The Constitution of the United States of America: Analysis and Interpretation Part 153

[61] Carroll _v._ United States, 267 U.S. 132, 153-156 (1925). Husty _v._ United States, 282 U.S. 694 (1931); Brinegar _v._ United States, 338 U.S. 160 (1949).

[62] Scher _v._ United States, 305 U.S. 251 (1938).

[63] United States _v._ Di Re, 332 U.S. 581 (1948).

[64] Weeks _v._ United States, 232 U.S. 383 (1914). This case was a virtual repudiation of Adams _v._ New York, 192 U.S. 585, 597 (1904).

There the Supreme Court had ruled that in criminal proceedings in a State court the use of private papers obtained by unlawful search and seizure "was no violation of the const.i.tutional guaranty of privilege from unlawful search or seizure." It added: "Nor do we think the accused was compelled to incriminate himself."

[65] Wolf _v._ Colorado, 338 U.S. 25, 29, 38 (1949); 8 Wigmore on Evidence (3d ed.) -- 2184 (1940).

[66] 338 U.S. 25 (1949).

[67] Ibid. 33.

[68] Burdeau _v._ McDowell, 256 U.S. 465 (1921).

[69] Byars _v._ United States, 273 U.S. 28, 33 (1927).

[70] Ibid. 32; l.u.s.tig _v._ United States, 338 U.S. 74 (1949).

[71] Gambino _v._ United States, 275 U.S. 310 (1927).

[72] l.u.s.tig _v._ United States, 338 U.S. 74, 78, 79 (1949).

[73] McGuire _v._ United States, 273 U.S. 95 (1927).

[74] 251 U.S. 385 (1920).

[75] Ibid. 392.

[76] United States _v._ Wallace & Tiernan Co., 336 U.S. 793 (1949).

[77] Zap _v._ United States, 328 U.S. 624 (1946).

[78] American Tobacco Co. _v._ Werckmeister, 207 U.S. 284, 302 (1907).

AMENDMENT 5

RIGHTS OF PERSONS

Page Rights of accused persons 837 The grand jury clause 837 Double jeopardy 838 Self-incrimination 841 Source of the clause 841 Due process of law 844 Source and evolution of the meaning of the term 844 Scope of the guaranty 846 Procedural due process 846 General 846 Criminal prosecutions 847 Notice and hearing 847 Evidence and presumption in judicial proceedings 848 Administrative proceedings 849 Fair hearing 849 Judicial review 850 Aliens 851 Deportation 852 Substantive due process 853 Discrimination 853 Deprivation of liberty 854 Deprivation of property 855 Retroactive legislation sustained 855 Retroactive legislation disallowed 857 Bankruptcy legislation 857 Right to sue the government 858 Congressional police measures 859 The postal service 859 Regulation of public utilities 860 Regulation of railroads 861 Taxation 862 Retroactive taxes 863 Governance of the Indians 864 The national eminent domain power 864 Scope of power 864 Alien property 865 Public use 865 Rights for which compensation must be made 866 When property is taken 867 Navigable waters 867 Just compensation 869 Interest 871 Enforcement of right to compensation 872

RIGHTS OF PERSONS

Amendment 5

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.

Rights of Accused Persons

THE GRAND JURY CLAUSE

Within the meaning of this article a crime is made "infamous" by the quality of the punishment which may be imposed.[1] The Court has recognized that: "What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another."[2] Imprisonment in a State prison or penitentiary, with or without hard labor,[3] or imprisonment at hard labor in the workhouse of the District of Columbia,[4] falls within this category. The pivotal question is whether the offense is one for which the Court is authorized to award such punishment; the sentence actually imposed is immaterial.

When an accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.[5] Thus, an act which authorizes imprisonment at hard labor for one year, as well as deportation, of Chinese aliens found to be unlawfully within the United States, creates an offense which can be tried only upon indictment.[6] Counterfeiting,[7] fraudulent alteration of poll books,[8] fraudulent voting,[9] and embezzlement[10] have been declared to be infamous crimes. It is immaterial how Congress has cla.s.sified the offense.[11] An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of "petty offenses."[12]

A person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument. A change in the indictment deprives the court of the power to try the accused.[13] There is no const.i.tutional requirement that an indictment be presented by a grand jury in a body; an indictment delivered by the foreman in the absence of the other grand jurors is valid.[14]

The words "when in actual service in time of war or public danger" apply to the militia only. All persons in the regular army or navy are subject to court martial rather than indictment or trial by jury, at all times.[15] The exception of "cases arising in the land or naval forces"

was not aimed at trials of offenses against the laws of war. Its objective was to authorize trial by court martial of the members of the Armed Forces for all that cla.s.s of crimes which under the Fifth and Sixth Amendments might otherwise have been deemed triable in the civil court. Either citizen or alien enemy belligerents may be tried by a military commission for offenses against the laws of war.[16]

DOUBLE JEOPARDY

By the common law not only was a second punishment for the same offense prohibited, but a second trial was forbidden whether or not the accused had suffered punishment, or had been acquitted or convicted.[17] This clause embraces all cases wherein a second prosecution is attempted for the same violation of law, whether felony or misdemeanor.[18]

Seventy-five years ago a closely divided Court held that the protection against double jeopardy prevented an appeal by the Government after a verdict of acquittal.[19] A judgment of acquittal on the ground of the bar of the statute of limitations is a protection against a second trial,[20] as is also a general verdict of acquittal upon an issue of not guilty to an indictment which was not challenged as insufficient before the verdict.[21] Where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized either punishment, but not both, it could not, after the fine had been paid, during the same term of court, change its judgment by sentencing the defendant to imprisonment.[22] But where a statute carried a minimum mandatory sentence of both a fine and imprisonment, the imposition of the minimum fine five hours after the court had erroneously sentenced the defendant to imprisonment only did not amount to double jeopardy.[23] Whether or not the discontinuance of a trial without a verdict bars a second trial depends upon the circ.u.mstances of each case.[24] Discharge of a jury because it is unable to reach an agreement[25] or because of the disqualification of a juror[26] does not preclude a second trial. Where, after a demurrer to the indictment was overruled, a jury was impaneled and witnesses sworn, the discharge of the jury to permit the defendant to be arraigned did not bar a trial before a new jury.[27] The withdrawal of charges after a trial by a general court martial had begun, because the tactical situation brought about by the rapid advance of the army made continuance of the trial impracticable, did not bar a trial before a second court martial.[28] An accused is not put in jeopardy by preliminary examination and discharged by the examining magistrate,[29] by an indictment which is quashed,[30]

nor by arraignment and pleading to the indictment.[31] In order to bar prosecution, a former conviction must be pleaded.[32]

A plea of former jeopardy must be upon a prosecution for the same identical offense.[33] The test of ident.i.ty of offenses is whether the same evidence is required to sustain them; if not, the fact that both charges relate to one transaction does not make a single offense where two are defined by the statutes.[34] Where a person is convicted of a crime which includes several incidents, a second trial for one of those incidents puts him twice in jeopardy.[35] Congress may impose both criminal and civil sanctions with respect to the same act or omission,[36] and may separate a conspiracy to commit a substantive offense from the commission of the offense and affix to each a different penalty.[37] A conviction for the conspiracy may be had though the subsequent offense was not completed.[38] Separate convictions under different counts charging a monopolization and a conspiracy to monopolize trade, in an indictment under the Sherman Ant.i.trust Act, do not amount to double jeopardy.[39] In United States _v._ National a.s.sociation of Real Estate Boards,[40] the Court held that an acquittal in a criminal suit charging violation of the Sherman Act does not prevent the issuance of an injunction against future violations. It distinguished but did not overrule an early case which held that where an issue as to the existence of a fact or act had been tried in a criminal proceeding inst.i.tuted by the United States, a judgment of acquittal, was conclusive in a subsequent proceeding _in rem_ involving the same matter.[41]

A civil action to recover taxes which were in fact penalties for violation of another statute was held to be punitive in character and barred by a prior conviction of the defendant for a criminal offense involving the same transaction.[42] In contrast, the additional income tax imposed when a fraudulent return is filed, was found to be a civil sanction designed to protect the revenue, which might be a.s.sessed after acquittal of the defendant for the same fraud.[43] A forfeiture proceeding for defrauding the Government of a tax on alcohol diverted to beverage uses is a proceeding _in rem_, rather than a punishment for a criminal offense, and may be prosecuted after a conviction of conspiracy to violate the statute imposing the tax.[44]

In an early case, the Court a.s.serted that since robbery on the high seas is considered an offense within the criminal jurisdiction of all nations, the plea of _autre fois acquit_ would be good in any civilized State, though resting on a prosecution inst.i.tuted in the courts of any other civilized State.[45] It has held, however, that where the same act is an offense against both the State and Federal Governments, its prosecution and punishment by both Governments is not double jeopardy.[46] A contumacious witness is not twice subjected to jeopardy for refusing to testify before a committee of the United States Senate, by being punished for contempt of the Senate and also indicted for a misdemeanor for such refusal.[47]

Self-Incrimination

SOURCE OF THE CLAUSE

"Nor shall be compelled in any criminal case to be a witness against himself." The source of this clause was the maxim that "no man is bound to accuse himself (_nemo tenetur prodere_--or _accusare seipsum_),"

which was brought forward in England late in the sixteenth century in protest against the inquisitorial methods of the ecclesiastical courts.

At that time the common law itself permitted accused defendants to be questioned. What the advocates of the maxim meant was merely that a person ought not to be put on trial and compelled to answer questions to his detriment unless he had first been properly accused, i.e., by the grand jury. But the idea once set going gained headway rapidly, especially after 1660, when it came to have attached to it most of its present-day corollaries.[48]

Under the clause a _witness_ in any proceeding whatsoever in which testimony is legally required may refuse to answer any question, his answer to which might be used against him in a future criminal proceeding, or which might uncover further evidence against him.[49] The witness must explicitly claim his const.i.tutional immunity or he will be considered to have waived it;[50] but he is not the final judge of the validity of his claim.[51] The privilege exists solely for the protection of the witness himself, and may not be claimed for the benefit of third parties.[52] The clause does not impair the obligation of a witness to testify if a prosecution against him is barred by lapse of time, by statutory enactment, or by a pardon;[53] but the effect of a mere tender of pardon by the President remains uncertain.[54] A witness may not refuse to answer questions on the ground that he would thereby expose himself to prosecution by a state.[55] Conversely, the admission against a defendant in a federal court of testimony given by him in a state court under a statute of immunity is valid.[56] If an accused takes the stand in his own behalf, he must submit to cross-examination;[57] while if he does not, it is by no means certain that the trial judge in a federal court may not, without violation of the clause, draw the jury's attention to the fact.[58] Neither does the Amendment preclude the admission in evidence against an accused of a confession made while in the custody of officers, if the confession was made freely, voluntarily, and without compulsion or inducement of any sort.[59] But in McNabb _v._ United States the Court[60] reversed a conviction in a federal court, based on a confession obtained by questioning the defendants for prolonged periods in the absence of friends and counsel and without their being brought before a commissioner or judicial officer, as required by law. Without purporting to decide the const.i.tutional issue, Justice Frankfurter's opinion urged the duty of the Court, in supervising the conduct of the lower federal courts, to establish and maintain "civilized standards of procedure and evidence."[61] An individual who has acquired income by illicit means is not excused from making out an income tax return because he might thereby expose himself to a criminal prosecution by the United States.

"He could not draw a conjurer's circle around the whole matter," said Justice Holmes, "by his own declaration that to write any word upon the government blank would bring him into danger of the law."[62] But a witness called to testify before a federal grand jury as to his relations with the Communist Party cannot, in view of existing legislation touching the subject, be compelled to answer.[63]he clause does not require the exclusion of the body of an accused as evidence of his ident.i.ty;[64] but the introduction into evidence against one who was being prosecuted by a State for illegal possession of morphine of two capsules which he had swallowed and had then been forced by the police to disgorge, was held to violate due process of law.[65]

A bankrupt is not deprived of his const.i.tutional right not to testify against himself by an order requiring him to surrender his books to a duly authorized receiver.[66] He may not object to the use of his books and papers as incriminating evidence against him while they are in the custody of the bankruptcy court;[67] nor may he condition their delivery by requiring a guaranty that they will not be used as incriminating evidence.[68] The filing of schedules by a bankrupt does not waive his right to refuse to answer questions pertaining to them when to do so may incriminate him.[69] A disclosure, not amounting to an actual admission of guilt or of incriminating facts, does not deprive him of the privilege of stopping short in his testimony whenever it may fairly tend to incriminate him.[70] The rule against self-incrimination may be invoked by a bankrupt (in the absence of any statute affording him complete immunity) when being examined concerning his estate.[71]

The privilege of witnesses, being a purely personal one, may not be claimed by an agent or officer of a corporation either in its behalf or in his own behalf as regards books and papers of the corporation;[72]

and the same rule holds in the case of the custodian of the records of a labor union;[73] nor does the Communist Party enjoy any immunity as to its books and records.[74] Finally, this Amendment, in connection with the interdiction of the Fourth Amendment against unreasonable searches and seizures, protects an individual from the compulsory production of private papers which would incriminate him.[75] The scope of this latter privilege was, however, greatly narrowed by the decision in Shapiro _v._ United States.[76] There, by a five-to-four majority, the Court held that the privilege against self incrimination does not extend to books and records which an individual is required to keep to evidence his compliance with lawful regulations. A conviction for violation of OPA regulations was affirmed, as against the contention that the prosecution was barred because the accused had been compelled over claim of const.i.tutional immunity to produce records he was required to keep under applicable OPA orders. After construing the statutory immunity as inapplicable to the case, Chief Justice Vinson disposed of the const.i.tutional objections by a.s.serting that "the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.'"[77]