The ‘Fifth Amendment’ also titled ‘Rights of Persons’ is the domicile of four fundamental rights whose intention is to ensure that persons indicted and subject to criminal proceedings get a fair trial. The gist of the Fifth Amendment is that no one should be held to answer for a crime or capital offense in the absence of a grand jury . It also outlines that a person should not be tried for the same offense twice in what is referred to as ‘ d ouble jeopardy . ’ Thirdly, a person cannot be compelled to be a witness against themselves or what is referred to as self-incrimination . F inally, private property should not be taken for public use without just compensation (U.S Constitution). The grand jury has its historical roots in the common and civil law of Athens, pre-Norman England, and the court of Assize of Clarendon which was promulgated by Henry II. In the colonies, it was first mentioned in 1683 in the Charter of Liberties and privileges passed by the first assembly elected in the colony of New York. It is a typical English institution introduced in the colonies by the first colonialists and later incorporated in the constitution by the founders of the Nation . In this regard, was this institution intended to work the same way as its counterpart in England ? This paper’s hypothesis is that the Fifth Amendment is one of the fundamental rights in the criminal justice jurisprudence . To expound on this, the paper will compare different cases according to the various clauses of the presence of a grand jury, double jeopardy, self-incrimination, and due process.
The Grand Jury
The main aim of a grand jury is to ensure that a person accused of a criminal or capital offense gets a fair trial . I t consists of jurors who are chosen from amongst ordinary folk, of similar standing or the peers of the accused ( Kuckes , 2004; Simmons , 2002) . T heir work is not hindered unnecessarily with procedural rules and evidential procedures, and they mostly follow their own knowledge. In the U.S , grand juries are fairly independent institutions that work under the guidance but not control of a prosecutor . T hey are convened as a body of laymen, free from technical rules of evidentiary procedure or constitutional restriction. They also work in secret . This is because they are under oath to indict anyone without prejudice or malice and only to set free an accused without any special favor. In addition to the function of returning criminal indictments, they also have the power to investigate, which is exercised through the issuance of summonses and questioning of witnessed without the limitations imposed by the constitution. This means that the juries may examine witnesses in the absence of their counsel and without informing them of the purpose of the interrogation.
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Another implication is that the exclusionary principle is not applicable, hence in grand jury proceedings, a witness summoned may be questioned based on knowledge obtained illegally in violation of the Fourth Amendment . A witness so summoned is not obliged to be informed of the possibility of indictment for the offense under question or that perjury in front of a grand jury is punishable. Significant cases have been decided in court cases to confirm that indeed the fourth amendment is inapplicable in grand jury subpoenas . This is in circumstances such as compulsion of a witness to appear as well as providing such evidence that no person expects privacy like speech recording or handwriting. Also, grand juries may issue reports of nonindictable behavior and malfeasance of public officers ( Simmons , 2002) . The rule of thumb is that, when an accused who is in danger of being subjected to an ‘infamous’ punishment is convicted, they have a right to insist that they shall only be put on trial upon the constitution of a grand jury. The definition of an infamous crime is that for which, the quality of the punishment consists of imprisonment in a state prison or penitentiary, with or without hard labor . It also entails imprisonment with hard labor in the workhouse of the District of Columbia ( Fairfax Jr , 2007) .
T he most important question is whether the offense is one for which the court is authorized to award such a punishment ( Kuckes , 2004) . The protection of indictment by grand jury applies to all people except the ones serving in the armed forces . I n the case of O’Callahan v. Parker , the court held that offenses that are not service - related cannot be tried under military law, but rather in a civilian court under the appropriate jurisdiction. This decision was set aside in 198 7. However, this was in favor of a decision in which the court emphasized that the constitution i s not violated where a court marshall is convened to try a serviceman who was in the armed forces during the commissioning of the offense charged. In addition, offenses against the laws of war, whether committed by citizens or aliens may be tried by a military court.
Double Jeopardy
This refers to the constitutional prohibition of an individual being subjected to the vagaries of being tried and the possibility of a conviction more than once for an alleged offense. This constitutional provision was designed to protect individuals from state machinery with all its resources and power from making repeated attempts to convict for an alleged offense (Roberts, 2002). This is because it would end up subjecting one to embarrassment, expense, ordeal, and a state of perpetual anxiety and insecurity . In this case, there is the probability that even though innocent, the individual may be found guilty. Under English common law development, the concept came to mean that one could plead a former conviction or the fa c t that they had been acquitted as a special plea of defense at the bar against the prosecution. In the U . S, the common law rule was in some instances limited to that under the English system , and in some cases, it was extended to bar a new trial even though the former trial was not concluded as an acquittal or a conviction.
There is a differing approach to the inclusion in several states bill of rights and amendments . F or instance, the version introduce d in the House of Representatives stated that no one should be subjected to more than one punishment or trial for the same offense, except for impeachment related cases. However, opposition in the house related mostly to the fact that if a defendant successfully appealed, they effectively would not be able to continue to defend ; that this would result in the freeing of the guilty ; and the practice by appellate courts of be ing reluctant to reverse convictions . Currently , the clause applies to both the state and federal jurisdictions . G enerally, this clause is meant to protect against the burden of multiple trials ( Poulin , 2006; Roberts, 2002). H ence , if a double jeopardy claim is raised and lost, an appeal is generally acceptable.
During the 1970’s numerous cases claimed double jeopardy . I nstead of clarity arising, confusion about this clause has deepened with highly inconsistent and unclear decisions . C lear and consistent guidelines are lacking with regard to the clause (Roberts, 2002). However, the consensus is that the purpose of the clause is only to protect final judgments relating to culpability leading to acquittal or conviction. Some justices have engage d in a kind of balancing of defendant rights and society rights to determine when reprosecution is valid in the case when a case terminates without basing on defendant culpability . Thus, one of the most important remaining areas of contention is what happens following judgment hinged on jeopardy.
Reprosecution Following Mistrial
Under the common law practice, the previous trial ends typically in judgment such as conviction or acquittal . H owever , under the U . S constitutional rule, the jeopardy clause attaches much earlier when a jury is sworn in or when the first evidence is presented during a case before a judge. T he consequence of this state of legal affairs is that if a trial is terminated for a particular reason, effectively, a second trial is barred even if the termination was erroneous. The main reason that jeopardy has been fixed at a time before judgment is related to the fundamental belief that the defendant has a valued right to have his trial completed by a given tribunal (Barry, 2012) . This arises from the fact that defendants have a legitimate interest in completing the trial in the first instance and concluding their confrontation with society . The defendants also wish to be spared the expense, ordeal of repeated trials, anxiety and insecurity of having to live with a continuing possibility of conviction , or the possibility that the prosecution may continue to strengthen its case with every attempt. It is with this in mind that the determination of the time when jeopardy attaches was made as well as the basis upon which evaluation of the validity of a retrial can be made depending on the reason for the premature termination of a trail.
A mistrial may be due to ‘manifest necessity . ’ This happens for instance in circumstances in which a verdict cannot be reached or where a trial clearly will not proceed further . The latter is often due to prosecutorial misconduct, an error or abuse of discretion by the judge. Therefore, as a matter of necessity, a balance has to be struck between the rights of the defendant and the public interest in a trial ending fairly . Thus, after a mistrial occasioned by a defective indictment, retrial is not barred in the interest of impartiality, a mutually satisfactory outcome and to avoid reversal on appeal. However, this was not the case of State of Idaho v. Galvan (2014), where Galvan was not able to confirm that a clear constitutional violation occurred . E ven assuming the prosecutor improperly referenced Galvan ’ s silence during in the closing argument, an error is bound to be harmless. As a result, Galvan ’ s judgment of conviction followed by sentencing for stalking in the first degree, as well as aggravated assault using a deadly weapon were affirmed.
Reprosecution Following Acquittal
The most fundamental cardinal rule of jeopardy jurisprudence is that a defendant may not be retried following an acquitta l (Poulin, 2003). This is because p articular importance is attached to an acquittal . Therefore, permitting the second trial after an acquittal for whatever reason presents a high risk of superior government resources overwhelming the defendant , even though innocent. Despite the fact that double jeopardy doctrine makes consideration for public safety interest in having an error - free trial go to the conclusion, no such balance accrues from a matter in respect of acquittals. In the case of acquittal by a grand jury, there exists little controversy regarding the stance that once a defendant is acquitted by a jury, the government has no option but to spare the defendant the adverse effects of a retrial through the institution of an appeal or institution of new prosecution. In these circumstances, it has been held by courts that once the results of a trial are set aside by invalidation of the first indictment for whatever reason, a judgment of acquittal must remain undisturbed (Poulin, 2003) . Similarly, in the case of acquittal by a trial judge, that decision must conclude the matter with no possibility of a retrial for the same offense.
It may be difficult to determine whether it was, in fact, an acquittal, dismissal or any other action, that the prosecution may be able to appeal . H owever, the critical question regards whether the ruling of the judge represents a solution. For instance, in a case where a deadlocked jury was discharged, the judge granted the defendants motion and the government barred from reintroducing the case. In the case of trial court rulings terminating the case before a verdict, two scenarios are envisaged . I f the judge declares a mistrial, the defendant is subject to retrial . H owever, if the judge acquits on the basis of insufficient evidence, then the defendant i s not subject to a retrial. For the purpose of reprosecution following convict ion , this depends on a successful appeal by the defendant and controversy over punishment, despite the fact that the sole purpose of double jeopardy jurisprudence is to protect the defendant against a second trial. On reversal of the defendant's appeal, a defendant may be retried under the assumption that appealing is a suggestion that a defendant has waived his objection to further prosecution by challenging the original conviction (U.S Constitution).
Self Incrimination
This concept originates from the maxim that ‘no one is bound to accuse themselves , ’ over a long time (Godsey, 2005). It also came to be owing to opposition ecclesiastical oathing , general acceptance of the principle that a person could not be expected to accuse themselves under oath in any proceeding before an official tribunal that se e ks criminal prosecution or before a magistrate investigating accusation against him. In the U.S , following the revolution, at least six states had embodied this principle in the i r constitutions . H owever, the prevailing interpretation is now wider than what previously existed. There is difficult y in courts trying to articulate the objectives underlying this privilege, with most citing a ‘complex of values . ’ The most common is that the privilege was designed to protect the innocent and to further the search for truth. The principle that the court has settled to is that the clause serves two purposes (Godsey, 2005). T he first is the preservation of an accusatorial system of criminal justice, and t he second is the preservation of personal privacy from unwarranted government intrusion. The privilege extends to both answers that support a conviction as well as those that would provide a link. This privilege is a personal one, and it cannot be utilized by or on behalf of any organization such as a corporate body. This is because a corporate entity cannot object on self-incrimination grounds to a subpoena of its records and books, compelled testimony or production of corporate documents.
Using examples from matrimonial law, this law may not protect against subpoenas for documents which are not privileged such as photos or telephone records from a third party such as a telephone company, bank or online service provider (Korman, 2012). The power to compel testimony and disclosure or the immunity statutes are not incompatible with the values of the self-incrimination clause. The immunity clauses seek a rational accommodation between the imperatives of privilege and legitimate demands of government to compel citizens to testify (U. S Constitution). As in the example of the matter of USA v. Allen and Conti (2016) in the appellate court addressing the Fifth Amendment, the court ruled in favor of the Fifth Amendment's denial of using compelled testimony in American criminal proce e dings even when a foreign country has compelled the testimony. Secondly, it reckoned that when the government makes use of a witness who had substantial exposure to a defendant's compelled testimony, it is required that under Kastigar v. United States , 406 U.S. 441 (1972), to confirm that at a minimum, the witness's review of the compelled testimony did not alter, affect or shape the evidence used by the government. Thirdly , that, a bare generalized denial of taint from a witness which has materially altered his or her testimony after being substantially exposed to a defendant's compelled testimony is sufficient to sustain the burden of proof by the prosecution. Fourth, that in this prosecution, the d efendant’s compelled testimony was used against them and this use before the small and grand juries was not harmless beyond a reasonable doubt. Accordingly , the prior judgment of conviction was reversed, and the indictment dismissed.
In yet another case, it was found that the trial ’ s court contempt findings were proper because the plaintiff’s testimony had been compelled . C onsequently , it was impossible for the testimony to be used against the defendant for any purpose. T herefore , t he matter could not go for retrial if an appeal was withheld or any other trial . Thus, as far as the state is concerned, because his compelled testimony could not be used, the plaintiff could not invoke his Fifth Amendment privilege not to testify. This argument was found to be flawed both in logic and in law . This is because the court cannot properly compel testimony from a witness who has legitimate Fifth Amendment privilege. A court may properly compel a witness to testify only when there is no space for a legitimate privilege . H ence, when a court orders a witness protected with the privilege to testify , t he witness retains that right to either exercise the privilege or to refuse to testify, and after that to test the validity of the privilege so enjoyed on appeal if the court finds him in contempt. In this case, the argument suggested that when a court improperly orders a witness to testify, it essentially grants him use of immunity . D espite proper exercise of privilege, the trial court lacks such power to grant immunity. In addition, the trial court in the present case did not intend to offer any immunity. It also did not suggest to the state that it should consider immunity as an option since it improperly concluded that the plaintiff no longer held a fifth amendment privilege against self-incrimination.
A representation by the state that it could not use plaintiff’s testimony at any subsequent proceeding due to fears of compulsion reflects a consideration that it should have, but did not, express at trial. Finally, in this case, the same argument expressed by the state herein was rejected expressly by the supreme court in Pillsbury Co. v. Conboy ( 1983 ). This was when it upheld that the federal district court could not hold the witness in contempt for adequately exercising his privilege against self-incrimination based on the trial court ’ s prediction that a future court would suppress that testimony and thereby not allow it to be used against the witness. It was therefore concluded that the trial court improperly established that the plaintiff could no longer invoke the privilege against self-incrimination due to his testimony in a prior proceeding, and hence the p r ayers of the states alternate grounds for affirming the judgment of contempt were rejected . A ccordingly, it was concluded that each of the contempt findings must be vacated. The judgment was reversed and the case remanded with direction s to vacate the contempt findings. In U .S v. Hullen , it was concluded that there was no violation of Hulen's right against self-incrimination because a proceeding aimed at revoking supervised release is not a criminal case in light of the Fifth Amendment, and the judgment was affirmed.
Confessions and Police Interrogation
Whenever a question arises in Courts in the U.S as to whether a confession is incompetent because it was not voluntary, the issue is controlled by that portion of the F ifth A mendment which demands that no person shall be compelled to a witness against themselves. This was amply demonstrated in Salinas v. Texas where it was found that before a petitioner could rely on the privilege against self-incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Criminal Appeals wa s affirmed. In this case , there was a dissenting judge, for the reasons the Fifth Amendment prohibits a prosecutor from commenting on Salinas’s silence.
The McNabb-Mallory Doctrine
In this case, the court promulgated a rule to exclude confessions obtained after an ‘unnecessary delay’ in presenting a suspect for arraignment after an arrest . I t was developed under the court's supervision over lower courts with concern especially for incommunicado interrogation and coerced confessions . H owever, the court did not specify a minimum duration. State Confession Cases
The court ha d set aside a conviction based on the fact that confessions from the defendants had been extorted through repeated whippings with ropes and studded belts. Through the consideration of the totality of circumstances, the court sought a balance to determine whether the confession was voluntary or coerced . This was by considering whether the interrogation process wa s used to over - reach helpless people.
Due Process
The due process clause embodies a system of rights based on moral principles deeply embedded in the traditions and feelings of civilized people and society . I t corresponds with what is fair, just and right (Orth, 2003) . This principle dates back to the Magna Carta, in which King John promised no imprisonment, seizing, exiling, or destroying of any person without lawful judgment. The scope of this principle includes the legislative, the executive and the judicial powers of the governmen t.
References
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Korman, J.W. (2012). Adultery and the fifth amendment. The matrimonial strategist .
Kuckes, N. (2004). The Useful, Dangerous Fiction of Grand Jury Independence. Am. Crim. L. Rev. , 41 , 1.
Orth, J. V. (2003). Due process of law: a brief history . Univ Pr of Kansas.
Poulin, A. B. (2006). Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot. U. Colo. L. Rev. , 77 , 595.
Poulin, A. B. (2003). Double Jeopardy Protection from Successive Prosecution: A Proposed Approach. Geo. LJ , 92 , 1183.
Roberts, P. (2002). Double jeopardy law reform: A criminal justice commentary. The Modern Law Review , 65 (3), 393-424.
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