreme Court found that the governments of the USA and the individual states are empowered to carry out expropriations - that is, to confiscate private property for " public purposes ". The fifth amendment limits the power to carry out expropriations, but by requiring that " fair compensation " be paid when private property is confiscated for public use. The fifth amendment clause that guarantees this reasonable compensation did not originally apply to the states, but the federal courts now believe that the 14th Amendment extended the content of this clause to the states. The federal courts evaluate the decisions of Congress, and even more so those of the state legislature, on the meaning of the phrase " for public purposes ":
The property does not have to be actually used by the public; rather, it must be used or used in a way that benefits the general good or the public interest. One exception to the US government's power is that the property must be used in the exercise of the government's enumerated powers.
The owner of property confiscated by the government must be adequately compensated. Any claims made by the owner that the property is intended for emergency use need not be taken into account when determining the amount to be paid. Usually, the fair compensation is determined by the market value of the confiscated property. If the property is confiscated before the owner is compensated, interest will be charged (even if the courts put it differently).
The federal courts have not stopped local or state governments from expropriating private property at the instigation of contractors for private commercial construction projects. This position was confirmed on June 23, 2005 when the Supreme Court in the Kelo v. New London passed its judgment. This judgment was very controversial and was actually only passed with a narrow majority of five votes in favor against four against. The majority, represented by Judge Stevens, felt it was appropriate to agree to the city's decision that the zoning plan had public utility. Judge Stevens said:
-
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.
(English: The city has carefully designed a zoning plan that it believes will have significant community benefits. These benefits include, but are not limited to, new jobs and increased tax revenues.)
Judge Kennedy, who agreed with Stevens, noted that the zoning plan was not in this particular case
-
of primary benefit to [...] the developer .
(German: of primary use [...] for the building contractor.)
However, he also stated that if the zoning plan were primarily of use to the contractor, it might be inadmissible. Judge Sandra Day O'Connor contested that this decision will allow the rich to get rich at the expense of the poor, stating:
-
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.
(German: All private property may now be expropriated for the benefit of other private individuals, but the consequences of this judgment will not be randomly distributed. Those who will benefit will likely be precisely those citizens who have disproportionate influence and power in politics, including large ones Companies and construction companies.)
She also stated:
-
[The decision eliminates] any distinction between private and public use of property — and thereby effectively [deletes] the words 'for public use' from the Takings Clause of the Fifth Amendment.
(German: [The judgment removes] any distinction between private and public purposes and [thereby] effectively removes the words “for public purposes” from the expropriation clause of the fifth constitutional amendment.)
See also
Individual evidence
- ^ The Supreme Court Glossary: Due Process of Law . Public Broadcasting Service. Retrieved March 6, 2013.
