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Fifth Amendment to the United States Constitution
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The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215. For instance, grand juries and the phrase "due process" both trace their origin to the Magna Carta.
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 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.[1] ”Grand jury
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 do not apply during grand jury proceedings. For example, the exclusionary rule does not apply to 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 (United States v. Calandra ). Also, defendants do not have the right to have their attorneys present in grand jury rooms during hearings; they would normally have such a right when during questioning by the police while in custody. The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment; in other words, it has not been ruled applicable to the states. States are thus free to abolish grand juries, and many (though not all) have replaced them with preliminary hearings. This was decided in Hurtado v. California, 110 U.S. 516 (1884), since "except in cases arising in the land and naval forces, or in the Militia," is held to indicate federal jurisdiction.
Whether a crime is "infamous" is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed (Ex parte Wilson, ), though crimes punishable by capital punishment are explicitly required within the text of the Fifth Amendment to be tried upon indictments. In United States v. Moreland, , the Supreme Court held that imprisonment in a prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime. Currently, federal law permits the trial of misdemeanors without indictments (Duke v. United States, ). Also, in the trial of those felonies in which capital punishment may not be applied, the prosecution may proceed without indictments if the defendants waive their Fifth Amendment right.
Indictments found by grand juries may be amended by the prosecution only in limited circumstances. In Ex Parte Bain (1887), the Supreme Court held that the indictment could not be changed at all by the prosecution. United States v. Miller, partly reversed the previous ruling; now, an indictment's scope may be 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, , 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 with indictments.[2]
Double jeopardy
The fifth amendment refers to being put in "jeopardy of life or limb." The clause, however, has been interpreted as providing protection regarding "every indictment or information charging a party with a known and defined crime or misdemeanor." The clause, it has been held, does not prevent separate trials by different governments, and the state and federal governments are considered "separate sovereigns". Therefore, one may be prosecuted for a crime in a state court, and prosecuted for the same crime in another state, a foreign country, or (most commonly) in a federal court.
Once acquitted, a defendant may not be retried for the same offense: Ball v. U.S. "A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense." 163 U.S. 662 at 672 (1896). Acquittal by a jury is generally final and cannot be appealed by the prosecution, Fong Foo v. United States, 369 U.S. 141 (1962). An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution, United States v. Jenkins, 420 U.S. 358 (1975). A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, the judge's determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated. Additionally, although a judge may overrule a guilty verdict by a jury, he or she does not have the same power to overrule a not guilty verdict.
Defendants may not be retried following conviction except in limited circumstances when the judge sees fit and proper. Bribing a judge to get an acquittal is not valid because the party acquitted has prevented themselves from being placed into "jeopardy" to begin with. Harry Aleman v. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al., 138 F.3d 302 (1998). If a defendant appeals a conviction and is successful in having it overturned, they are subject to retrial. An exception arises if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in Burks v. United States 437 U.S. 1, (1978), it was held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient." Another exception arises in cases of conviction for lesser offenses. For instance, if a defendant is charged with murder in the first degree, and is convicted by the jury of murder in the second degree, and later the jury's conviction is overturned on procedural grounds, the defendant may be retried for second degree but not first degree murder; the jury, by convicting the defendant of second degree murder, is deemed to have implicitly acquitted them of first degree murder.
The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed by the courts. Sentence increases may not, however, be made once the defendant has already begun serving his term of imprisonment. If a defendant's conviction is overturned on procedural grounds, the retrial may result in a harsher penalty than the original trial. The only exception is that the prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.
In Arizona v. Rumsey, 467 U.S. 203 (1984), it was ruled that in a bench trial, when a judge was holding a separate hearing after the jury trial, to decide if the defendant should be sentenced to death or life imprisonment, the judge decided that the circumstances of the case did not permit death to be imposed. On appeal the judge's ruling was found to be erroneous. However, even though the decision to impose life instead of death was based on an erroneous interpretation of the law by the judge, the conclusion of life imprisonment in the original case constituted an acquittal of the death penalty and thus death could not be imposed upon a subsequent trial. Even though the acquittal of the death penalty was erroneous in that case, the acquittal must stand.