FIFTH AMENDMENT

RIGHTS OF PERSONS

CONTENTS

Page

Indictment By Grand Jury ....................................................................................................... 1465

Double Jeopardy ........................................................................................................................ 1471

Development and Scope ..................................................................................................... 1471

Reprosecution Following Mistrial ..................................................................................... 1477

Reprosecution Following Acquittal .................................................................................... 1481

Acquittal by Jury ........................................................................................................ 1483

Acquittal by the Trial Judge ...................................................................................... 1484

Trial Court Rulings Terminating Trial Before Verdict ............................................. 1485

Reprosecution Following Conviction ................................................................................. 1487

Reprosecution After Reversal on Defendant’s Appeal .............................................. 1487

Sentence Increases ...................................................................................................... 1489

“For the Same Offence” ...................................................................................................... 1491

Legislative Discretion as to Multiple Sentences ...................................................... 1491

Successive Prosecutions for “the Same Offense” ...................................................... 1494

The “Same Transaction” Problem .............................................................................. 1495

Self-Incrimination ...................................................................................................................... 1497

Development and Scope ..................................................................................................... 1497

The Power To Compel Testimony and Disclosure ............................................................ 1509

Immunity ..................................................................................................................... 1509

Required Records Doctrine ......................................................................................... 1512

Reporting and Disclosure ........................................................................................... 1514

Confessions: Police Interrogation, Due Process, and Self-Incrimination ....................... 1518

The Common Law Rule .............................................................................................. 1518

McNabb-Mallory Doctrine .......................................................................................... 1519

State Confession Cases Before Miranda ................................................................... 1521

From the Voluntariness Standard to Miranda ......................................................... 1524

Miranda v. Arizona ...................................................................................................... 1527

The Operation of the Exclusionary Rule .......................................................................... 1540

Supreme Court Review ............................................................................................... 1540

Procedure in the Trial Courts .................................................................................... 1541

Due Process ................................................................................................................................ 1543

History and Scope .............................................................................................................. 1543

Scope of the Guaranty ................................................................................................ 1544

Procedural Due Process ..................................................................................................... 1546

Generally ...................................................................................................................... 1548

Administrative Proceedings: A Fair Hearing ............................................................ 1548

Aliens: Entry and Deportation ................................................................................... 1552

Judicial Review of Administrative or Military Proceedings .................................... 1556

Substantive Due Process ................................................................................................... 1558

Discrimination ............................................................................................................. 1558

Congressional Police Measures .................................................................................. 1561

Congressional Regulation of Public Utilities ............................................................ 1562

Congressional Regulation of Railroads ...................................................................... 1562

1463
Due Process—Continued

Substantive Due Process—Continued

Taxation ........................................................................................................................ 1564

Retroactive Taxes ........................................................................................................ 1565

Deprivation of Property: Retroactive Legislation ..................................................... 1567

Bankruptcy Legislation ............................................................................................... 1569

Right to Sue the Government .................................................................................... 1570

Congressional Power to Abolish Common Law Judicial Actions ............................ 1571

Deprivation of Liberty: Economic Legislation .......................................................... 1571

National Eminent Domain Power ............................................................................................ 1572

Overview .............................................................................................................................. 1572

Public Use ........................................................................................................................... 1574

Just Compensation ............................................................................................................. 1578

Interest ......................................................................................................................... 1580

Rights for Which Compensation Must Be Made ...................................................... 1580

Consequential Damages .............................................................................................. 1583

Enforcement of Right to Compensation .................................................................... 1584

When Property Is Taken .................................................................................................... 1585

Government Activity Not Directed at the Property ................................................. 1586

Navigable Waters ........................................................................................................ 1587

Regulatory Takings ..................................................................................................... 1588

1464 AMENDMENT 5—RIGHTS OF PERSONS
RIGHTS OF PERSONS

FIFTH AMENDMENT

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.

INDICTMENT BY GRAND JURY

The history of the grand jury is rooted in the common and civil

law, extending back to Athens, pre-Norman England, and the Assize of Clarendon promulgated by Henry II.1 The right seems to have

been first mentioned in the colonies in the Charter of Liberties and

Privileges of 1683, which was passed by the first assembly permitted to be elected in the colony of New York.2 Included from the first

in Madison’s introduced draft of the Bill of Rights, the provision

elicited no recorded debate and no opposition. “The grand jury is

an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There

is every reason to believe that our constitutional grand jury was

intended to operate substantially like its English progenitor. The

basic purpose of the English grand jury was to provide a fair method

for instituting criminal proceedings against persons believed to have

committed crimes. Grand jurors were selected from the body of the

people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on

1 Morse, A Survey of the Grand Jury System, 10 ORE. L. REV. 101 (1931).

2 1 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 162, 166 (1971).

The provision read: “That in all Cases Capital or Criminal there shall be a grand

Inquest who shall first present the offence. . . .”

1465
such information as they deemed satisfactory. Despite its broad power

to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independence in England free

from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal

cases shows the high place it held as an instrument of justice. And

in this country as in England of old the grand jury has convened

as a body of laymen, free from technical rules, acting in secret, pledged

to indict no one because of prejudice and to free no one because of

special favor.” 3

The prescribed constitutional function of grand juries in federal courts 4

is to return criminal indictments, but the juries serve

a considerably broader series of purposes as well. Principal among

these is the investigative function, which is served through the fact

that grand juries may summon witnesses by process and compel

testimony and the production of evidence generally. Operating in

secret, under the direction but not control of a prosecutor, not bound

by many evidentiary and constitutional restrictions, such juries may

examine witnesses in the absence of their counsel and without informing them of the object of the investigation or the place of the

witnesses in it.5 The exclusionary rule is inapplicable in grand jury

3 Costello v. United States, 350 U.S. 359, 362 (1956). “The grand jury is an integral part of our constitutional heritage which was brought to this country with the

common law. The Framers, most of them trained in the English law and traditions,

accepted the grand jury as a basic guarantee of individual liberty; notwithstanding

periodic criticism, much of which is superficial, overlooking relevant history, the grand

jury continues to function as a barrier to reckless or unfounded charges . . . . Its

historic office has been to provide a shield against arbitrary or oppressive action, by

insuring that serious criminal accusations will be brought only upon the considered

judgment of a representative body of citizens acting under oath and under judicial

instruction and guidance.” United States v. Mandujano, 425 U.S. 564, 571 (1976)

(plurality opinion). See id. at 589–91 (Justice Brennan concurring).

4 This provision applies only in federal courts and is not applicable to the states,

either as an element of due process or as a direct command of the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516 (1884); Palko v. Connecticut, 302 U.S. 319,

323 (1937); Alexander v. Louisiana, 405 U.S. 625, 633 (1972).

5 Witnesses are not entitled to have counsel present in the room. FED. R. CIV. P.

6(d). The validity of this restriction was asserted in dictum in In re Groban, 352

U.S. 330, 333 (1957), and inferentially accepted by the dissent in that case. Id. at

346–47 (Justice Black, distinguishing grand juries from the investigative entity before the Court). The decision in Coleman v. Alabama, 399 U.S. 1 (1970), deeming

the preliminary hearing a “critical stage of the prosecution” at which counsel must

be provided, called this rule in question, inasmuch as the preliminary hearing and

the grand jury both determine whether there is probable cause with regard to a

suspect. See id. at 25 (Chief Justice Burger dissenting). In United States v. Mandujano,

425 U.S. 564, 581 (1976) (plurality opinion), Chief Justice Burger wrote: “Respondent was also informed that if he desired he could have the assistance of counsel,

but that counsel could not be inside the grand jury room. That statement was plainly

a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play.” By

1466 AMENDMENT 5—RIGHTS OF PERSONS
proceedings, with the result that a witness called before a grand

jury may be questioned on the basis of knowledge obtained through

the use of illegally seized evidence.6 In thus allowing the use of evidence obtained in violation of the Fourth Amendment, the Court

nonetheless restated the principle that, although free of many rules

of evidence that bind trial courts, grand juries are not unrestrained by constitutional consideration.7 A witness called before a

grand jury is not entitled to be informed that he may be indicted

for the offense under inquiry 8 and the commission of perjury by a

emphasizing the point of institution of criminal proceedings, relevant to the right of

counsel at line-ups and the like, the Chief Justice not only reasserted the absence

of a right to counsel in the room but also, despite his having referred to it, cast

doubt upon the existence of any constitutional requirement that a grand jury witness be permitted to consult with counsel out of the room, and, further, raised the

implication that a witness or putative defendant unable to afford counsel would have

no right to appointed counsel. Concurring, Justice Brennan argued that access to

counsel was essential and constitutionally required for the protection of constitutional rights; Brennan accepted the likelihood, without agreeing, that consultation

outside the room would be adequate to preserve a witness’ rights, id. at 602–09 (with

Justice Marshall). Justices Stewart and Blackmun reserved judgment. Id. at 609.

The dispute appears ripe for revisiting.

6 United States v. Calandra, 414 U.S. 338 (1974). The Court has interpreted a

provision of federal wiretap law, 18 U.S.C. § 2515, to prohibit use of unlawful wiretap information as a basis for questioning witnesses before grand juries. Gelbard v.

United States, 408 U.S. 41 (1972).

7 “Of course, the grand jury’s subpoena power is not unlimited. It may consider

incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law. . . . Although, for example,

an indictment based on evidence obtained in violation of a defendant’s Fifth Amendment privilege is nevertheless valid . . . , the grand jury may not force a witness to

answer questions in violation of that constitutional guarantee. . . . Similarly, a grand

jury may not compel a person to produce books and papers that would incriminate

him. . . . The grand jury is also without power to invade a legitimate privacy interest protected by the Fourth Amendment. A grand jury’s subpoena duces tecum will

be disallowed if it is ‘far too sweeping in its terms to be regarded as reasonable’

under the Fourth Amendment. Hale v. Henkel, 201 U.S. 43, 76 (1906). Judicial supervision is properly exercised in such cases to prevent the wrong before it occurs.”

United States v. Calandra, 414 U.S. 338, 346 (1974). See also United States v. Dionisio,

410 U.S. 1, 11–12 (1973). Grand juries must operate within the limits of the First

Amendment and may not harass the exercise of speech and press rights. Branzburg

v. Hayes, 408 U.S. 665, 707–08 (1972). Protection of Fourth Amendment interests is

as extensive before the grand jury as before any investigative officers, Silverthorne

Lumber Co. v. United States, 251 U.S. 385 (1920); Hale v. Henkel, 201 U.S. 43, 76–77

(1906), but not more so either. United States v. Dionisio, 410 U.S. 1 (1973) (subpoena to give voice exemplars); United States v. Mara, 410 U.S. 19 (1973) (handwriting exemplars). The Fifth Amendment’s Self-Incrimination Clause must be respected. Blau v. United States, 340 U.S. 159 (1950); Hoffman v. United States, 341

U.S. 479 (1951). On common-law privileges, see Blau v. United States, 340 U.S. 332

(1951) (husband-wife privilege); Alexander v. United States, 138 U.S. 353 (1891)

(attorney-client privilege). The traditional secrecy of grand jury proceedings has been

relaxed a degree to permit a limited discovery of testimony. Compare Pittsburgh Plate

Glass Co. v. United States, 360 U.S. 395 (1959), with Dennis v. United States, 384

U.S. 855 (1966). See Fed. R. Crim. P. 6(e) (secrecy requirements and exceptions).

8 United States v. Washington, 431 U.S. 181 (1977). Because defendant when

he appeared before the grand jury was warned of his rights to decline to answer

AMENDMENT 5—RIGHTS OF PERSONS 1467
witness before the grand jury is punishable, irrespective of the nature of the warning given him when he appears and regardless of

the fact that he may already be a putative defendant when he is

called.9

Of greater significance were two cases in which the Court held

the Fourth Amendment to be inapplicable to grand jury subpoenas

requiring named parties to give voice exemplars and handwriting

samples to the grand jury for identification purposes.10 According

to the Court, the issue turned on a dual inquiry—“whether either

the initial compulsion of the person to appear before the grand jury,

or the subsequent directive to make a voice recording is an unreasonable ‘seizure’ within the meaning of the Fourth Amendment.” 11

First, a subpoena to appear was held not to be a seizure, because

it entailed significantly less social and personal affront than did an

arrest or an investigative stop, and because every citizen has an

obligation, which may be onerous at times, to appear and give whatever aid he may to a grand jury.12 Second, the directive to make a

voice recording or to produce handwriting samples did not bring the

Fourth Amendment into play because no one has any expectation

of privacy in the characteristics of either his voice or his handwriting.13 Because the Fourth Amendment was inapplicable, there was

no necessity for the government to make a preliminary showing of

the reasonableness of the grand jury requests.

Besides indictments, grand juries may also issue reports that

may indicate nonindictable misbehavior, mis- or malfeasance of pubquestions on the basis of self-incrimination, the decision was framed in terms of those

warnings, but the Court twice noted that it had not decided, and was not deciding,

“whether any Fifth Amendment warnings whatever are constitutionally required for

grand jury witnesses . . . .” Id. at 186.

9 United States v. Mandujano, 425 U.S. 564 (1976); United States v. Wong, 431

U.S. 174 (1977). Mandujano had been told of his right to assert the privilege against

self-incrimination, of the consequences of perjury, and of his right to counsel, but

not to have counsel with him in the jury room. Chief Justice Burger and Justices

White, Powell, and Rehnquist took the position that no Miranda warning was required because there was no police custodial interrogation and that in any event

commission of perjury was not excusable on the basis of lack of any warning. Justices Brennan, Marshall, Stewart, and Blackmun agreed that whatever rights a grand

jury witness had, perjury was punishable and not to be excused. Id. at 584, 609.

Wong was assumed on appeal not to have understood the warnings given her and

the opinion proceeds on the premise that absence of warnings altogether does not

preclude a perjury prosecution.

10 United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S.

19 (1973).

11 Dionisio, 410 U.S. at 9.

12 410 U.S. at 9–13.

13 410 U.S. at 13–15. The privacy rationale proceeds from Katz v. United States,

389 U.S. 347 (1967).

1468 AMENDMENT 5—RIGHTS OF PERSONS
lic officers, or other objectionable conduct.14 Despite the vast power

of grand juries, there is little in the way of judicial or legislative

response designed to impose some supervisory restrictions on them.15

Within the meaning of this article a crime is made “infamous”

by the quality of the punishment that may be imposed.16 “What punishments shall be considered as infamous may be affected by the

changes of public opinion from one age to another.” 17 Imprisonment in a state prison or penitentiary, with or without hard labor,18 or imprisonment at hard labor in the workhouse of the District of Columbia,19 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 the 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.” 20 Thus, an act that authorized imprisonment at hard labor

for one year, as well as deportation, of Chinese aliens found to be

unlawfully within the United States, created an offense that could

be tried only upon indictment.21 Counterfeiting,22 fraudulent alteration of poll books,23 fraudulent voting,24 and embezzlement,25 have

been declared to be infamous crimes. It is immaterial how Congress has classified the offense.26 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

14 The grand jury “is a grand inquest, a body with powers of investigation and

inquisition, the scope of whose inquiries is not to be limited narrowly by questions

of propriety or forecasts of whether any particular individual will be found properly

subject to an accusation of crime.” Blair v. United States, 250 U.S. 273, 281 (1919).

On the reports function of the grand jury, see In re Grand Jury January, 1969, 315

F. Supp. 662 (D. Md. 1970), and Report of the January 1970 Grand Jury (Black

Panther Shooting) (N.D. Ill., released May 15, 1970). Congress has now specifically

authorized issuance of reports in cases concerning public officers and organized crime.

18 U.S.C. § 333.

15 Congress has required that in the selection of federal grand juries, as well as

petit juries, random selection of a fair cross section of the community is to take place,

and has provided a procedure for challenging discriminatory selection by moving to

dismiss the indictment. 28 U.S.C. §§ 1861–68. Racial discrimination in selection of

juries is constitutionally proscribed in both state and federal courts. See discussion

under “Juries,” infra.

16 Ex parte Wilson, 114 U.S. 417 (1885).

17 114 U.S. at 427.

18 Mackin v. United States, 117 U.S. 348, 352 (1886).

19 United States v. Moreland, 258 U.S. 433 (1922).

20 Ex parte Wilson, 114 U.S. 417, 426 (1885).

21 Wong Wing v. United States, 163 U.S. 228, 237 (1896).

22 Ex parte Wilson, 114 U.S. 417 (1885).

23 Mackin v. United States, 117 U.S. 348 (1886).

24 Parkinson v. United States, 121 U.S. 281 (1887).

25 United States v. DeWalt, 128 U.S. 393 (1888).

26 Ex parte Wilson, 114 U.S. 417, 426 (1885).

AMENDMENT 5—RIGHTS OF PERSONS 1469
the punishment exceeds that specified in the statutory definition of

“petty offenses.” 27

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.28 A change in the indictment that does not

narrow its scope deprives the court of the power to try the accused.29 Although additions to offenses alleged in an indictment are

prohibited, the Court has now ruled that it is permissible “to drop

from an indictment those allegations that are unnecessary to an

offense that is clearly contained within it,” as, for example, a lesser

included offense.30 There being no constitutional requirement that

an indictment be presented by a grand jury in a body, an indictment delivered by the foreman in the absence of other grand jurors

is valid.31 If valid on its face, an indictment returned by a legally

constituted, non-biased grand jury satisfies the requirement of the

Fifth Amendment and is enough to call for a trial on the merits; it

is not open to challenge on the ground that there was inadequate

or incompetent evidence before the grand jury.32

The protection of indictment by grand jury extends to all persons except those serving in the armed forces. All persons in the

regular armed forces are subject to court martial rather than grand

jury indictment or trial by jury.33 The exception’s limiting words “when

in actual service in time of war or public danger” apply only to members of the militia, not to members of the regular armed forces. In

1969, in O’Callahan v. Parker, the Court held that offenses that

are not “service connected” may not be punished under military law,

but instead must be tried in the civil courts in the jurisdiction where

27 Duke v. United States, 301 U.S. 492 (1937).

28 See Stirone v. United States, 361 U.S. 212 (1960), which held that a variation

between pleading and proof deprived petitioner of his right to be tried only upon

charges presented in the indictment.

29 Ex parte Bain, 121 U.S. 1, 12 (1887). Ex parte Bain was overruled in United

States v. Miller, 471 U.S. 130 (1985), to the extent that it held that a narrowing of

an indictment is impermissible. Ex parte Bain was also overruled to the extent that

it held that it held that a defective indictment was not just substantive error, but

that it deprived a court of subject-matter jurisdiction over a case. United States v.

Cotton, 535 U.S. 625 (2002). While a defendant’s failure to challenge an error of

substantive law at trial level may result in waiver of such issue for purpose of appeal, challenges to subject-matter jurisdiction may be made at any time. Thus, where

a defendant failed to assert his right to a non-defective grand jury indictment, appellate review of the matter would limited to a “plain error” analysis. 535 U.S. at

631 (2002).

30 United States v. Miller, 471 U.S. 130, 144 (1985).

31 Breese v. United States, 226 U.S. 1 (1912).

32 Costello v. United States, 350 U.S. 359 (1956); Lawn v. United States, 355

U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966). Cf. Gelbard v. United

States, 408 U.S. 41 (1972).

33 Johnson v. Sayre, 158 U.S. 109, 114 (1895). See also Lee v. Madigan, 358 U.S.

228, 232–35, 241 (1959).

1470 AMENDMENT 5—RIGHTS OF PERSONS
the acts took place.34 In 1987, however, this decision was overruled, with the Court emphasizing the “plain language” of Article

I, § 8, clause 14,35 and not directly addressing any possible limitation stemming from the language of the Fifth Amendment.36 “[T]he

requirements of the Constitution are not violated where, as here, a

court-martial is convened to try a serviceman who was a member

of the armed services at the time of the offense charged.” 37 Even

under the service connection rule, it was held that offenses against

the laws of war, whether committed by citizens or by alien enemy

belligerents, could be tried by a military commission.38

DOUBLE JEOPARDY

Development and Scope

“The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards

of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at

least the Anglo-American system of jurisprudence, is that the State

with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as

well as enhancing the possibility that even though innocent he may

be found guilty.” 39 A second “vitally important interest[ ]” embod34 395 U.S. 258 (1969); see also Relford v. Commandant, 401 U.S. 355 (1971)

(offense committed on military base against persons lawfully on base was service

connected). But courts-martial of civilian dependents and discharged servicemen have

been barred. Id. See “Trial and Punishment of Offenses: Servicemen, Civilian Employees, and Dependents” under Article I.

35 This clause confers power on Congress to “make rules for the government and

regulation of the land and naval forces.”

36 Solorio v. United States, 483 U.S. 435 (1987). A 5–4 majority favored overruling O’Callahan: Chief Justice Rehnquist’s opinion for the Court was joined by Justices White, Powell, O’Connor, and Scalia. Justice Stevens concurred in the judgment but thought it unnecessary to reexamine O’Callahan. Dissenting Justice Marshall,

joined by Justices Brennan and Blackmun, thought the service connection rule justified by the language of the Fifth Amendment’s exception, based on the nature of

cases (those “arising in the land or naval forces”) rather than the status of defendants.

37 483 U.S. at 450–51.

38 Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).

39 Green v. United States, 355 U.S. 184, 187–88 (1957). The passage is often

quoted with approval by the Court. E.g., Crist v. Bretz, 437 U.S. 28, 35 (1978); United

States v. DiFrancesco, 449 U.S. 117, 127–28 (1980); Yeager v. United States, 557

U.S. ___, No. 08–67, slip op. at 7 (2009). For a comprehensive effort to assess the

purposes of application of the clause, see Westen & Drubel, Toward a General Theory

of Double Jeopardy, 1978 SUP. CT. REV. 81.

AMENDMENT 5—RIGHTS OF PERSONS 1471
ied in the Double Jeopardy Clause “is the preservation of ‘the finality of judgments.’ ” 40

The concept of double jeopardy goes far back in history, but its

development was uneven and its meaning has varied. The English

development, under the influence of Coke and Blackstone, came gradually to mean that a defendant at trial could plead former conviction or former acquittal as a special plea in bar to defeat the prosecution.41 In this country, the common-law rule was in some cases

limited to this rule and in other cases extended to bar a new trial

even though the former trial had not concluded in either an acquittal or a conviction. The rule’s elevation to fundamental status by

its inclusion in several state bills of rights following the Revolution

continued the differing approaches.42 Madison’s version of the guarantee as introduced in the House of Representatives read: “No person shall be subject, except in cases of impeachment, to more than

one punishment or trial for the same offense.” 43 Opposition in the

House proceeded on the proposition that the language could be construed to prohibit a second trial after a successful appeal by a defendant and would therefore either constitute a hazard to the public by freeing the guilty or, more likely, result in a detriment to

defendants because appellate courts would be loath to reverse convictions if no new trial could follow, but a motion to strike “or trial”

from the clause failed.44 As approved by the Senate, however, and

accepted by the House for referral to the states, the present language of the clause was inserted.45

Throughout most of its history, this clause was binding only against

the Federal Government. In Palko v. Connecticut,

46 the Court re40 Yeager v. United States, 557 U.S. ___, No. 08–67, slip op. at 6, 7 (2009), quoting Crist v. Bretz, 437 U.S. 28, 33 (1978).

41 M. FRIEDLAND, DOUBLE JEOPARDY part 1 (1969); Crist v. Bretz, 437 U.S. 28, 32–36

(1978), and id. at 40 (Justice Powell dissenting); United States v. Wilson, 420 U.S.

332, 340 (1975).

42 J. SIGLER, DOUBLE JEOPARDY: THE DEVELOPMENT OF A LEGAL AND SOCIAL POLICY 21–27

(1969). The first bill of rights that expressly adopted a double jeopardy clause was

the New Hampshire Constitution of 1784. “No subject shall be liable to be tried,

after an acquittal, for the same crime or offence.” Art. I, Sec. XCI, 4 F. Thorpe, The

Federal and State Constitution, reprinted in H.R. DOC. NO. 357, 59th Congress, 2d

Sess. 2455 (1909). A more comprehensive protection was included in the Pennsylvania Declaration of Rights of 1790, which had language almost identical to the present Fifth Amendment provision. Id. at 3100.

43 1 ANNALS OF CONGRESS 434 (June 8, 1789).

44 Id. at 753.

45 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1149, 1165 (1971).

In Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting), Justice Powell attributed to

inadvertence the broadening of the “rubric” of double jeopardy to incorporate the

common law rule against dismissal of the jury prior to verdict, a question the majority passed over as being “of academic interest only.” Id. at 34 n.10.

46 302 U.S. 319 (1937).

1472 AMENDMENT 5—RIGHTS OF PERSONS
jected an argument that the Fourteenth Amendment incorporated

all the provisions of the first eight Amendments as limitations on

the states and enunciated the due process theory under which most

of those Amendments do now apply to the states. Some guarantees

in the Bill of Rights, Justice Cardozo wrote, were so fundamental

that they are “of the very essence of the scheme of ordered liberty”

and “neither liberty nor justice would exist if they were sacrificed.” 47 But the Double Jeopardy Clause, like many other procedural rights of defendants, was not so fundamental; it could be absent and fair trials could still be had. Of course, a defendant’s due

process rights, absent double jeopardy consideration per se, might

be violated if the state “creat[ed] a hardship so acute and shocking

as to be unendurable,” but that was not the case in Palko.

48 In Benton

v. Maryland, however, the Court concluded “that the double jeopardy prohibition of the Fifth Amendment represents a fundamental

ideal in our constitutional heritage. . . . Once it is decided that a

particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ the same constitutional standards apply against

both the State and Federal Governments.” 49 Therefore, the double

jeopardy limitation now applies to both federal and state governments and state rules on double jeopardy, with regard to such matters as when jeopardy attaches, must be considered in the light of

federal standards.50

In a federal system, different units of government 51 may have

different interests to serve in the definition of crimes and the enforcement of their laws, and where the different units have overlapping jurisdictions a person may engage in conduct that will violate

the laws of more than one unit.52 Although the Court had long accepted in dictum the principle that prosecution by two governments of the same defendant for the same conduct would not constitute double jeopardy, it was not until United States v. Lanza 53

that the conviction in federal court of a person previously convicted

in a state court for performing the same acts was sustained. “We

47 302 U.S. at 325, 326.

48 302 U.S. at 328.

49 395 U.S. 784, 795, 795 (1969) (citation omitted).

50 Crist v. Bretz, 437 U.S. 28, 37–38 (1978). But see id. at 40 (Justices Powell

and Rehnquist and Chief Justice Burger dissenting) (standard governing states should

be more relaxed).

51 Id. See also cases cited in Bartkus v. Illinois, 359 U.S. 121, 132 n.19 (1959),

and Abbate v. United States, 359 U.S. 187, 192–93 (1959).

52 The problem was recognized as early as Houston v. Moore, 18 U.S. (5 Wheat.)

1 (1820), and the rationale of the doctrine was confirmed within thirty years. Fox v.

Ohio, 46 U.S. (5 How.) 410 (1847); United States v. Marigold, 50 U.S. (9 How.) 560

(1850); Moore v. Illinois, 55 U.S. (14 How.) 13 (1852).

53 260 U.S. 377 (1922).

AMENDMENT 5—RIGHTS OF PERSONS 1473
have here two sovereignties, deriving power from different sources,

capable of dealing with the same subject-matter within the same

territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.” 54 The “dual sovereignty” doctrine is

not only tied into the existence of two sets of laws often serving

different federal-state purposes and the now overruled principle that

the Double Jeopardy Clause restricts only the national government

and not the states,55 but it also reflects practical considerations that

undesirable consequences could follow an overruling of the doctrine. Thus, a state might preempt federal authority by first prosecuting and providing for a lenient sentence (as compared to the

possible federal sentence) or acquitting defendants who had the sympathy of state authorities as against federal law enforcement.56 The

application of the clause to the states has therefore worked no change

in the “dual sovereign” doctrine.57 The dual sovereignty doctrine has

also been applied to permit successive prosecutions by two states

for the same conduct,58 and to permit a federal prosecution after a

conviction in an Indian tribal court for an offense stemming from

the same conduct.59 Of course, when in fact two different units of

the government are subject to the same sovereign, the Double Jeop54 260 U.S. at 382. See also Hebert v. Louisiana, 272 U.S. 312 (1924); Screws v.

United States, 325 U.S. 91, 108 (1945); Jerome v. United States, 318 U.S. 101 (1943).

55 Benton v. Maryland, 395 U.S. 784 (1969), extended the clause to the states.

56 Reaffirmation of the doctrine against double jeopardy claims as to the Federal Government and against due process claims as to the states occurred in Abbate

v. United States, 359 U.S. 187 (1959), and Bartkus v. Illinois, 359 U.S. 121 (1959),

both cases containing extensive discussion and policy analyses. The Justice Department follows a policy of generally not duplicating a state prosecution brought and

carried out in good faith, see Petite v. United States, 361 U.S. 529, 531 (1960); Rinaldi

v. United States, 434 U.S. 22 (1977), and several provisions of federal law forbid a

federal prosecution following a state prosecution. E.g., 18 U.S.C. §§ 659, 660, 1992,

2117. The Brown Commission recommended a general statute to this effect, preserving discretion in federal authorities to proceed upon certification by the Attorney

General that a United States interest would be unduly harmed if there were no

federal prosecution. NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, FINAL

REPORT 707 (1971).

57 United States v. Wheeler, 435 U.S. 313 (1978) (dual sovereignty doctrine permits federal prosecution of an Indian for statutory rape following his plea of guilty

in a tribal court to contributing to the delinquency of a minor, both charges involving the same conduct; tribal law stemmed from the retained sovereignty of the tribe

and did not flow from the Federal Government).

58 Heath v. Alabama, 474 U.S. 82 (1985) (defendant who crossed state line in

the course of a kidnap and murder was prosecuted for murder in both states).

59 United States v. Lara, 541 U.S. 193 (2004) (federal prosecution for assaulting

a federal officer after tribal conviction for “violence to a policeman”). The Court concluded that Congress has power to recognize tribal sovereignty to prosecute nonmember Indians, that Congress had done so, and that consequently the tribal prosecution was an exercise of tribal sovereignty, not an exercise of delegated federal

power on which a finding of double jeopardy could be based.

1474 AMENDMENT 5—RIGHTS OF PERSONS
ardy Clause does bar separate prosecutions by them for the same

offense.60

The clause speaks of being put in “jeopardy of life or limb,” which

as derived from the common law, generally referred to the possibility of capital punishment upon conviction, but it is now settled that

the clause protects with regard “to every indictment or information

charging a party with a known and defined crime or misdemeanor,

whether at the common law or by statute.” 61 Despite the clause’s

literal language, it can apply as well to sanctions that are civil in

form if they clearly are applied in a manner that constitutes “punishment.” 62 Ordinarily, however, civil in rem forfeiture proceedings

may not be considered punitive for purposes of double jeopardy analysis.63 and the same is true of civil commitment following expiration

of a prison term.64

60 Grafton v. United States, 206 U.S. 333 (1907) (trial by military court-martial

precluded subsequent trial in territorial court); Waller v. Florida, 397 U.S. 387 (1970)

(trial by municipal court precluded trial for same offense by state court). It was assumed in an early case that refusal to answer questions before one House of Congress could be punished as a contempt by that body and by prosecution by the United

States under a misdemeanor statute, In re Chapman, 166 U.S. 661, 672 (1897), but

there had been no dual proceedings in that case and it seems highly unlikely that

the case would now be followed. Cf. Colombo v. New York, 405 U.S. 9 (1972).

61 Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 (1874). The clause generally has

no application in noncriminal proceedings. Helvering v. Mitchell, 303 U.S. 391 (1938).

62 The clause applies in juvenile court proceedings that are formally civil. Breed

v. Jones, 421 U.S. 519 (1975). See also United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); United States v. Halper, 490 U.S. 435 (1989) (civil penalty under the False Claims Act constitutes punishment if it is overwhelmingly disproportionate to compensating the government for its loss, and if it can be explained

only as serving retributive or deterrent purposes); Montana Dep’t of Revenue v. Kurth

Ranch, 511 U.S. 767 (1994) (tax on possession of illegal drugs, “to be collected only

after any state or federal fines or forfeitures have been satisfied,” constitutes punishment for purposes of double jeopardy). But see Seling v. Young, 531 U.S. 250 (2001)

(a statute that has been held to be civil and not criminal in nature cannot be deemed

punitive “as applied” to a single individual). The issue of whether a law is civil or

punitive in nature is essentially the same for ex post facto and for double jeopardy

analysis. 531 U.S. at 263.

63 United States v. Ursery, 518 U.S. 267 (1996) (forfeitures, pursuant to 19 U.S.C.

§ 981 and 21 U.S.C. § 881, of property used in drug and money laundering offenses,

are not punitive). The Court in Ursery applied principles that had been set forth in

Various Items of Personal Property v. United States, 282 U.S. 577 (1931) (forfeiture

of distillery used in defrauding government of tax on spirits), and United States v.

One Assortment of 89 Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant to 18 U.S.C.

§ 924(d), of firearms “used or intended to be used in” firearms offenses). A two-part

inquiry is followed. First, the Court inquires whether Congress intended the forfeiture proceeding to be civil or criminal. Then, if Congress intended that the proceeding be civil, the court determines whether there is nonetheless the “clearest proof”

that the sanction is “so punitive” as to transform it into a criminal penalty. 89 Firearms, 465 U.S. at 366.

64 Kansas v. Hendricks, 521 U.S. 346, 369–70 (1997) (commitment under state’s

Sexually Violent Predator Act).

AMENDMENT 5—RIGHTS OF PERSONS 1475
Because a prime purpose of the clause is to protect against the

burden of multiple trials, a defendant who raises and loses a double

jeopardy claim during pretrial or trial may immediately appeal the

ruling; this is a rare exception to the general rule prohibiting appeals from nonfinal orders.65

During the 1970s, the Court decided an uncommonly large number of cases raising double jeopardy claims.66 Instead of the clarity

that often emerges from intense consideration of a particular issue,

however, double jeopardy doctrine has descended into a state of “confusion,” with the Court acknowledging that its decisions “can hardly

be characterized as models of consistency and clarity.” 67 In large

part, the re-evaluation of doctrine and principle has not resulted in

the development of clear and consistent guidelines because of the

differing emphases of the Justices upon the purposes of the clause

and the consequent shifting coalition of majorities based on highly

technical distinctions and individualistic fact patterns. Thus, some

Justices have expressed the belief that the purpose of the clause is

only to protect final judgments relating to culpability, either of acquittal or conviction, and that English common law rules designed

to protect the defendant’s right to go to the first jury picked had

early in our jurisprudence become confused with the Double Jeopardy Clause. Although they accept the present understanding, they

do so as part of the Court’s superintending of the federal courts and

not because the understanding is part and parcel of the clause; in

so doing, of course, they are likely to find more prosecutorial discretion in the trial process.68 Others have expressed the view that the

clause not only protects the integrity of final judgments but, more

important, that it protects the accused against the strain and burden of multiple trials, which would also enhance the ability of government to convict.69 Still other Justices have engaged in a form of

balancing of defendants’ rights with society’s rights to determine when

65 Abney v. United States, 431 U.S. 651 (1977).

66 See United States v. DiFrancesco, 449 U.S. 117, 126–27 (1980) (citing cases).

67 Burks v. United States, 437 U.S. 1, 9, 15 (1978). One result is instability in

the law. Thus, Burks overruled, to the extent inconsistent, four cases decided between 1950 and 1960, and United States v. Scott, 437 U.S. 82 (1978), overruled a

case decided just three years earlier, United States v. Jenkins, 420 U.S. 358 (1975).

68 See Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting opinion). Justice Powell,

joined by Chief Justice Burger and Justice Rehnquist, argued that, with the Double

Jeopardy Clause so interpreted, the Due Process Clause could be relied on to prevent prosecutorial abuse during the trial designed to abort the trial and obtain a

second one. Id. at 50. All three have joined, indeed, in some instances, have authored, opinions adverting to the role of the double jeopardy clause in protecting

against such prosecutorial abuse. E.g., United States v. Scott, 437 U.S. 82, 92–94

(1978); Oregon v. Kennedy, 456 U.S. 667 (1982) (but narrowing scope of concept).

69 United States v. Scott, 437 U.S. 82, 101 (1978) (dissenting opinion) (Justices

Brennan, White, Marshall, and Stevens).

1476 AMENDMENT 5—RIGHTS OF PERSONS
reprosecution should be permitted when a trial ends prior to a final judgment not hinged on the defendant’s culpability.70 Thus, the

basic area of disagreement, though far from the only one, centers

on the trial from the attachment of jeopardy to the final judgment.

Reprosecution Following Mistrial

The common law generally required that the previous trial must

have ended in a judgment, of conviction or acquittal, but the constitutional rule is that jeopardy attaches much earlier, in jury trials

when the jury is sworn, and in trials before a judge without a jury,

when the first evidence is presented.71 Therefore, if after jeopardy

attaches the trial is terminated for some reason, it may be that a

second trial, even if the termination was erroneous, is barred.72 The

reasons the Court has given for fixing the attachment of jeopardy

at a point prior to judgment and thus making some terminations of

trials before judgment final insofar as the defendant is concerned

is that a defendant has a “valued right to have his trial completed

by a particular tribunal.” 73 The reason that the defendant’s right

is so “valued” is that he has a legitimate interest in completing the

70 Thus, Justice Blackmun has enunciated positions recognizing a broad right

of defendants much like the position of the latter three Justices, Crist v. Bretz, 437

U.S. 28, 38 (1978) (concurring), and he joined Justice Stevens’ concurrence in Oregon v. Kennedy, 456 U.S. 667, 681 (1982), but he also joined the opinions in United

States v. Scott, 437 U.S. 82 (1978), and Arizona v. Washington, 434 U.S. 497 (1978)

(Justice Blackmun concurring only in the result).

71 The rule traces back to United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824).

See also Kepner v. United States, 195 U.S. 100 (1904); Downum v. United States,

372 U.S. 734 (1963) (trial terminated just after jury sworn but before any testimony

taken). In Crist v. Bretz, 437 U.S. 28 (1978), the Court held this standard of the

attachment of jeopardy was “at the core” of the clause and it therefore binds the

States. But see id. at 40 (Justice Powell dissenting). An accused is not put in jeopardy by preliminary examination and discharge by the examining magistrate, Collins v. Loisel, 262 U.S. 426 (1923), by an indictment which is quashed, Taylor v.

United States, 207 U.S. 120, 127 (1907), or by arraignment and pleading to the indictment. Bassing v. Cady, 208 U.S. 386, 391–92 (1908). A defendant may be tried

after preliminary proceedings that present no risk of final conviction. E.g., Ludwig

v. Massachusetts, 427 U.S. 618, 630–32 (1976) (conviction in prior summary proceeding does not foreclose trial in a court of general jurisdiction, where defendant has

absolute right to demand a trial de novo and thus set aside the first conviction);

Swisher v. Brady, 438 U.S. 204 (1978) (double jeopardy not violated by procedure

under which masters hear evidence and make preliminary recommendations to juvenile court judge, who may confirm, modify, or remand).

72 Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v. United States, 372

U.S. 734 (1963). “Even if the first trial is not completed, a second prosecution may

be grossly unfair. It increases the financial and emotional burden on the accused,

prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is

aborted before it is completed. Consequently, as a general rule, the prosecutor is

entitled to one, and only one, opportunity to require an accused to stand trial.” Arizona v. Washington, 434 U.S. 497, 503–05 (1978).

73 Wade v. Hunter, 336 U.S. 684, 689 (1949).

AMENDMENT 5—RIGHTS OF PERSONS 1477
trial “once and for all” and “conclud[ing] his confrontation with society,” 74 so as to be spared the expense and ordeal of repeated trials, the anxiety and insecurity of having to live with the possibility

of conviction, and the possibility that the prosecution may strengthen

its case with each try as it learns more of the evidence and of the

nature of the defense.75 These reasons both inform the determination when jeopardy attaches and the evaluation of the permissibility of retrial depending upon the reason for a trial’s premature termination.

A second trial may be permitted where a mistrial is the result

of “manifest necessity,” 76 as when, for example, the jury cannot reach

a verdict 77 or circumstances plainly prevent the continuation of the

trial.78 The question of whether there is double jeopardy becomes

more difficult, however, when the doctrine of “manifest necessity”

is called upon to justify a second trial following a mistrial granted

by the trial judge because of some event within the prosecutor’s control or because of prosecutorial misconduct or because of error or

abuse of discretion by the judge himself. There must ordinarily be

a balancing of the defendant’s right in having the trial completed

against the public interest in fair trials designed to end in just judgments.79 Thus, when, after jeopardy attached, a mistrial was granted

because of a defective indictment, the Court held that retrial was

not barred; a trial judge “properly exercises his discretion” in cases

in which an impartial verdict cannot be reached or in which a verdict on conviction would have to be reversed on appeal because of

an obvious error. “If an error could make reversal on appeal a certainty, it would not serve ‘the ends of public justice’ to require that

the government proceed with its proof when, if it succeeded before

the jury, it would automatically be stripped of that success by an

74 United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion).

75 Arizona v. Washington, 434 U.S. 497, 503–05 (1978); Crist v. Bretz, 437 U.S.

28, 35–36 (1978). See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81, 86–97.

76 United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).

77 United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824); Logan v. United States,

144 U.S. 263 (1892). See Renico v. Lett, 559 U.S. ___, No. 09–338, slip op. (2010) (in

a habeas review case, discussing the broad deference given to trial judge’s decision

to declare a mistrial because of jury deadlock). See also, Yeager v. United States,

557 U.S. ___, No. 08–67, slip op. at 7 (2009); Blueford v. Arkansas, 566 U.S. ___, No.

10–1320, slip op. (2012) (reprosecution for a greater offense allowed following jury

deadlock on a lesser included offense).

78 Simmons v. United States, 142 U.S. 148 (1891) (juror’s impartiality became

questionable during trial); Thompson v. United States, 155 U.S. 271 (1884) (discovery during trial that one of the jurors had served on the grand jury that had indicted defendant and was therefore disqualified); Wade v. Hunter, 336 U.S. 684 (1949)

(court-martial discharged because enemy advancing on site).

79 Illinois v. Somerville, 410 U.S. 458, 463 (1973).

1478 AMENDMENT 5—RIGHTS OF PERSONS
appellate court.” 80 On the other hand, when, after jeopardy attached, a prosecutor successfully moved for a mistrial because a key

witness had inadvertently not been served and could not be found,

the Court held a retrial barred, because the prosecutor knew prior

to the selection and swearing of the jury that the witness was unavailable.81 Although this case appeared to establish the principle

that an error of the prosecutor or of the judge leading to a mistrial

could not constitute a “manifest necessity” for terminating the trial,

Somerville distinguished and limited Downum to situations in which

the error lends itself to prosecutorial manipulation, in being the sort

of instance that the prosecutor could use to abort a trial that was

not proceeding successfully and obtain a new trial that would be to

his advantage.82

Another kind of case arises when the prosecutor moves for mistrial because of prejudicial misconduct by the defense. In Arizona

v. Washington,

83 defense counsel in his opening statement made prejudicial comments about the prosecutor’s past conduct, and the prosecutor’s motion for a mistrial was granted over defendant’s objections. The Court ruled that retrial was not barred by double jeopardy.

Granting that in a strict, literal sense, mistrial was not “necessary” because the trial judge could have given limiting instructions

to the jury, the Court held that the highest degree of respect should

be given to the trial judge’s evaluation of the likelihood of the impairment of the impartiality of one or more jurors. As long as support for a mistrial order can be found in the trial record, no specific

statement of “manifest necessity” need be made by the trial judge.84

Emphasis upon the trial judge’s discretion has an impact upon

the cases in which it is the judge’s error, in granting sua sponte a

mistrial or granting the prosecutor’s motion. The cases are in doctrinal disarray. Thus, in Gori v. United States,

85 the Court permit80 410 U.S. at 464.

81 Downum v. United States, 372 U.S. 734 (1963).

82 Illinois v. Somerville, 410 U.S. 458, 464–65, 468–69 (1973).

83 434 U.S. 497 (1978).

84 “Manifest necessity” characterizes the burden the prosecutor must shoulder

in justifying retrial. 434 U.S. at 505–06. But “necessity” cannot be interpreted literally; it means rather a “high degree” of necessity, and some instances, such as hung

juries, easily meet that standard. Id. at 506–07. In a situation like that presented

in this case, great deference must be paid to the trial judge’s decision because he

was in the best position to determine the extent of the possible bias, having observed the jury’s response, and to respond by the course he deems best suited to

deal with it. Id. at 510–14. Here, “the trial judge acted responsibly and deliberately,

and accorded careful consideration to respondent’s interest in having the trial concluded in a single proceeding. . . . [H]e exercised ‘sound discretion.’ . . . ” Id. at 516.

85 367 U.S. 364 (1961). See also United States v. Tateo, 377 U.S. 463 (1964)

(reprosecution permitted after the setting aside of a guilty plea found to be involuntary because of coercion by the trial judge).

AMENDMENT 5—RIGHTS OF PERSONS 1479
ted retrial of the defendant when the trial judge had, on his own

motion and with no indication of the wishes of defense counsel, declared a mistrial because he thought the prosecutor’s line of questioning was intended to expose the defendant’s criminal record, which

would have constituted prejudicial error. Although the Court thought

that the judge’s action was an abuse of discretion, it approved retrial on the grounds that the judge’s decision had been taken for

defendant’s benefit. This rationale was disapproved in the next case,

in which the trial judge discharged the jury erroneously and in abuse

of his discretion, because he disbelieved the prosecutor’s assurance

that certain witnesses had been properly apprised of their constitutional rights.86 Refusing to permit retrial, the Court observed that

the “doctrine of manifest necessity stands as a command to trial

judges not to foreclose the defendant’s option [to go to the first jury

and perhaps obtain an acquittal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” 87

The later cases appear to accept Jorn as an example of a case where

the trial judge “acts irrationally or irresponsibly.” But if the trial

judge acts deliberately, giving prosecution and defense the opportunity to explain their positions, and according respect to defendant’s

interest in concluding the matter before the one jury, then he is

entitled to deference. This approach perhaps rehabilitates the result if not the reasoning in Gori and maintains the result and much

of the reasoning of Jorn.

88

Of course, “a motion by the defendant for mistrial is ordinarily

assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by a prosecutorial or judicial error.” 89

“Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” 90 In United States

v. Dinitz,

91 the trial judge had excluded defendant’s principal attorney for misbehavior and had then given defendant the option of re86 United States v. Jorn, 400 U.S. 470, 483 (1971).

87 400 U.S. at 485. The opinion of the Court was by a plurality of four, but two

other Justices joined it after first arguing that jurisdiction was lacking to hear the

government’s appeal.

88 Arizona v. Washington, 434 U.S. 497, 514, 515–16 (1978). See also Illinois v.

Somerville, 410 U.S. 458, 462, 465–66, 469–71 (1973) (discussing Gori and Jorn.)

89 United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion).

90 United States v. Scott, 437 U.S. 82, 93 (1978).

91 424 U.S. 600 (1976). See also Lee v. United States, 432 U.S. 23 (1977) (defendant’s motion to dismiss because the information was improperly drawn made after

opening statement and renewed at close of evidence was functional equivalent of

mistrial and when granted did not bar retrial, Court emphasizing that defendant by

his timing brought about foreclosure of opportunity to stay before the same trial).

1480 AMENDMENT 5—RIGHTS OF PERSONS
cess while he appealed the exclusion, a mistrial, or continuation with

an assistant defense counsel. Holding that the defendant could be

retried after he chose a mistrial, the Court reasoned that, although

the exclusion might have been in error, it was not done in bad faith

to goad the defendant into requesting a mistrial or to prejudice his

prospects for acquittal. The defendant’s choice, even though difficult, to terminate the trial and go on to a new trial should be respected and a new trial not barred. To hold otherwise would necessitate requiring the defendant to shoulder the burden and anxiety

of proceeding to a probable conviction followed by an appeal, which

if successful would lead to a new trial, and neither the public interest nor the defendant’s interests would thereby be served.

But the Court has also reserved the possibility that the defendant’s motion might be necessitated by prosecutorial or judicial overreaching motivated by bad faith or undertaken to harass or prejudice, and in those cases retrial would be barred. It was unclear what

prosecutorial or judicial misconduct would constitute such overreaching,92 but, in Oregon v. Kennedy,

93 the Court adopted a narrow “intent” test, so that “[o]nly 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.” Therefore, ordinarily, a defendant who moves for or acquiesces in a mistrial is bound by his decision and may be required to stand for retrial.

Reprosecution Following Acquittal

That a defendant may not be retried following an acquittal is

“the most fundamental rule in the history of double jeopardy jurisprudence.” 94 “[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken

the acquittal may have been, would present an unacceptably high

risk that the Government, with its vastly superior resources, might

wear down the defendant so that ‘even though innocent he may be

92 Compare United States v. Dinitz, 424 U.S. 600, 611 (1976), with United States

v. Tateo, 377 U.S. 463, 468 n.3 (1964).

93 456 U.S. 667, 676 (1982). The Court thought a broader standard requiring an

evaluation of whether acts of the prosecutor or the judge prejudiced the defendant

would be unmanageable and would be counterproductive because courts would be

loath to grant motions for mistrials knowing that reprosecution would be barred. Id.

at 676–77. The defendant had moved for mistrial after the prosecutor had asked a

key witness a prejudicial question. Four Justices concurred, noting that the question did not constitute overreaching or harassment and objecting both to the Court’s

reaching the broader issue and to its narrowing the exception. Id. at 681.

94 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).

AMENDMENT 5—RIGHTS OF PERSONS 1481
found guilty.’ ” 95 Although, in other areas of double jeopardy doctrine, consideration is given to the public-safety interest in having

a criminal trial proceed to an error-free conclusion, no such balancing of interests is permitted with respect to acquittals, “no matter

how erroneous,” no matter even if they were “egregiously erroneous.” 96 Thus, an acquittal resting on the trial judge’s misreading of

the elements of an offense precludes further prosecution.97

The acquittal being final, there is no governmental appeal constitutionally possible from such a judgment. This was firmly established in Kepner v. United States,

98 which arose under a Philippines appeals system in which the appellate court could make an

independent review of the record, set aside the trial judge’s decision, and enter a judgment of conviction.99 Previously, under the

Due Process Clause, there was no barrier to state provision for

prosecutorial appeals from acquittals.100 But there are instances in

which the trial judge will dismiss the indictment or information without intending to acquit or in circumstances in which retrial would

not be barred, and the prosecution, of course, has an interest in

seeking on appeal to have errors corrected. Until 1971, however,

the law providing for federal appeals was extremely difficult to apply and insulated from review many purportedly erroneous legal rul95 United States v. Scott, 437 U.S. 82, 91 (1978) (quoting Green v. United States,

355 U.S. 184, 188 (1957)). For the conceptually related problem of trial for a “separate” offense arising out of the same “transaction,” see discussion under “The ‘Same

Transaction’ Problem,” infra.

96 Burks v. United States, 437 U.S. 1, 16 (1978); Fong Foo v. United States, 369

U.S. 141, 143 (1962). For evaluation of those interests of the defendant that might

support the absolute rule of finality, and rejection of all such interests save the right

of the jury to acquit against the evidence and the trial judge’s ability to temper legislative rules with leniency, see Westen & Drubel, Toward a General Theory of Double

Jeopardy, 1978 SUP. CT. REV. 81, 122–37.

97 Evans v. Michigan, 568 U.S. ___, No. 11–1327, slip op. (2013) (acquittal after

judge ruled the prosecution failed to prove that a burned building was not a dwelling, but such proof was not legally required for the arson offense charged).

98 195 U.S. 100 (1904). The case interpreted not the constitutional provision but

a statutory provision extending double jeopardy protection to the Philippines. The

Court has described the case, however, as correctly stating constitutional principles.

See, e.g., United States v. Wilson, 420 U.S. 332, 346 n.15 (1975); United States v.

DiFrancesco, 449 U.S. 117, 113 n.13 (1980).

99 In dissent, Justice Holmes, joined by three other Justices, propounded a theory

of “continuing jeopardy,” so that until the case was finally concluded one way or

another, through judgment of conviction or acquittal, and final appeal, there was no

second jeopardy no matter how many times a defendant was tried. 195 U.S. at 134.

The Court has numerous times rejected any concept of “continuing jeopardy.” E.g.,

Green v. United States, 355 U.S. 184, 192 (1957); United States v. Wilson, 420 U.S.

332, 351–53 (1975); Breed v. Jones, 421 U.S. 519, 533–35 (1975).

100 Palko v. Connecticut, 302 U.S. 319 (1937). Palko is no longer viable. Cf. Greene

v. Massey, 437 U.S. 19 (1978).

1482 AMENDMENT 5—RIGHTS OF PERSONS
ings,101 but in that year Congress enacted a new statute permitting appeals in all criminal cases in which indictments are dismissed,

except in those cases in which the Double Jeopardy Clause prohibits further prosecution.102 In part because of the new law, the Court

has dealt in recent years with a large number of problems in this

area.

Acquittal by Jury.—Little or no controversy accompanies the

rule that once a jury has acquitted a defendant, government may

not, through appeal of the verdict or institution of a new prosecution, place the defendant on trial again.103 Thus, the Court early

held that, when the results of a trial are set aside because the first

indictment was invalid or for some reason the trial’s results were

voidable, a judgment of acquittal must nevertheless remain undisturbed.104

101 The Criminal Appeals Act of 1907, 34 Stat. 1246, was “a failure . . . , a most

unruly child that has not improved with age.” United States v. Sisson, 399 U.S. 267,

307 (1970). See also United States v. Oppenheimer, 242 U.S. 85 (1916); Fong Foo v.

United States, 369 U.S. 141 (1962).

102 Title III of the Omnibus Crime Control Act, Pub. L. 91–644, 84 Stat. 1890,

18 U.S.C. § 3731. Congress intended to remove all statutory barriers to governmental appeal and to allow appeals whenever the Constitution would permit, so that

interpretation of the statute requires constitutional interpretation as well. United

States v. Wilson, 420 U.S. 332, 337 (1974). See Sanabria v. United States, 437 U.S.

54, 69 n.23 (1978), and id. at 78 (Justice Stevens concurring).

103 What constitutes a jury acquittal may occasionally be uncertain. In Blueford

v. Arkansas, 566 U.S. ___, No. 10–1320, slip op. (2012), the defendant was charged

with capital murder in an “acquittal-first” jurisdiction, in which the jury must unanimously agree that a defendant is not guilty of a greater offense before it may begin

to consider a lesser included offense. After several hours of deliberations, the foreperson

of the jury stated in open court that the jury was unanimously against conviction

for capital murder and the lesser included offense of first degree murder, but was

deadlocked on manslaughter, the next lesser included offense. After further deliberations, the judge declared a mistrial because of a hung jury. Six Justices of the Court

subsequently held that the foreperson’s statement on capital murder and first degree murder lacked the necessary finality of an acquittal, and found that Double

Jeopardy did not bar a subsequent prosecution for those crimes. Three dissenting

Justices held that Double Jeopardy required a partial verdict of acquittal on the

greater offenses under the circumstances.

In Schiro v. Farley, 510 U.S. 222 (1994), the Court ruled that a jury’s action in

leaving the verdict sheet blank on all but one count did not amount to an acquittal

on those counts, and that consequently conviction on the remaining count, alleged

to be duplicative of one of the blank counts, could not constitute double jeopardy. In

any event, the Court added, no successive prosecution violative of double jeopardy

could result from an initial sentencing proceeding in the course of an initial prosecution.

104 In United States v. Ball, 163 U.S. 662 (1896), three defendants were placed

on trial, Ball was acquitted and the other two were convicted, the two appealed and

obtained a reversal on the ground that the indictment had been defective, and all

three were again tried and all three were convicted. Ball’s conviction was set aside

as violating the clause; the trial court’s action was not void but only voidable, and

Ball had taken no steps to void it while the government could not take such action.

Similarly, in Benton v. Maryland, 395 U.S. 784 (1969), the defendant was convicted

AMENDMENT 5—RIGHTS OF PERSONS 1483
Acquittal by the Trial Judge.—When a trial judge acquits a

defendant, that action concludes the matter to the same extent that

acquittal by jury verdict does.105 There is no possibility of retrial

for the same offense.106 But it may be difficult at times to determine whether the trial judge’s action was in fact an acquittal or

whether it was a dismissal or some other action, which the prosecution may be able to appeal or the judge may be able to reconsider.107 The question is “whether the ruling of the judge, whatever

its label, actually represents a resolution, correct or not, of some or

all of the factual elements of the offense charged.” 108 Thus, an appeal by the government was held barred in a case in which the deadlocked jury had been discharged, and the trial judge had granted

the defendant’s motion for a judgment of acquittal under the appropriate federal rule, explicitly based on the judgment that the government had not proved facts constituting the offense.109 Even if,

as happened in Sanabria v. United States,

110 the trial judge erroneously excludes evidence and then acquits on the basis that the remaining evidence is insufficient to convict, the judgment of acquittal produced thereby is final and unreviewable.111

Some limited exceptions exist with respect to the finality of trial

judge acquittal. First, because a primary purpose of the Due Process Clause is the prevention of successive trials and not of prosecution appeals per se, it is apparently the case that, if the trial judge

permits the case to go to the jury, which convicts, and the judge

thereafter enters a judgment of acquittal, even one founded upon

of burglary but acquitted of larceny; the conviction was set aside on his appeal because the jury had been unconstitutionally chosen. He was again tried and convicted of both burglary and larceny, but the larceny conviction was held to violate

the Double Jeopardy Clause. On the doctrine of “constructive acquittals” by conviction of a lesser included offense, see discussion infra under “Reprosecution After Reversal on Defendant’s Appeal.”

105 United States v. Martin Linen Supply Co., 430 U.S. 564, 570–72 (1977); Sanabria

v. United States, 437 U.S. 54, 63–65 (1978); Finch v. United States, 433 U.S. 676

(1977).

106 In Fong Foo v. United States, 369 U.S. 141 (1962), the Court acknowledged

that the trial judge’s action in acquitting was “based upon an egregiously erroneous

foundation,” but it was nonetheless final and could not be reviewed. Id. at 143.

107 As a general rule a state may prescribe that a judge’s midtrial determination of the sufficiency of the prosecution’s proof may be reconsidered. Smith v. Massachusetts, 543 U.S. 462 (2005) (Massachusetts had not done so, however, so the

judge’s midtrial acquittal on one of three counts became final for double jeopardy

purposes when the prosecution rested its case).

108 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).

109 430 U.S. at 570–76. See also United States v. Scott, 437 U.S. 82, 87–92 (1978);

Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer sustained on basis of insufficiency of evidence is acquittal).

110 437 U.S. 54 (1978).

111 See also Smith v. Massachusetts, 543 U.S. 462 (2005) (acquittal based on erroneous interpretation of precedent).

1484 AMENDMENT 5—RIGHTS OF PERSONS
his belief that the evidence does not establish guilt, the prosecution may appeal, because the effect of a reversal would be not a

new trial but reinstatement of the jury’s verdict and the judgment

thereon.112 Second, if the trial judge enters or grants a motion of

acquittal, even one based on the conclusion that the evidence is insufficient to convict, then the prosecution may appeal if jeopardy

had not yet attached in accordance with the federal standard.113

Trial Court Rulings Terminating Trial Before Verdict.—

If, after jeopardy attaches, a trial judge grants a motion for mistrial, ordinarily the defendant is subject to retrial; 114 if, after jeopardy attaches, but before a jury conviction occurs, the trial judge

acquits, perhaps on the basis that the prosecution has presented

insufficient evidence or that the defendant has proved a requisite

defense such as insanity or entrapment, the defendant is not subject to retrial.115 This is so even where the trial court’s ruling on

the sufficiency of the evidence is based on an erroneous interpretation of the statute defining the elements of the offense.116 However,

it may be that the trial judge will grant a motion to dismiss that is

neither a mistrial nor an acquittal, but is instead a termination of

the trial in defendant’s favor based on some decision not relating

to his factual guilt or innocence, such as prejudicial preindictment

delay.117 The prosecution may not simply begin a new trial but must

seek first to appeal and overturn the dismissal, a course that was

not open to federal prosecutors until enactment of the Omnibus Crime

112 In United States v. Wilson, 420 U.S. 332 (1975), following a jury verdict to

convict, the trial judge granted defendant’s motion to dismiss on the ground of prejudicial delay, not a judgment of acquittal; the Court permitted a government appeal

because reversal would have resulted in reinstatement of the jury’s verdict, not in a

retrial. In United States v. Jenkins, 420 U.S. 358, 365 (1975), the Court assumed,

on the basis of Wilson, that a trial judge’s acquittal of a defendant following a jury

conviction could be appealed by the government because, again, if the judge’s decision were set aside there would be no further proceedings at trial. In overruling

Jenkins in United States v. Scott, 437 U.S. 82 (1978), the Court noted the assumption and itself assumed that a judgment of acquittal bars appeal only when a second trial would be necessitated by reversal. Id. at 91 n.7.

113 Serfass v. United States, 420 U.S. 377 (1975) (after request for jury trial but

before attachment of jeopardy judge dismissed indictment because of evidentiary insufficiency; appeal allowed); United States v. Sanford, 429 U.S. 14 (1976) (judge granted

mistrial after jury deadlock, then four months later dismissed indictment for insufficient evidence; appeal allowed, because granting mistrial had returned case to pretrial status).

114 See “Reprosecution After Reversal on Defendant’s Appeal,” supra.

115 See “Acquittal by the Trial Judge,” supra.

116 See Evans v. Michigan, 568 U.S. ___, No. 11–1327, slip op. (2013).

117 United States v. Wilson, 420 U.S. 332 (1975) (preindictment delay); United

States v. Jenkins, 420 U.S. 358 (1975) (determination of law based on facts adduced

at trial; ambiguous whether judge’s action was acquittal or dismissal); United States

v. Scott, 437 U.S. 82 (1978) (preindictment delay).

AMENDMENT 5—RIGHTS OF PERSONS 1485
Control Act in 1971.118 That law has resulted in tentative and uncertain rulings with respect to when such dismissals may be appealed and further proceedings directed. In the first place, it is unclear in many instances whether a judge’s ruling is a mistrial, a

dismissal, or an acquittal.119 In the second place, because the Justices have such differing views about the policies underlying the Double

Jeopardy Clause, determinations of which dismissals preclude appeals and further proceedings may result from shifting coalitions

and from revised perspectives. Thus, the Court first fixed the line

between permissible and impermissible appeals at the point at which

further proceedings would have had to take place in the trial court

if the dismissal were reversed. If the only thing that had to be done

was to enter a judgment on a guilty verdict after reversal, appeal

was constitutional and permitted under the statute; 120 if further

proceedings, such as continuation of the trial or some further factfinding, was necessary, appeal was not permitted.121 Now, but by a close

division of the Court, the determining factor is not whether further

proceedings must be had but whether the action of the trial judge,

whatever its label, correct or not, resolved some or all of the factual elements of the offense charged in defendant’s favor, whether,

that is, the court made some determination related to the defendant’s factual guilt or innocence.122 Such dismissals relating to guilt

118 See United States v. Scott, 437 U.S. 82, 84–86 (1978); United States v. Sisson, 399 U.S. 267, 291–96 (1970).

119 Cf. Lee v. United States, 432 U.S. 23 (1977).

120 United States v. Wilson, 420 U.S. 332 (1975) (after jury guilty verdict, trial

judge dismissed indictment on grounds of preindictment delay; appeal permissible

because upon reversal all trial judge had to do was enter judgment on the jury’s

verdict).

121 United States v. Jenkins, 420 U.S. 358 (1975) (after presentation of evidence

in bench trial, judge dismissed indictment; appeal impermissible because if dismissal was reversed there would have to be further proceedings in the trial court

devoted to resolving factual issues going to elements of offense charged and resulting in supplemental findings).

122 United States v. Scott, 437 U.S. 82 (1978) (at close of evidence, court dismissed indictment for preindictment delay; ruling did not go to determination of guilt

or innocence, but, like a mistrial, permitted further proceedings that would go to

factual resolution of guilt or innocence). The Court thought that double jeopardy policies were resolvable by balancing the defendant’s interest in having the trial concluded in one proceeding against the government’s right to one complete opportunity to convict those who have violated the law. The defendant chose to move to

terminate the proceedings and, having made a voluntary choice, is bound to the consequences, including the obligation to continue in further proceedings. Id. at 95–

101. The four dissenters would have followed Jenkins, and accused the Court of having adopted too restrictive a definition of acquittal. Their view is that the rule against

retrials after acquittal does not, as the Court believed, “safeguard determination of

innocence; rather, it is that a retrial following a final judgment for the accused necessarily threatens intolerable interference with the constitutional policy against multiple trials.” Id. at 101, 104 (Justices Brennan, White, Marshall, and Stevens). They

1486 AMENDMENT 5—RIGHTS OF PERSONS
or innocence are functional equivalents of acquittals, whereas all

other dismissals are functional equivalents of mistrials.

Reprosecution Following Conviction

A basic purpose of the Double Jeopardy Clause is to protect a

defendant “against a second prosecution for the same offense after

conviction.” 123 It is “settled” that “no man can be twice lawfully punished for the same offense.” 124 Of course, the defendant’s interest

in finality, which informs much of double jeopardy jurisprudence, is

quite attenuated following conviction, and he will most likely appeal, whereas the prosecution will ordinarily be content with its judgment.125 The situation involving reprosecution ordinarily arises, therefore, only in the context of successful defense appeals and controversies

over punishment.

Reprosecution After Reversal on Defendant’s Appeal.—

Generally, a defendant who is successful in having his conviction

set aside on appeal may be tried again for the same offense, the

assumption being made in the first case on the subject that, by appealing, a defendant has “waived” his objection to further prosecution by challenging the original conviction.126 Although it has characterized the “waiver” theory as “totally unsound and indefensible,” 127

the Court has been hesitant in formulating a new theory in maintaining the practice.128

would, therefore, treat dismissals as functional equivalents of acquittals, whenever

further proceedings would be required after reversals.

123 North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

124 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873).

125 A prosecutor dissatisfied with the punishment imposed upon the first conviction might seek another trial in order to obtain a greater sentence. Cf. Ciucci v.

Illinois, 356 U.S. 571 (1958) (under Due Process Clause, Double Jeopardy Clause

not then applying to states).

126 United States v. Ball, 163 U.S. 662 (1896). The English rule precluded a new

trial in these circumstances, and circuit Justice Story adopted that view. United States

v. Gilbert, 25 Fed. Cas. 1287 (No. 15,204) (C.C.D.Mass. 1834). The history is briefly

surveyed in Justice Frankfurter’s dissent in Green v. United States, 355 U.S. 184,

200–05 (1957).

127 Green v. United States, 355 U.S. 184, 197 (1957). The more recent cases continue to reject a “waiver” theory. E.g., United States v. Dinitz, 424 U.S. 600, 609

n.11 (1976); United States v. Scott, 437 U.S. 82, 99 (1978).

128 Justice Holmes, dissenting in Kepner v. United States, 195 U.S. 100, 134

(1904), rejected the “waiver” theory and propounded a theory of “continuing jeopardy,” which also continues to be rejected. See discussion, supra. In some cases, a

concept of “election” by the defendant has been suggested, United States v. Scott,

437 U.S. 82, 93 (1978); Jeffers v. United States, 432 U.S. 137, 152–54 (1977), but it

is not clear how this formulation might differ from “waiver.” Chief Justice Burger

has suggested that “probably a more satisfactory explanation” for permissibility of

retrial in this situation “lies in analysis of the respective interests involved,” Breed

v. Jones, 421 U.S. 519, 533–35 (1975), and a determination that on balance the interests of both prosecution and defense are well served by the rule. See United States

v. Tateo, 377 U.S. 463, 466 (1964); Tibbs v. Florida, 457 U.S. 31, 39–40 (1982).

AMENDMENT 5—RIGHTS OF PERSONS 1487
An exception to full application of the retrial rule exists, however, when defendant on trial for an offense is convicted of a lesser

offense and succeeds in having that conviction set aside. Thus, in

Green v. United States,

129 the defendant had been placed on trial

for first degree murder but convicted of second degree murder; the

Court held that, following reversal of that conviction, he could not

be tried again for first degree murder, although he certainly could

be for second degree murder, on the theory that the first verdict

was an implicit acquittal of the first degree murder charge.130 Even

though the Court thought the jury’s action in the first trial was clearly

erroneous, the Double Jeopardy Clause required that the jury’s implicit acquittal be respected.131

Still another exception arises out of appellate reversals grounded

on evidentiary insufficiency. Thus, in Burks v. United States,

132 the

appellate court set aside the defendant’s conviction on the basis that

the prosecution had failed to rebut defendant’s proof of insanity. In

directing that the defendant could not be retried, the Court observed that if the trial court “had so held in the first instance, as

the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course, petitioner could not be

retried for the same offense. . . . [I]t should make no difference that

the reviewing court, rather than the trial court, determined the evidence to be insufficient.” 133 The policy underlying the clause of not

allowing the prosecution to make repeated efforts to convict fore129 355 U.S. 184 (1957).

130 The decision necessarily overruled Trono v. United States, 199 U.S. 521 (1905),

although the Court purported to distinguish the decision. Green v. United States,

355 U.S. 184, 194–97 (1957). See also Brantley v. Georgia, 217 U.S. 284 (1910) (no

due process violation where defendant is convicted of higher offense on second trial).

131 See also Price v. Georgia, 398 U.S. 323 (1970). The defendant was tried for

murder and was convicted of involuntary manslaughter. He obtained a reversal, was

again tried for murder, and again convicted of involuntary manslaughter. Acknowledging that, after reversal, Price could have been tried for involuntary manslaughter, the Court nonetheless reversed the second conviction because he had been subjected to the hazard of twice being tried for murder, in violation of the Double Jeopardy

Clause, and the effect on the jury of the murder charge being pressed could have

prejudiced him to the extent of the second conviction. But cf. Morris v. Mathews,

475 U.S. 237 (1986) (inadequate showing of prejudice resulting from reducing jeopardybarred conviction for aggravated murder to non-jeopardy-barred conviction for first

degree murder). “To prevail in a case like this, the defendant must show that, but

for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different.” Id. at 247.

132 437 U.S. 1 (1978).

133 Id. at 10–11. See also Greene v. Massey, 437 U.S. 19 (1978) (remanding for

determination whether appellate majority had reversed for insufficient evidence or

whether some of the majority had based decision on trial error); Hudson v. Louisiana, 450 U.S. 40 (1981) (Burks applies where appellate court finds some but insufficient evidence adduced, not only where it finds no evidence). Burks was distinguished in Justices of Boston Mun. Court v. Lydon, 466 U.S. 294 (1984), which held

that a defendant who had elected to undergo a bench trial with no appellate review

1488 AMENDMENT 5—RIGHTS OF PERSONS
closes giving the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. On the other

hand, if a reviewing court reverses a jury conviction because of its

disagreement on the weight rather than the sufficiency of the evidence, retrial is permitted; the appellate court’s decision does not

mean that acquittal was the only proper course, hence the deference required for acquittals is not merited.134 Also, the Burks rule

does not bar reprosecution following a reversal based on erroneous

admission of evidence, even if the remaining properly admitted evidence would be insufficient to convict.135

Sentence Increases.—The Double Jeopardy Clause protects

against imposition of multiple punishment for the same offense.136

The application of the principle leads, however, to a number of complexities. In a simple case, it was held that where a court inadvertently imposed both a fine and imprisonment for a crime for which

the law authorized one or the other but not both, it could not, after

the fine had been paid and the defendant had entered his short term

of confinement, recall the defendant and change its judgment by

sentencing him to imprisonment only.137 But the Court has held that

the imposition of a sentence does not from the moment of imposition have the finality that a judgment of acquittal has. Thus, it has

long been recognized that in the same term of court and before the

defendant has begun serving the sentence the court may recall him

and increase his sentence.138 Moreover, a defendant who is retried

but with the right of trial de novo before a jury (and with appellate review available) could not bar trial de novo and reverse his bench trial conviction by asserting

that the conviction had been based on insufficient evidence. The two-tiered system

in effect gave the defendant two chances at acquittal; under those circumstances

jeopardy was not terminated by completion of the first entirely optional stage.

134 Tibbs v. Florida, 457 U.S. 31 (1982). The decision was 5-to-4, the dissent arguing that weight and insufficiency determinations should be given identical Double

Jeopardy Clause treatment. Id. at 47 (Justices White, Brennan, Marshall, and

Blackmun).

135 Lockhart v. Nelson, 488 U.S. 33 (1988) (state may reprosecute under habitual offender statute even though evidence of a prior conviction was improperly

admitted; at retrial, state may attempt to establish other prior convictions as to which

no proof was offered at prior trial).

136 Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874); North Carolina v. Pearce,

395 U.S. 711, 717 (1969).

137 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).

138 Bozza v. United States, 330 U.S. 160 (1947). See also Pollard v. United States,

352 U.S. 354, 359–60 (1957) (imposition of prison sentence two years after court

imposed an invalid sentence of probation approved). Dicta in some cases had cast

doubt on the constitutionality of the practice. United States v. Benz, 282 U.S. 304,

307 (1931). However, United States v. DiFrancesco, 449 U.S. 117, 133–36, 138–39

(1980), upholding a statutory provision allowing the United States to appeal a sentence imposed on a “dangerous special offender,” removes any doubt on that score.

The Court there reserved decision on whether the government may appeal a sentence that the defendant has already begun to serve.

AMENDMENT 5—RIGHTS OF PERSONS 1489
after he is successful in overturning his first conviction is not protected by the Double Jeopardy Clause against receiving a greater

sentence upon his second conviction.139 An exception exists with respect to capital punishment, the Court having held that government may not again seek the death penalty on retrial when on the

first trial the jury had declined to impose a death sentence.140

Applying and modifying these principles, the Court narrowly approved the constitutionality of a statutory provision for sentencing

of “dangerous special offenders,” which authorized prosecution appeals of sentences and permitted the appellate court to affirm, reduce, or increase the sentence.141 The Court held that the provision did not offend the Double Jeopardy Clause. Sentences had never

carried the finality that attached to acquittal, and its precedents

indicated to the Court that imposition of a sentence less than the

maximum was in no sense an “acquittal” of the higher sentence.

Appeal resulted in no further trial or other proceedings to which a

defendant might be subjected, only the imposition of a new sentence. An increase in a sentence would not constitute multiple punishment, the Court continued, inasmuch as it would be within the

allowable sentence and the defendant could have no legitimate expectation of finality in the sentence as first given because the statutory scheme alerted him to the possibility of increase. Similarly upheld as within the allowable range of punishment contemplated by

the legislature was a remedy for invalid multiple punishments under consecutive sentences: a shorter felony conviction was vacated,

and time served was credited to the life sentence imposed for felonymurder. Even though the first sentence had been commuted and

139 North Carolina v. Pearce, 395 U.S. 711, 719–21 (1969). See also Chaffin v.

Stynchcombe, 412 U.S. 17, 23–24 (1973). The principle of implicit acquittal of an

offense drawn from Green v. United States, 355 U.S. 184 (1957), does not similarly

apply to create an implicit acquittal of a higher sentence. Pearce does hold that a

defendant must be credited with the time served against his new sentence. 395 U.S.

at 717–19.

140 Bullington v. Missouri, 451 U.S. 430 (1981). Four Justices dissented. Id. at

447 (Justices Powell, White, Rehnquist, and Chief Justice Burger). The Court disapproved Stroud v. United States, 251 U.S. 15 (1919), although formally distinguishing it. Bullington was followed in Arizona v. Rumsey, 467 U.S. 203 (1984), also involving a separate sentencing proceeding in which a life imprisonment sentence

amounted to an acquittal on imposition of the death penalty. Rumsey was decided

by 7–2 vote, with only Justices White and Rehnquist dissenting. In Monge v. California, 524 U.S. 721 (1998), the Court refused to extend the “narrow” Bullington exception outside the area of capital punishment. But see Sattazahn v. Pennsylvania, 537

U.S. 101 (2003) (state may seek the death penalty in a retrial when defendant appealed following discharge of the sentencing jury under a statute authorizing discharge based on the court’s “opinion that further deliberation would not result in a

unanimous agreement as to the sentence, in which case the court shall sentence the

defendant to life imprisonment”).

141 United States v. DiFrancesco, 449 U.S. 117 (1980). Four Justices dissented.

Id. at 143, 152 (Justices Brennan, White, Marshall, and Stevens).

1490 AMENDMENT 5—RIGHTS OF PERSONS
hence fully satisfied at the time the trial court revised the second

sentence, the resulting punishment was “no greater than the legislature intended,” hence there was no double jeopardy violation.142

The Court is also quite deferential to legislative classification

of recidivism sentencing enhancement factors as relating only to sentencing and as not constituting elements of an “offense” that must

be proved beyond a reasonable doubt. Ordinarily, therefore, sentence enhancements cannot be construed as additional punishment

for the previous offense, and the Double Jeopardy Clause is not implicated. “Sentencing enhancements do not punish a defendant for

crimes for which he was not convicted, but rather increase his sentence because of the manner in which he committed his crime of

conviction.” 143

“For the Same Offence”

Sometimes as difficult as determining when a defendant has been

placed in jeopardy is determining whether he was placed in jeopardy for the same offense. As noted previously, the same conduct

may violate the laws of two different sovereigns, and a defendant

may be proceeded against by both because each may have different

interests to serve.144 The same conduct may transgress two or more

different statutes, because laws reach lesser and greater parts of

one item of conduct, or may violate the same statute more than

once, as when one robs several people in a group at the same time.

Legislative Discretion as to Multiple Sentences.—It frequently happens that one activity of a criminal nature will violate

one or more laws or that one or more violations may be charged.145

142 Jones v. Thomas, 491 U.S. 376, 381–82 (1989).

143 United States v. Watts, 519 U.S. 148, 154 (1997) (relying on Witte v. United

States, 515 U.S. 389 (1995), and holding that a sentencing court may consider earlier conduct of which the defendant was acquitted, so long as that conduct is proved

by a preponderance of the evidence). See also Almendarez-Torres v. United States,

523 U.S. 224 (1998) (Congress’s decision to treat recidivism as a sentencing factor

does not violate due process); Monge v. California, 524 U.S. 721 (1998) (retrial is

permissible following appellate holding of failure of proof relating to sentence enhancement). Justice Scalia, whose dissent in Almendarez-Torres argued that there

was constitutional doubt over whether recidivism factors that increase a maximum

sentence must be treated as a separate offense for double jeopardy purposes (523

U.S. at 248), answered that question affirmatively in his dissent in Monge. 524 U.S.

740–41.

144 See discussion supra under “Development and Scope.”

145 There are essentially two kinds of situations here. There are “doubledescription” cases in which criminal law contains more than one prohibition for conduct arising out of a single transaction. E.g., Gore v. United States, 357 U.S. 386,

392–93 (1958) (one sale of narcotics resulted in three separate counts: (1) sale of

drugs not in pursuance of a written order, (2) sale of drugs not in the original stamped

package, and (3) sale of drugs with knowledge that they had been unlawfully imported). And there are “unit-of-prosecution” cases in which the same conduct may

AMENDMENT 5—RIGHTS OF PERSONS 1491
Although the question is not totally free of doubt, it appears that

the Double Jeopardy Clause does not limit the legislative power to

split a single transaction into separate crimes so as to give the prosecution a choice of charges that may be tried in one proceeding,

thereby making multiple punishments possible for essentially one

transaction.146 “Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those

two statutes proscribe the ‘same’ conduct under Blockburger, a court’s

task of statutory construction is at an end and . . . the trial court

or jury may impose cumulative punishment under such statutes in

a single trial.” 147

The clause does, however, create a rule of construction—a presumption against the judiciary imposing multiple punishments for

the same transaction unless Congress has “spoken in language that

is clear and definite” 148 to pronounce its intent that multiple punishments indeed be imposed. The commonly used test in determining whether Congress would have wanted to punish as separate offenses conduct occurring in the same transaction, absent otherwise

clearly expressed intent, is the “same evidence” rule. The rule, announced in Blockburger v. United States,

149 “is that where the same

act or transaction constitutes a violation of two distinct statutory

violate the same statutory prohibition more than once. E.g., Bell v. United States,

349 U.S. 81 (1955) (defendant who transported two women across state lines for an

immoral purpose in one trip in same car indicted on two counts of violating Mann

Act). See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP.

CT. REV. 81, 111–22.

146 Albernaz v. United States, 450 U.S. 333, 343–44 (1981) (defendants convicted on separate counts of conspiracy to import marijuana and conspiracy to distribute marijuana, both charges relating to the same marijuana.) The concurrence

objected that the clause does preclude multiple punishments for separate statutory

offenses unless each requires proof of a fact that the others do not. Id. at 344. Because the case involved separate offenses that met this test, Albernaz strictly speaking is not a square holding and previous dicta is otherwise, but Albernaz’s dicta is

well-considered in view of the positions of at least four of its Justices who have objected to the dicta in other cases suggesting a constitutional restraint by the clause.

Whalen v. United States, 445 U.S. 684, 695, 696, 699 (1980) (Justices White, Blackmun,

Rehnquist, and Chief Justice Burger).

147 Missouri v. Hunter, 459 U.S. 359, 368–69 (1983) (separate offenses of “first

degree robbery,” defined to include robbery under threat of violence, and “armed criminal action”). Only Justices Marshall and Stevens dissented, arguing that the legislature should not be totally free to prescribe multiple punishment for the same conduct, and that the same rules should govern multiple prosecutions and multiple

punishments.

148 United States v. Universal C.I.T. Corp., 344 U.S. 218, 221–22 (1952).

149 284 U.S. 299, 304 (1932). This case itself was not a double jeopardy case,

but it derived the rule from Gavieres v. United States, 220 U.S. 338, 342 (1911),

which was a double jeopardy case. See also Carter v. McClaughry, 183 U.S. 365 (1902);

Morgan v. Devine, 237 U.S. 632 (1915); Albrecht v. United States, 273 U.S. 1 (1927);

Pinkerton v. United States, 328 U.S. 640 (1946); American Tobacco Co. v. United

States, 328 U.S. 781 (1946); United States v. Michener, 331 U.S. 789 (1947); Pereira

v. United States, 347 U.S. 1 (1954); Callanan v. United States, 364 U.S. 587 (1961).

1492 AMENDMENT 5—RIGHTS OF PERSONS
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.” Thus, in Gore v. United States,

150

the Court held that defendant’s one act of selling narcotics had violated three distinct criminal statutes, each of which required proof

of a fact not required by the others; prosecuting him on all three

counts in the same proceeding was therefore permissible.151 So too,

the same evidence rule does not upset the “established doctrine”

that, for double jeopardy purposes, “a conspiracy to commit a crime

is a separate offense from the crime itself,” 152 or the related principle that Congress may prescribe that predicate offenses and “continuing criminal enterprise” are separate offenses.153 On the other

hand, in Whalen v. United States,

154 the Court determined that a

defendant could not be separately punished for rape and for killing

the same victim in the perpetration of the rape, because it is not

the case that each statute requires proof of a fact that the other

does not, and no indication existed in the statutes and the legislative history that Congress wanted the separate offenses punished.155 In this as in other areas, a guilty plea ordinarily precludes collateral attack.156

150 357 U.S. 386 (1958).

151 See also Albernaz v. United States, 450 U.S. 333 (1981); Iannelli v. United

States, 420 U.S. 770 (1975) (defendant convicted on two counts, one of the substantive offense, one of conspiracy to commit the substantive offense; defense raised variation of Blockburger test, Wharton’s Rule requiring that one may not be punished for

conspiracy to commit a crime when the nature of the crime necessitates participation of two or more persons for its commission; Court recognized Wharton’s Rule as

a double-jeopardy inspired presumption of legislative intent but held that congressional intent in this case was “clear and unmistakable” that both offenses be punished separately).

152 United States v. Felix, 503 U.S. 378, 391 (1992). But cf. Rutledge v. United

States, 517 U.S. 292 (1996) (21 U.S.C. § 846, prohibiting conspiracy to commit drug

offenses, does not require proof of any fact that is not also a part of the continuing

criminal enterprise offense under 21 U.S.C. § 848, so there are not two separate offenses).

153 Garrett v. United States, 471 U.S. 773 (1985) (“continuing criminal enterprise” is a separate offense under the Comprehensive Drug Abuse Prevention and

Control Act of 1970).

154 445 U.S. 684 (1980).

155 The Court reasoned that a conviction for killing in the course of rape could

not be had without providing all of the elements of the offense of rape. See also

Jeffers v. United States, 432 U.S. 137 (1977) (no indication in legislative history Congress intended defendant to be prosecuted both for conspiring to distribute drugs

and for distributing drugs in concert with five or more persons); Simpson v. United

States, 435 U.S. 6 (1978) (defendant improperly prosecuted both for committing bank

robbery with a firearm and for using a firearm to commit a felony); Bell v. United

States, 349 U.S. 81 (1955) (simultaneous transportation of two women across state

lines for immoral purposes one violation of Mann Act rather than two).

156 United States v. Broce, 488 U.S. 563 (1989) (defendant who pled guilty to

two separate conspiracy counts is barred from collateral attack alleging that in fact

there was only one conspiracy and that double jeopardy applied).

AMENDMENT 5—RIGHTS OF PERSONS 1493
Successive Prosecutions for “the Same Offense”.—

Successive prosecutions raise fundamental double jeopardy concerns extending beyond those raised by enhanced and multiple punishments. It is more burdensome for a defendant to face charges in

separate proceedings, and if those proceedings are strung out over

a lengthy period the defendant is forced to live in a continuing state

of uncertainty. At the same time, multiple prosecutions allow the

state to hone its trial strategies through successive attempts at conviction.157 In Brown v. Ohio,

158 the Court, apparently for the first

time, applied the same evidence test to bar successive prosecutions

in state court for different statutory offenses involving the same conduct. The defendant had been convicted of “joyriding,” defined as

operating a motor vehicle without the owner’s consent, and was then

prosecuted and convicted of stealing the same automobile. Because

the state courts had conceded that joyriding was a lesser included

offense of auto theft, the Court observed that each offense required

the same proof and for double jeopardy purposes met the Blockburger

test. The second conviction was overturned.159 Application of the same

principles resulted in a holding that a prior conviction of failing to

reduce speed to avoid an accident did not preclude a second trial

for involuntary manslaughter, because failing to reduce speed was

not a necessary element of the statutory offense of manslaughter,

unless the prosecution in the second trial had to prove failing to

reduce speed to establish this particular offense.160 In 1990, the Court

modified the Brown approach, stating that the appropriate focus is

on same conduct rather than same evidence.161 That interpretation

held sway only three years, however, before being repudiated as “wrong

157 See Grady v. Corbin, 495 U.S. 508, 518–19 (1990).

158 432 U.S. 161 (1977). Cf. In re Nielsen, 131 U.S. 176 (1889) (prosecution of

Mormon for adultery held impermissible following his conviction for cohabiting with

more than one woman, even though second prosecution required proof of an additional fact—that he was married to another woman).

159 See also Harris v. Oklahoma, 433 U.S. 682 (1977) (defendant who had been

convicted of felony murder for participating in a store robbery with another person

who shot a store clerk could not be prosecuted for robbing the store, since store robbery was a lesser-included crime in the offense of felony murder).

160 Illinois v. Vitale, 447 U.S. 410 (1980).

161 Grady v. Corbin, 495 U.S. 508 (1990) (holding that the state could not prosecute a traffic offender for negligent homicide because it would attempt to prove conduct for which the defendant had already been prosecuted—driving while intoxicated and failure to keep to the right of the median). A subsequent prosecution is

barred, the Court explained, if the government, to establish an essential element of

an offense, will prove conduct that constitutes an offense for which the defendant

has already been prosecuted. Id. at 521.

1494 AMENDMENT 5—RIGHTS OF PERSONS
in principle [and] unstable in application.” 162 The Brown Court had

noted some limitations applicable to its holding,163 and more have

emerged subsequently. Principles appropriate in the “classically simple”

lesser-included-offense and related situations are not readily transposable to “multilayered conduct” governed by the law of conspiracy and continuing criminal enterprise, and it remains the law

that “a substantive crime and a conspiracy to commit that crime

are not the ‘same offense’ for double jeopardy purposes.” 164 For double

jeopardy purposes, a defendant is “punished . . . only for the offense of which [he] is convicted”; a later prosecution or later punishment is not barred simply because the underlying criminal activity

has been considered at sentencing for a different offense.165 Similarly, recidivism-based sentence enhancement does not constitute multiple punishment for the “same” prior offense, but instead is a stiffened penalty for the later crime.166

The “Same Transaction” Problem.—The same conduct may

also give rise to multiple offenses in a way that would satisfy the

Blockburger test if that conduct victimizes two or more individuals,

and therefore constitutes a separate offense as to each of them. In

Hoag v. New Jersey,

167 before the Double Jeopardy Clause was applied to the states, the Court found no due process problem in successive trials arising out of a tavern hold-up in which five customers were robbed. Ashe v. Swenson,

168 however, presented the Court

with the Hoag fact situation directly under the Double Jeopardy

162 United States v. Dixon, 509 U.S. 688, 709 (1993) (applying Blockburger test

to determine whether prosecution for a crime, following conviction for criminal contempt for violation of a court order prohibiting that crime, constitutes double jeopardy).

163 The Court suggested that if the legislature had provided that joyriding is a

separate offense for each day the vehicle is operated without the owner’s consent, so

that the two indictments each specifying a different date on which the offense occurred would have required different proof, the result might have been different,

but this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S. 161, 169

n.8 (1977). The Court also suggested that an exception might be permitted where

the State is unable to proceed on the more serious charge at the outset because the

facts necessary to sustain that charge had not occurred or had not been discovered.

Id. at 169 n.7. See also Jeffers v. United States, 432 U.S. 137, 150–54 (1977) (plurality opinion) (exception where defendant elects separate trials); Ohio v. Johnson, 467

U.S. 493 (1984) (trial court’s acceptance of guilty plea to lesser included offense and

dismissal of remaining charges over prosecution’s objections does not bar subsequent prosecution on those “remaining” counts).

164 United States v. Felix, 503 U.S. 378, 389 (1992). The fact that Felix constituted a “large exception” to Grady was one of the reasons the Court cited in overruling Grady. United States v. Dixon, 509 U.S. 688, 709–10 (1993).

165 Witte v. United States, 515 U.S. 389 (1995) (consideration of defendant’s alleged cocaine dealings in determining sentence for marijuana offenses does not bar

subsequent prosecution on cocaine charges).

166 Monge v. California, 524 U.S. 721, 728 (1998).

167 356 U.S. 464 (1958). See also Ciucci v. Illinois, 356 U.S. 571 (1958).

168 397 U.S. 436 (1970).

AMENDMENT 5—RIGHTS OF PERSONS 1495
Clause. The defendant had been acquitted at trial of robbing one

player in a poker game; the defense offered no testimony and did

not contest evidence that a robbery had taken place and that each

of the players had lost money. A second trial was held on a charge

that the defendant had robbed a second of the seven poker players,

and on the basis of stronger identification testimony the defendant

was convicted. Reversing the conviction, the Court held that the doctrine of collateral estoppel 169 was a constitutional rule made applicable to the states through the Double Jeopardy Clause. Because

the only basis upon which the jury could have acquitted the defendant at his first trial was a finding that he was not present at the

robbery, hence was not one of the robbers, the state could not relitigate

that issue; with that issue settled, there could be no conviction.170

Several Justices would have gone further and required a compulsory joinder of all charges against a defendant growing out of a single

criminal act, occurrence, episode, or transaction, except where a crime

is not discovered until prosecution arising from the same transaction has begun or where the same jurisdiction does not have cognizance of all the crimes.171 But the Court has “steadfastly refused to

adopt the ‘single transaction’ view of the Double Jeopardy Clause.” 172

169 “ ‘Collateral estoppel’ is an awkward phrase . . . [which] means simply that

when an issue of ultimate fact has once been determined by a final judgment, that

issue cannot again be litigated between the same parties in any future lawsuit.” Id.

at 443. First developed in civil litigation, the doctrine was applied in a criminal case

in United States v. Oppenheimer, 242 U.S. 85 (1916). See also Sealfon v. United

States, 332 U.S. 575 (1948). The term “collateral estoppel” has been replaced by “issue preclusion,” which also includes the doctrine formerly known as “direct estoppel.” Taylor v. Sturgell, 553 U.S. ___, No. 07–371, slip op. at 9, n.5 (2008), quoted in

Bobby v. Bies, 556 U.S. ___, No. 08–598, slip op. at 2 n.1 (2009).

170 Ashe v. Swenson, 397 U.S. 436, 466 (1970). See also Harris v. Washington,

404 U.S. 55 (1971); Turner v. Arkansas, 407 U.S. 366 (1972). Cf. Dowling v. United

States, 493 U.S. 342 (1990), in which the Court concluded that the defendant’s presence at an earlier crime for which he had been acquitted had not necessarily been

decided in his acquittal. Dowling is distinguishable from Ashe, however, because in

Dowling the evidence relating to the first conviction was not a necessary element of

the second offense. In Bobby v. Bies, 556 U.S. ___, No. 08–598 (2009), the Court

noted that “issue preclusion is a plea available to prevailing parties. The doctrine

bars relitigation of determinations necessary to the ultimate outcome of a prior proceeding.” Slip op. at 2–3. “In addition, even where the core requirements of issue

preclusion are met, an exception to the general rule may apply when a ‘change in

[the] applicable legal context’ intervenes.” Slip op. at 8, quoting Restatement (Second) of Judgments, § 28, Comment c.

171 Ashe v. Swenson, 397 U.S. 436, 448 (1970) (Justices Brennan, Douglas, and

Marshall concurring). Justices Brennan and Marshall adhered to their position in

Brown v. Ohio, 432 U.S. 161, 170 (1977) (concurring); and Thompson v. Oklahoma,

429 U.S. 1053 (1977) (dissenting from denial of certiorari).

172 Garrett v. United States, 471 U.S. 773, 790 (1985). Earlier, the approach had

been rejected by Chief Justice Burger in Ashe v. Swenson, 397 U.S. 436, 468 (1970)

(dissenting), by him and Justice Blackmun in Harris v. Washington, 404 U.S. 55, 57

(1971) (dissenting), and, perhaps, by Justice Rehnquist in Turner v. Arkansas, 407

U.S. 366, 368 (1972) (dissenting).

1496 AMENDMENT 5—RIGHTS OF PERSONS
Yeager v. United States,

173 unlike Ashe, “entail[ed] a trial that

included multiple counts rather than a trial for a single offense. And,

while Ashe involved an acquittal for that single offense, this case

[Yeager] involves an acquittal on some counts and a mistrial declared on others. The reasoning in Ashe is nevertheless controlling

because, for double jeopardy purposes, the jury’s inability to reach

a verdict on [some] counts was a nonevent and the acquittals on

the [other] counts are entitled to the same effect as Ashe’s acquittal.” The lower court in Yeager had “reasoned that the hung counts

must be considered to determine what issues the jury decided in

the first trial. Viewed in isolation, the [lower] court explained, the

acquittals . . . would preclude retrial because [of the facts that the

jury would have had to have found in light of its acquittals]. Viewed

alongside the hung counts, however, the acquittals appeared less

decisive,” 174 because, if the jury had actually found the facts implied by its acquittals, then it would have acquitted on the hung

counts as well. In other words, its having acquitted on some counts

and not on others was logically inconsistent.175 The Supreme Court,

however, found that nothing should be inferred from the failure to

acquit on some counts, because “there is no way to decipher what a

hung count represents. . . . A host of reasons—sharp disagreement, confusion about the issues, exhaustion after a long trial, to

name but a few—could work alone or in tandem to cause a jury to

hang. . . . Accordingly, we hold that the consideration of hung counts

has no place in the issue-preclusion analysis.” 176

SELF-INCRIMINATION

Development and Scope

The source of the Self-Incrimination Clause was the maxim “nemo

tenetur seipsum accusare,” that “no man is bound to accuse himself.” The maxim is but one aspect of two different systems of law

enforcement which competed in England for acceptance; the accusatorial and the inquisitorial. In the accusatorial system, which predated the reign of Henry II but was expanded and extended by him,

first the community and then the state by grand and petit juries

proceeded against alleged wrongdoers through the examination of

173 557 U.S. ___, No. 08–67, slip op. at 9 (2009).

174 557 U.S. ___, No. 08–67, slip op. at 9–10.

175 The Court drew an analogy between its finding that this logical inconsistency does not affect the preclusive force of the acquittals under the Double Jeopardy Clause, and Justice Holmes’ holding, in Dunn v. United States, 284 U.S. 390,

393 (1932), “that a logical inconsistency between a guilty verdict and a verdict of

acquittal does not impugn the validity of either verdict.” 557 U.S. ___, No. 08–67,

slip op. at 1.

176 557 U.S. ___, No. 08–67, slip op. at 10–11.

AMENDMENT 5—RIGHTS OF PERSONS 1497
others, and in the early years through examination of the defendant as well. The inquisitorial system, which developed in the ecclesiastical courts, compelled the alleged wrongdoer to affirm his culpability through the use of the oath ex officio. Under the oath, an

official had the power to make a person before him take an oath to

tell the truth to the full extent of his knowledge as to all matters

about which he would be questioned; before administration of the

oath the person was not advised of the nature of the charges against

him, or whether he was accused of crime, and was also not informed of the nature of the questions to be asked.177

The use of this oath in Star Chamber proceedings, especially to

root out political heresies, combined with opposition to the ecclesiastical oath ex officio, led over a long period of time to general acceptance of the principle that a person could not be required to accuse himself under oath in any proceeding before an official tribunal

seeking information looking to a criminal prosecution, or before a

magistrate investigating an accusation against him with or without oath, or under oath in a court of equity or a court of common

law.178 The precedents in the colonies are few in number, but following the Revolution six states had embodied the privilege against

self-incrimination in their constitutions,179 and the privilege was one

of those recommended by several state ratifying conventions for inclusion in a federal bill of rights.180 Madison’s version of the clause

read “nor shall be compelled to be a witness against himself,” but a

House amendment inserted “in any criminal case” into the provision.181

The historical studies cited demonstrate that in England and

the colonies the privilege was narrower than the interpretation now

prevailing. Of course, constitutional guarantees often expand, or contract, over time as judges adapt underlying policies to new factual

177 Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England, in ESSAYS IN HISTORY AND POLITICAL THEORY

IN HONOR OF CHARLES HOWARD MCILWAIN 199 (C. Wittke ed., 1936).

178 The traditional historical account is 8 J. WIGMORE, A TREATISE ON THE ANGLOAMERICAN SYSTEM OF EVIDENCE § 2250 (J. McNaughton rev. 1961), but more recent historical studies have indicated that Dean Wigmore was too grudging of the privilege.

LEONARD LEVY, ORIGINS OF THE FIFTH AMENDMENT: THE RIGHT AGAINST SELF-INCRIMINATION

(1968); Morgan, The Privilege Against Self-Incrimination, 34 MINN. L. REV. 1 (1949).

179 3 F. Thorpe, The Federal and State Constitutions, reprinted in H. DOC. NO.

357, 59th Congress, 2d Sess. 1891 (1909) (Massachusetts); 4 id. at 2455 (New Hampshire); 5 id. at 2787 (North Carolina), 3038 (Pennsylvania); 6 id. at 3741 (Vermont);

7 id. at 3813 (Virginia).

180 Amendments were recommended by an “Address” of a minority of the Pennsylvania convention after they had been voted down as a part of the ratification

action, 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 628, 658, 664

(1971), and then the ratifying conventions of Massachusetts, South Carolina, New

Hampshire, Virginia, and New York formally took this step.

181 Id. at 753 (August 17, 1789).

1498 AMENDMENT 5—RIGHTS OF PERSONS
patterns and practices. The difficulty is that the Court has generally not articulated the policy objectives underlying the privilege,

usually citing a “complex of values” when it has attempted to state

the interests served by it.182 Commonly mentioned in numerous cases

was the assertion that the privilege was designed to protect the innocent and further the search for truth.183

It appears now, however, that the Court has rejected both of

these as inapplicable and has settled upon the principle that the

clause serves two interrelated interests: the preservation of an accusatorial system of criminal justice, which goes to the integrity of

the judicial system, and the preservation of personal privacy from

unwarranted governmental intrusion.184 To protect these interests

and to preserve these values, the privilege “is not to be interpreted

182 Discussing the privilege in one case, the Court stated:

It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel

trilemma of self-accusation, perjury or contempt; our preference for

an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates

‘a fair state-individual balance by requiring the government to leave

the individual alone until good cause is shown for disturbing him and

by requiring the government in its contest with the individual to shoulder the entire load’; our respect for the inviolability of the human

personality and of the right of each individual ‘to a private enclave

where he may lead a private life’; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’

Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1964) (citations omitted).

183 E.g., Twining v. New Jersey, 211 U.S. 78, 91 (1908); Ullmann v. United States,

350 U.S. 422, 426 (1956); Quinn v. United States, 349 U.S. 155, 162–63 (1955).

184 In Tehan v. United States ex rel. Shott, the Court noted:

[T]he basic purposes that lie behind the privilege against selfincrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which

even the guilty are not to be convicted unless the prosecution “shoulder the entire load.”

. . . .

The basic purpose of a trial is the determination of truth, and it is

self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a

conviction because the accused is poor is to impede that purpose and

to infect a criminal proceeding with the clear danger of convicting

the innocent. . . . By contrast, the Fifth Amendment’s privilege against

self-incrimination is not an adjunct to the ascertainment of truth. That

privilege, like the guarantees of the Fourth Amendment, stands as a

protection of quite different constitutional values—values reflecting

the concern of our society for the right of each individual to be let

alone.

Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 416 (1966); see also Miranda

v. Arizona, 384 U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760–65

(1966); California v. Byers, 402 U.S. 424, 448–58 (1971) (Harlan, J., concurring). For

AMENDMENT 5—RIGHTS OF PERSONS 1499
literally.” Rather, the “sole concern [of the privilege] is, as its name

indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.” 185 Furthermore, “[t]he privilege afforded not only extends to answers that

would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence

needed to prosecute . . . .” 186

The privilege against self-incrimination parries the general obligation to provide testimony under oath when called upon, but it

also applies in police interrogations. In all cases, the privilege must

be supported by a reasonable fear that a response will be incriminatory. The issue is a matter of law for a court to determine,187 and

therefore, with limited exception, one must claim the privilege to

benefit from it.188 Otherwise, silence in the face of questioning may

be insufficient to invoke the privilege because it may not afford an

adequate opportunity either to test whether information withheld

falls within the privilege or to cure a violation through a grant of

immunity.189 A witness who fails to claim the privilege explicitly when

an affirmative claim is required is deemed to have waived it, and

waiver may be found where the witness has answered some preliminary questions but desires to stop at a certain point.190 However,

a critical view of the privilege, see Henry Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671 (1968).

185 Ullmann v. United States, 350 U.S. 422, 438–39 (1956).

186 Hoffman v. United States, 341 U.S. 479, 486 (1951); see also Emspak v. United

States, 349 U.S. 190 (1955); Blau v. United States, 340 U.S. 159 (1950); Blau v. United

States, 340 U.S. 332 (1951).

187 E.g., Mason v. United States, 244 U.S. 362 (1917).

188 The primary exceptions are for a criminal defendant not taking the stand

and a suspect in inherently coercive circumstances (e.g., custodial interrogation). See

Salinas v. Texas, 570 U.S. ___, No. 12–246, slip op. at 4–6 (2013) (plurality opinion).

189 In Salinas v. Texas, 570 U.S. ___, No. 12–246, slip op. (2013), the defendant—

Salinas—answered all questions during noncustodial questioning about a double murder, other than one about whether his shotgun would match shells recovered at the

murder scene. He fell silent on this inquiry, but did not assert the privilege against

self-incrimination. At closing argument at Salinas’s murder trial, the prosecutor argued that this silence indicated guilt, and a majority of the Court endorsed these

comments. The Court affirmed the Texas Supreme Court’s ruling that Salinas had

failed to invoke his Fifth Amendment rights because he did not do so explicitly. Although no opinion drew a majority of Justices, in an opinion joined by Chief Justice

Roberts and Justice Kennedy, Justice Alito observed that a defendant could choose

to remain silent for numerous reasons other than avoiding self-incrimination. 570

U.S. ___, No. 12–246, slip op. at 9 (plurality opinion).

190 Rogers v. United States, 340 U.S. 367 (1951); United States v. Monia, 317

U.S. 424 (1943). The “waiver” concept here has been pronounced “analytically [un-

]sound,” with the Court preferring to reserve the term “waiver” “for the process by

which one affirmatively renounces the protection of the privilege.” Garner v. United

States, 424 U.S. 648, 654 n.9 (1976). Thus, the Court has settled upon the concept

of “compulsion” as applied to “cases where disclosures are required in the face of

claim of privilege.” Id. “[I]n the ordinary case, if a witness under compulsion to tes1500 AMENDMENT 5—RIGHTS OF PERSONS
an assertion of innocence in conjunction with a claim of the privilege does not obviate the right of a witness to invoke it, as her responses still may provide the government with evidence it may later

seek to use against her.191

Although an individual must have reasonable cause to apprehend danger and cannot be the judge of the validity of his claim, a

court that would deny a claim of the privilege must be “perfectly

clear, from a careful consideration of all the circumstances in the

case, that the individual is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.” 192 To reach a determination, furthermore, a trial judge may not require a witness

to disclose so much of the danger as to render the privilege nugatory. As the Court observed:

[I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the

privilege is designed to guarantee. To sustain the privilege, it need only be

evident from the implications of the question, in the setting in which it is

asked, that a responsive answer to the question or an explanation of why it

cannot be answered might be dangerous because injurious disclosure could

result.193

The privilege against self-incrimination is a personal one and

cannot be used by or on behalf of any organization, such as a corporation. Thus, a corporation cannot object on self-incrimination grounds

to a subpoena of its records and books or to the compelled testimony of those corporate agents who have been given personal immunity from criminal prosecution.194 Nor may a corporate official

with custody of corporate documents that incriminate him personally resist their compelled production on the assertion of his personal privilege.195

tify makes disclosures instead of claiming the privilege, the government has not ‘compelled’ him to incriminate himself.” Id. at 654. Similarly, the Court has enunciated

the concept of “voluntariness” to be applied in situations where it is claimed that a

particular factor denied the individual a “free choice to admit, to deny, or to refuse

to answer.” Id. at 654 n.9, 656–65.

191 Ohio v. Reiner, 532 U.S. 17 (2001).

192 Hoffman, 341 U.S. at 488 (quoting Temple v. Commonwealth, 75 Va. 892,

898 (1881)). For an application of these principles, see Malloy v. Hogan, 378 U.S. 1,

11–14 (1964), and id. at 33 (White, Stewart JJ., dissenting). Where the government

is seeking to enforce an essentially noncriminal statutory scheme through compulsory disclosure, some Justices would apparently relax the Hoffman principles. Cf.

California v. Byers, 402 U.S. 424 (1971) (plurality opinion).

193 Hoffman, 341 U.S. at 486–87.

194 United States v. White, 322 U.S. 694, 701 (1944); Baltimore & Ohio R.R. v.

ICC, 221 U.S. 612 (1911); Hale v. Henkel, 201 U.S. 43, 69–70, 74–75 (1906).

195 United States v. White, 322 U.S. 694, 699–700 (1944); Wilson v. United States,

221 U.S. 361, 384–385 (1911). But the government may make no evidentiary use of

the act of production in proceeding individually against the corporate custodian. Braswell

v. United States, 487 U.S. 99 (1988). Cf. George Campbell Painting Corp. v. Reid,

AMENDMENT 5—RIGHTS OF PERSONS 1501
A witness has traditionally been able to claim the privilege in

any proceeding whatsoever in which testimony is legally required

when his answer might be used against him in that proceeding or

in a future criminal proceeding or when it might be exploited to

uncover other evidence against him.196 Incrimination is not complete once guilt has been adjudicated, and hence the privilege may

be asserted during the sentencing phase of trial.197 Conversely, there

is no valid claim on the ground that the information sought can be

used in proceedings which are not criminal in nature,198 and there

can be no valid claim if there is no criminal prosecution199 The Court

in recent years has also applied the privilege to situations, such as

police interrogation of suspects, in which there is no legal compulsion to speak.200

What the privilege protects against is compulsion of “testimonial” disclosures. Thus, the clause is not offended by such nontestimonial compulsions as requiring a person in custody to stand

or walk in a police lineup, to speak prescribed words, to model particular clothing, or to give samples of handwriting, fingerprints, or

392 U.S. 286 (1968); United States v. Rylander, 460 U.S. 752 (1983) (witness who

had failed to appeal production order and thus had burden in contempt proceeding

to show inability to then produce records could not rely on privilege to shift this

evidentiary burden).

196 Thus, not only may a defendant or a witness in a criminal trial, including a

juvenile proceeding, In re Gault, 387 U.S. 1, 42–57 (1967), claim the privilege but so

may a party or a witness in a civil court proceeding, McCarthy v. Arndstein, 266

U.S. 34 (1924), a potential defendant or any other witness before a grand jury, Reina

v. United States, 364 U.S. 507 (1960); Counselman v. Hitchcock, 142 U.S. 547, 563

(1892), or a witness before a legislative inquiry, Watkins v. United States, 354 U.S.

178, 195–96 (1957); Quinn v. United States, 349 U.S. 155 (1955); Emspak v. United

States, 349 U.S. 190 (1955), or before an administrative body. In re Groban, 352

U.S. 330, 333, 336–37, 345–46 (1957); ICC v. Brimson, 154 U.S. 447, 478–80 (1894).

197 Estelle v. Smith, 451 U.S. 454, 462–63 (1981) (“We can discern no basis to

distinguish between the guilt and penalty phases of respondent’s capital murder trial

so far as the protection of the Fifth Amendment privilege is concerned”); Mitchell v.

United States, 526 U.S. 314 (1999) (non-capital sentencing).

198 Allen v. Illinois, 478 U.S. 364 (1986) (declaration that person is “sexually dangerous” under Illinois law is not a criminal proceeding); Minnesota v. Murphy, 465

U.S. 420, 435 n.7 (1984) (revocation of probation is not a criminal proceeding, hence

“there can be no valid claim of the privilege on the ground that the information

sought can be used in revocation proceedings”). In Murphy, the Court went on to

explain that “a State may validly insist on answers to even incriminating questions

and hence sensibly administer its probation system, as long as it recognizes that

the required answers may not be used in a criminal proceeding and thus eliminates

the threat of incrimination. Under such circumstances, a probationer’s ‘right to immunity as a result of his compelled testimony would not be at stake,’ and nothing in

the Federal Constitution would prevent a State from revoking probation for a refusal to answer . . . .” Id. (citations omitted).

199 Chavez v. Martinez, 538 U.S. 760 (2003) (rejecting damages claim brought

by suspect interrogated in hospital but not prosecuted).

200 Miranda v. Arizona, 384 U.S. 436 (1966).

1502 AMENDMENT 5—RIGHTS OF PERSONS
blood.201 A person may be compelled to produce specific documents

even though they contain incriminating information.202 If, however,

the existence of specific documents is not known to the government, and the act of production informs the government about the

existence, custody, or authenticity of the documents, then the privilege is implicated.203 Application of these principles resulted in a

holding that the Independent Counsel could not base a prosecution

on incriminating evidence identified and produced as the result of

compliance with a broad subpoena for all information relating to

201 Schmerber v. California, 384 U.S. 757, 764 (1966); United States v. Wade,

388 U.S. 218, 221–23 (1967); Holt v. United States, 218 U.S. 245, 252 (1910). In

California v. Byers, 402 U.S. 424 (1971), four Justices believed that requiring any

person involved in a traffic accident to stop and give his name and address did not

involve testimonial compulsion and therefore the privilege was inapplicable, id. at

431–34 (Chief Justice Burger and Justices Stewart, White, and Blackmun), but Justice Harlan, id. at 434 (concurring), and Justices Black, Douglas, Brennan, and Marshall, id. at 459, 464 (dissenting), disagreed. In South Dakota v. Neville, 459 U.S.

553 (1983), the Court indicated as well that a state may compel a motorist suspected of drunk driving to submit to a blood alcohol test, and may also give the

suspect a choice about whether to submit, but use his refusal to submit to the test

as evidence against him. The Court rested its evidentiary ruling on the absence of

coercion, preferring not to apply the sometimes difficult distinction between testimonial and physical evidence. In another case, involving roadside videotaping of a drunk

driving suspect, the Court found that the slurred nature of the suspect’s speech, as

well as his answers to routine booking questions as to name, address, weight, height,

eye color, date of birth, and current age, were not testimonial in nature. Pennsylvania v. Muniz, 496 U.S. 582 (1990). On the other hand, the suspect’s answer to a

request to identify the date of his sixth birthday was considered testimonial. Id. Two

Justices challenged the interpretation limiting application to “testimonial” disclosures, claiming that the original understanding of the word “witness” was not limited to someone who gives testimony, but included someone who gives any kind of

evidence. United States v. Hubbell, 530 U.S. 27, 49 (2000) (Justice Thomas, joined

by Justice Scalia, concurring).

202 Fisher v. United States, 425 U.S. 391 (1976). Compelling a taxpayer by subpoena to produce documents produced by his accountants from his own papers does

not involve testimonial self-incrimination and is not barred by the privilege. “[T]he

Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to

make a testimonial communication that is incriminating.” Id. at 408 (emphasis by

Court). Even further removed from the protection of the privilege is seizure pursuant to a search warrant of business records in the handwriting of the defendant.

Andresen v. Maryland, 427 U.S. 463 (1976). A court order compelling a target of a

grand jury investigation to sign a consent directive authorizing foreign banks to disclose records of any and all accounts over which he had a right of withdrawal is not

testimonial in nature, since the factual assertions are required of the banks and not

of the target. Doe v. United States, 487 U.S. 201 (1988).

203 In United States v. Doe, 465 U.S. 605 (1984), the Court distinguished Fisher,

upholding lower courts’ findings that the act of producing tax records implicates the

privilege because it would compel admission that the records exist, that they were

in the taxpayer’s possession, and that they are authentic. Similarly, a juvenile court’s

order to produce a child implicates the privilege, because the act of compliance “would

amount to testimony regarding [the subject’s] control over and possession of [the

child].” Baltimore Dep’t of Social Services v. Bouknight, 493 U.S. 549, 555 (1990).

AMENDMENT 5—RIGHTS OF PERSONS 1503
the individual’s income, employment, and professional relationships.204

The protection is against “compulsory” incrimination, and traditionally the Court has treated within the clause only those compulsions which arise from legally enforceable obligations, culminating

in imprisonment for refusal to testify or to produce documents.205

The compulsion need not be imprisonment, but can also be termination of public employment 206 or disbarment of a lawyer 207 as a

legal consequence of a refusal to make incriminating admissions.

The degree of coercion may also prove decisive, the Court having

ruled that moving a prisoner from a medium security unit to a maximum security unit was insufficient to compel him to incriminate

himself in spite of the attendant loss of privileges and the harsher

living conditions.208 However, although it appears that prisoners 209

and probationers 210 have less protection than others do, the Court

204 United States v. Hubbell, 530 U.S. 27 (2000).

205 E.g., Marchetti v. United States, 390 U.S. 39 (1968) (criminal penalties attached to failure to register and make incriminating admissions); Malloy v. Hogan,

378 U.S. 1 (1964) (contempt citation on refusal to testify). See also South Dakota v.

Neville, 459 U.S. 553 (1983) (no compulsion in introducing evidence of suspect’s refusal to submit to blood alcohol test, since state could have forced suspect to take

test and need not have offered him a choice); Selective Service System v. Minnesota

PIRG, 468 U.S. 841 (1984) (no coercion in requirement that applicants for federal

financial assistance for higher education reveal whether they have registered for draft).

206 Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v. Broderick, 392 U.S.

273 (1968); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S.

280 (1968). See also Lefkowitz v. Turley, 414 U.S. 70 (1973), holding unconstitutional state statutes requiring the disqualification for five years of contractors doing

business with the state if at any time they refused to waive immunity and answer

questions respecting their transactions with the state. The state may require employees or contractors to respond to inquiries, but only if it offers them immunity sufficient to supplant the privilege against self-incrimination. See also Lefkowitz v. Cunningham, 431 U.S. 801 (1977).

207 Spevack v. Klein, 385 U.S. 511 (1967).

208 McKune v. Lile, 536 U.S. 24 (2002). The transfer was mandated for refusal

to participate in a sexual abuse treatment program that required revelation of sexual

history and admission of responsibility. The plurality declared that rehabilitation

programs are permissible if the adverse consequences for non-participation are “related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.” 536 U.S. at 38 (opinion of

Justice Kennedy). Concurring Justice O’Connor stated her belief that the “minor”

change in living conditions seemed “very unlikely to actually compel [the prisoner]

to [participate].” Id. at 51.

209 See, in addition to McKune v. Lile, Baxter v. Palmigiano, 425 U.S. 308 (1976)

(adverse inference from inmate’s silence at prison disciplinary hearing); and Ohio

Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (adverse inference from

inmate’s silence at clemency hearing).

210 Minnesota v. Murphy, 465 U.S. 420 (1984) (the possibility of revocation of

probation was not so coercive as to compel a probationer to provide incriminating

answers to probation officer’s questions).

1504 AMENDMENT 5—RIGHTS OF PERSONS
has not developed a clear doctrinal explanation to identify the differences between permissible and impermissible coercion.211

It has long been the rule that a defendant who takes the stand

on his own behalf does so voluntarily, and cannot then claim the

privilege to defeat cross-examination on matters reasonably related

to the subject matter of his direct examination,212 and that such a

defendant may be impeached by proof of prior convictions.213 But,

in Griffin v. California,

214 the Court refused to permit prosecutorial

or judicial comment to the jury upon a defendant’s refusal to take

the stand on his own behalf, because such comment was a “penalty

imposed by courts for exercising a constitutional privilege” and “[i]t

cuts down on the privilege by making its assertion costly.” 215 Prosecutors’ comments violating the Griffin rule can nonetheless constitute harmless error.216 Nor may a prosecutor impeach a defendant’s trial testimony through use of the fact that upon his arrest

and receipt of a Miranda warning he remained silent and did not

give the police the exculpatory story he told at trial.217 But where

the defendant took the stand and testified, the Court permitted the

211 The Court in McKune v. Lile split 5-to-4, with no opinion of the Court.

212 Brown v. Walker, 161 U.S. 591, 597–98 (1896); Fitzpatrick v. United States,

178 U.S. 304, 314–16 (1900); Brown v. United States, 356 U.S. 148 (1958). See also

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (testimony at a clemency interview is voluntary, and cannot be compelled).

213 Spencer v. Texas, 385 U.S. 554, 561 (1967); cf. Michelson v. United States,

335 U.S. 469 (1948).

214 380 U.S. 609, 614 (1965). The result had been achieved in federal court through

statutory enactment. 18 U.S.C. § 3481. See Wilson v. United States, 149 U.S. 60 (1893).

In Carter v. Kentucky, 450 U.S. 288 (1981), the Court held that the SelfIncrimination Clause required a state, upon defendant’s request, to give a cautionary instruction to the jurors that they must disregard defendant’s failure to testify

and not draw any adverse inferences from it. This result, too, had been accomplished in the federal courts through statutory construction. Bruno v. United States,

308 U.S. 287 (1939). In Lakeside v. Oregon, 435 U.S. 333 (1978), the Court held

that a court may give such an instruction, even over defendant’s objection. Carter v.

Kentucky was applied in James v. Kentucky, 466 U.S. 341 (1983) (request for jury

“admonition” sufficient to invoke right to “instruction”).

215 Although the Griffin rule continues to apply when the prosecutor on his own

initiative asks the jury to draw an adverse inference from a defendant’s silence, it

does not apply to a prosecutor’s “fair response” to a defense counsel’s allegation that

the government had denied his client the opportunity to explain his actions. United

States v. Robinson, 485 U.S. 25, 32 (1988).

216 Chapman v. California, 386 U.S. 18 (1967); United States v. Hasting, 461

U.S. 499 (1983).

217 Doyle v. Ohio, 426 U.S. 610 (1976). Post-arrest silence, the Court stated, is

inherently ambiguous, and to permit use of the silence would be unfair since the

Miranda warning told the defendant he could be silent. The same result had earlier

been achieved under the Court’s supervisory power over federal trials in United States

v. Hale, 422 U.S. 171 (1975). The same principles apply to bar a prosecutor’s use of

Miranda silence as evidence of an arrestee’s sanity. Wainwright v. Greenfield, 474

U.S. 284 (1986). In determining whether a state prisoner is entitled to federal habeas corpus relief because the prosecution violated due process by using his postMiranda silence for impeachment purposes at trial, the proper standard for harmlessAMENDMENT 5—RIGHTS OF PERSONS 1505
impeachment use of his pre-arrest silence when that silence had in

no way been officially encouraged, through a Miranda warning or

otherwise.218

Further, the Court held inadmissible at the subsequent trial a

defendant’s testimony at a hearing to suppress evidence wrongfully

seized, because use of the testimony would put the defendant to an

impermissible choice between asserting his right to remain silent

and invoking his right to be free of illegal searches and seizures.219

The Court also proscribed the introduction at a second trial of the

defendant’s testimony at his first trial, given to rebut a confession

which was subsequently held inadmissible, since the testimony was

in effect “fruit of the poisonous tree,” and had been “coerced” from

the defendant through use of the confession.220 Potentially most farreaching was a holding that invalidated the penalty structure of a

statute under which defendants could escape a possible death sentence by entering a guilty plea; the statute “needlessly encourage[d]” waivers of defendant’s Fifth Amendment right to plead not

guilty and his Sixth Amendment right to a jury trial.221

Although this “needless encouragement” test assessed the nature of the choice required to be made by defendants against the

strength of the governmental interest in the system requiring the

choice, the Court soon developed another test stressing the voluntariness of the choice. A guilty plea entered by a defendant who correctly understands the consequences of the plea is voluntary unless coerced or obtained under false pretenses; moreover, there is

no impermissible coercion where the defendant has the effective assistance of counsel.222 The Court in an opinion by Justice Harlan

then formulated still another test in holding that a defendant in a

error review is that announced in Kotteakos v. United States, 328 U.S. 750, 776

(1946)—whether the due process error had substantial and injurious effect or influence in determining the jury’s verdict—not the stricter “harmless beyond a reasonable doubt” standard of Chapman v. California, 386 U.S. 18, 24 (1967), applicable

on direct review. Brecht v. Abrahamson, 507 U.S. 619 (1993). See also Fry v. Pliler,

551 U.S. 112, 114 (2007) (the “substantial and injurious effect” standard is to be

applied in federal habeas proceedings even “when the state appellate court failed to

recognize the error and did not review it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman v. California”).

218 Jenkins v. Anderson, 447 U.S. 231 (1980). Cf. Baxter v. Palmigiano, 425 U.S.

308 (1976) (prison disciplinary hearing may draw adverse inferences from inmate’s

assertion of privilege so long as this was not the sole basis of decision against him).

219 Simmons v. United States, 390 U.S. 377 (1968). The rationale of the case

was subsequently limited to Fourth Amendment grounds in McGautha v. California,

402 U.S. 183, 210–13 (1971).

220 Harrison v. United States, 392 U.S. 219 (1968).

221 Jackson v. United States, 390 U.S. 570, 583 (1968).

222 Parker v. North Carolina, 397 U.S. 790 (1970); Brady v. United States, 397

U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970). Parker and Brady entered guilty pleas to avoid the death penalty when it became clear that the prosecu1506 AMENDMENT 5—RIGHTS OF PERSONS
capital case in which the jury in one process decides both guilt and

sentence could be put to a choice between remaining silent on guilt

or admitting guilt and being able to put on evidence designed to

mitigate the possible sentence. The pressure to take the stand in

response to the sentencing issue, said the Court, was not so great

as to impair the policies underlying the Self-Incrimination Clause,

policies described in this instance as proscription of coercion and of

cruelty in putting the defendant to an undeniably “hard” choice.223

Similarly, the Court held that requiring a defendant to give notice

to the prosecution before trial of his intention to rely on an alibi

defense and to give the names and addresses of witnesses who will

support it does not violate the clause.224 Nor does it violate a defendant’s self-incrimination privilege to create a presumption upon the

establishment of certain basic facts from which the jury may infer

the defendant’s guilt unless he rebuts the presumption.225

The obligation to testify is not relieved by this clause, if, regardless of whether incriminating answers are given, a prosecution is

tion had solid evidence of their guilt; Richardson pled guilty because of his fear that

an allegedly coerced confession would be introduced into evidence.

223 McGautha v. California, 402 U.S. 183, 210–20 (1971). When the Court subsequently required bifurcated trials in capital cases, it was on the basis of the Eighth

Amendment, and represented no withdrawal from the position described here. Cf.

Corbitt v. New Jersey, 439 U.S. 212 (1978); Bordenkircher v. Hayes, 434 U.S. 357

(1978).

224 Williams v. Florida, 399 U.S. 78, 80–86 (1970). The compulsion of choice, Justice White argued for the Court, proceeded from the strength of the state’s case and

not from the disclosure requirement. That is, the rule did not affect whether or not

the defendant chose to make an alibi defense and to call witnesses, but merely required him to accelerate the timing. It appears, however, that in Brooks v. Tennessee, 406 U.S. 605 (1972), the Court used the “needless encouragement” test in striking down a state rule requiring the defendant to testify before any other defense

witness or to forfeit the right to testify at all. In the Court’s view, this impermissibly burdened the defendant’s choice whether to testify or not. Another prosecution

discovery effort was approved in United States v. Nobles, 422 U.S. 233 (1975), in

which a defense investigator’s notes of interviews with prosecution witnesses were

ordered disclosed to the prosecutor for use in cross-examination of the investigator.

The Court discerned no compulsion upon defendant to incriminate himself.

225 “The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation

were made by the evidence. The necessity of an explanation by the accused would

be quite as compelling in that case as in this; but the constraint upon him to give

testimony would arise there, as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.” Yee

Hem v. United States, 268 U.S. 178, 185 (1925), quoted with approval in Turner v.

United States, 396 U.S. 398, 418 n.35 (1970). Justices Black and Douglas dissented

on self-incrimination grounds. Id. at 425. See also United States v. Gainey, 380 U.S.

63, 71, 74 (1965) (dissenting opinions). For due process limitations on such presumptions, see discussion under the Fourteenth Amendment, “Proof, Burden of Proof, and

Presumptions,” infra.

AMENDMENT 5—RIGHTS OF PERSONS 1507
precluded,226 or if the result of the answers is not incrimination,

but rather harm to reputation or exposure to infamy or disgrace.227

The clause does not prevent a public employer from discharging an

employee who, in an investigation specifically and narrowly directed at the performance of the employee’s official duties, refuses

to cooperate and to provide the employer with the desired information on grounds of self-incrimination.228 But it is unclear under what

other circumstances a public employer may discharge an employee

who has claimed his privilege before another investigating agency.229

Finally, the rules established by the clause and the judicial interpretations apply against the states to the same degree that they

apply against the Federal Government,230 and neither sovereign can

compel discriminatory admissions that would incriminate the person in the other jurisdiction.231 There is no “cooperative internationalism” that parallels the cooperative federalism and cooperative pros226 Prosecution may be precluded by tender of immunity (see next topic for discussion of immunity), or by pardon, Brown v. Walker, 161 U.S. 591, 598–99 (1896).

The effect of a mere tender of pardon by the President remains uncertain. Cf. Burdick

v. United States, 236 U.S. 79 (1915) (acceptance necessary, and self-incrimination is

possible in absence of acceptance); Biddle v. Perovich, 274 U.S. 480 (1927) (acceptance not necessary to validate commutation of death sentence to life imprisonment).

227 Brown v. Walker, 161 U.S. 591, 605–06 (1896); Ullmann v. United States,

350 U.S. 422, 430–31 (1956). Minorities in both cases had contended for a broader

rule. Walker, 161 U.S. at 631 (Justice Field dissenting); Ullmann, 350 U.S. at 454

(Justice Douglas dissenting).

228 Gardner v. Broderick, 392 U.S. 273, 278 (1968). Testimony compelled under

such circumstances is, even in the absence of statutory immunity, barred from use

in a subsequent criminal trial by force of the Fifth Amendment itself. Garrity v. New

Jersey, 385 U.S. 493 (1967). However, unlike public employees, persons subject to

professional licensing by government appear to be able to assert their privilege and

retain their licenses. Cf. Spevack v. Klein, 385 U.S. 511 (1967) (lawyer may not be

disbarred solely because he refused on self-incrimination grounds to testify at a disciplinary proceeding), approved in Gardner v. Broderick, 392 U.S. at 277–78. Justices Harlan, Clark, Stewart, and White dissented generally. 385 U.S. 500, 520, 530.

229 See Slochower v. Board of Higher Education, 350 U.S. 551 (1956), limited by

Lerner v. Casey, 357 U.S. 468 (1958), and Nelson v. County of Los Angeles, 362 U.S.

1 (1960), which were in turn apparently limited by Garrity and Gardner.

230 Malloy v. Hogan, 378 U.S. 1 (1964) (overruling Twining v. New Jersey, 211

U.S. 78 (1908), and Adamson v. California, 332 U.S. 46 (1947)).

231 Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964), (overruling United States

v. Murdock, 284 U.S. 141 (1931) (Federal Government could compel a witness to

give testimony that might incriminate him under state law), Knapp v. Schweitzer,

357 U.S. 371 (1958) (state may compel a witness to give testimony that might incriminate him under federal law), and Feldman v. United States, 322 U.S. 487 (1944)

(testimony compelled by a state may be introduced into evidence in the federal courts)).

Murphy held that a state could compel testimony under a grant of immunity but

that, because the state could not extend the immunity to federal courts, the Supreme Court would not permit the introduction of evidence into federal courts that

had been compelled by a state or that had been discovered because of state compelled testimony. The result was apparently a constitutionally compelled one arising

from the Fifth Amendment itself, 378 U.S. at 75–80, rather than one taken pursuant to the Court’s supervisory power as Justice Harlan would have preferred. Id. at

1508 AMENDMENT 5—RIGHTS OF PERSONS
ecution on which application against states is premised, and

consequently concern with foreign prosecution is beyond the scope

of the Self-Incrimination Clause.232

The Power To Compel Testimony and Disclosure

Immunity.—“Immunity statutes, which have historical roots deep

in Anglo-American jurisprudence, are not incompatible [with the values of the Self-Incrimination Clause]. Rather they seek a rational

accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The

existence of these statutes reflects the importance of testimony, and

the fact that many offenses are of such a character that the only

persons capable of giving useful testimony are those implicated in

the crime.” 233 Apparently the first immunity statute was enacted

by Parliament in 1710 234 and it was widely copied in the colonies.

The first federal immunity statute was enacted in 1857, and immunized any person who testified before a congressional committee from

prosecution for any matter “touching which” he had testified.235

Revised in 1862 so as merely to prevent the use of the congressional testimony at a subsequent prosecution of any congressional

witness,236 the statute was soon rendered unenforceable by the ruling in Counselman v. Hitchcock 237 that an analogous limited immunity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. Counselman was

ambiguous with regard to its grounds because it identified two faults

in the statute: it did not proscribe “derivative” evidence 238 and it

80 (concurring). Congress has power to confer immunity in state courts as well as

in federal in order to elicit information, Adams v. Maryland, 347 U.S. 179 (1954),

but whether Congress must do so or whether the immunity would be conferred simply through the act of compelling the testimony Murphy did not say.

Whether testimony could be compelled by either the Federal Government or a

state that could incriminate a witness in a foreign jurisdiction is unsettled. See Zicarelli

v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 480, 481 (1972) (reserving question), but an affirmative answer seems unlikely. Cf. Murphy, 378 U.S. at

58–63, 77.

232 United States v. Balsys, 524 U.S. 666 (1998).

233 Kastigar v. United States, 406 U.S. 441, 445–46 (1972). It has been held that

the Fifth Amendment itself precludes the use as criminal evidence of compelled admissions, Garrity v. New Jersey, 385 U.S. 493 (1967), but this case and dicta in

others is unreconciled with the cases that find that one may “waive” though inadvertently the privilege and be required to testify and incriminate oneself. Rogers v. United

States, 340 U.S. 367 (1951).

234 9 Anne, c. 14, 3–4 (1710). See Kastigar v. United States, 406 U.S. 441, 445

n.13 (1972).

235 Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed

while testifying before Congress.

236 Ch. 11, 12 Stat. 333 (1862).

237 142 U.S. 547 (1892). The statute struck down was ch. 13, 15 Stat. 37 (1868).

238 Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). See also id. at 586.

AMENDMENT 5—RIGHTS OF PERSONS 1509
prohibited only future use of the compelled testimony.239 The latter

language accentuated a division between adherents of “transactional” immunity and of “use” immunity which has continued to the

present.240 In any event, following Counselman, Congress enacted

a statute that conferred transactional immunity as the price for being able to compel testimony,241 and the Court sustained this law

in a five-to-four decision.242

“The 1893 statute has become part of our constitutional fabric

and has been included ‘in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government.’ ” 243 So spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker and upholding the constitutionality of a federal

immunity statute.244 Because all but one of the immunity acts passed

after Brown v. Walker were transactional immunity statutes,245 the

question of the constitutional sufficiency of use immunity did not

arise, although dicta in cases dealing with immunity continued to

239 142 U.S. at 585–86.

240 “Transactional” immunity means that once a witness has been compelled to

testify about an offense, he may never be prosecuted for that offense, no matter how

much independent evidence might come to light; “use” immunity means that no testimony compelled to be given and no evidence derived from or obtained because of

the compelled testimony may be used if the person is subsequently prosecuted on

independent evidence for the offense.

241 Ch. 83, 27 Stat. 443 (1893).

242 Brown v. Walker, 161 U.S. 591 (1896). The majority reasoned that one was

excused from testifying only if there could be legal detriment flowing from his act of

testifying. If a statute of limitations had run or if a pardon had been issued with

regard to a particular offense, a witness could not claim the privilege and refuse to

testify, no matter how much other detriment, such as loss of reputation, would attach to his admissions. Therefore, because the statute acted as a pardon or amnesty

and relieved the witness of all legal detriment, he must testify. The four dissenters

contended essentially that the privilege protected against being compelled to incriminate oneself regardless of any subsequent prosecutorial effort, id. at 610, and that a

witness was protected against infamy and disparagement as much as prosecution.

Id. at 628.

243 Ullmann v. United States, 350 U.S. 422, 438 (1956) (quoting Shapiro v. United

States, 335 U.S. 1, 6 (1948)).

244 “[The] sole concern [of the privilege] is . . . with the danger to a witness forced

to give testimony leading to the infliction of ‘penalties affixed to the criminal acts’. . . .

Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases.” 350 U.S. at 438–39. The internal quotation is from Boyd v. United States,

116 U.S. 616, 634 (1886).

245 Kastigar v. United States, 406 U.S. 441, 457–58 (1972); Piccirillo v. New York,

400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. § 25(a)(10),

repealed by 84 Stat. 931 (1970). The right of a bankrupt to insist on his privilege

against self-incrimination as against this statute was recognized in McCarthy v.

Arndstein, 266 U.S. 34, 42 (1924), “because the present statute fails to afford complete immunity from a prosecution.” The statute also failed to prohibit the use of

derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920).

1510 AMENDMENT 5—RIGHTS OF PERSONS
assert the necessity of the former type of grant.246 But, beginning

in 1964, when it applied the Self-Incrimination Clause to the states,

the Court was faced with the problem that arose because a state

could grant immunity only in its own courts and not in the courts

of another state or of the United States.247 On the other hand, to

foreclose the states from compelling testimony because they could

not immunize a witness in a subsequent “foreign” prosecution would

severely limit state law enforcement efforts. Therefore, the Court

emphasized the “use” restriction rationale of Counselman and announced that as a “constitutional rule, a state witness could not be

compelled to incriminate himself under federal law unless federal

authorities were precluded from using either his testimony or evidence derived from it,” and thus formulated a use restriction to that

effect.248 Then, while refusing to adopt the course because of statutory interpretation reasons, the Court indicated that use restriction in a federal regulatory scheme requiring the reporting of incriminating information was “in principle an attractive and apparently

practical resolution of the difficult problem before us,” citing Murphy with apparent approval.249

Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only.250 Soon

tested, this statute was sustained in Kastigar v. United States.

251

“[P]rotection coextensive with the privilege is the degree of protection which the Constitution requires,” wrote Justice Powell for the

246 E.g., Hale v. Henkel, 201 U.S. 43, 67 (1906); United States v. Monia, 317

U.S. 424, 425, 428 (1943); Smith v. United States, 337 U.S. 137, 141, 146 (1949);

United States v. Murdock, 284 U.S. 141, 149 (1931); Adams v. Maryland, 347 U.S.

179, 182 (1954). In Ullmann v. United States, 350 U.S. 422, 436–37 (1956), Justice

Frankfurter described the holding of Counselman as relating to the absence of a

prohibition on the use of derivative evidence.

247 Malloy v. Hogan, 378 U.S. 1 (1964), extended the clause to the states. That

Congress could immunize a federal witness from state prosecution and, of course,

extend use immunity to state courts, was held in Adams v. Maryland, 347 U.S. 179

(1954), and had been recognized in Brown v. Walker, 161 U.S. 591 (1896).

248 Murphy v. Waterfront Comm’n, 378 U.S. 52, 77–99 (1964). Concurring, Justices White and Stewart argued at length in support of the constitutional sufficiency

of use immunity and the lack of a constitutional requirement of transactional immunity. Id. at 92. See also Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968); Garrity v. New

Jersey, 385 U.S. 493 (1967), recognizing the propriety of compelling testimony with

a use restriction attached.

249 Marchetti v. United States, 390 U.S. 39, 58 (1968).

250 Organized Crime Control Act of 1970, Pub. L. 91–452, § 201(a), 84 Stat. 922,

18 U.S.C. §§ 6002–6003. Justice Department officials have the authority under the

Act to decide whether to seek immunity, and courts will not apply “constructive”

use immunity absent compliance with the statute’s procedures. United States v. Doe,

465 U.S. 605 (1984).

251 406 U.S. 441 (1972). A similar state statute was sustained in Zicarelli v. New

Jersey State Comm’n of Investigation, 406 U.S. 472 (1972).

AMENDMENT 5—RIGHTS OF PERSONS 1511
Court, “and is all that the Constitution requires. . . .” 252 “Transactional immunity, which accords full immunity from prosecution for

the offense to which the compelled testimony relates, affords the

witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that

one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being ‘forced to give testimony

leading to the infliction of penalties affixed to . . . criminal acts.’

Immunity from the use of compelled testimony and evidence derived directly and indirectly therefrom affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony

cannot lead to the infliction of criminal penalties on the witness.” 253

Required Records Doctrine.—Although the privilege is applicable to an individual’s papers and effects,254 it does not extend to

corporate persons; hence corporate records, as has been noted, are

subject to compelled production.255 In fact, however, the Court has

greatly narrowed the protection afforded in this area to natural persons by developing the “required records” doctrine. That is, it has

held “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 en252 Kastigar v. United States, 406 U.S. 441, 459 (1972). See also United States

v. Hubbell, 530 U.S. 27 (2000) (because the statute protects against derivative use

of compelled testimony, a prosecution cannot be based on incriminating evidence revealed only as the result of compliance with an extremely broad subpoena).

253 406 U.S. at 453. Joining Justice Powell in the opinion were Justices Stewart, White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dissented, contending that a ban on use could not be enforced even if a use

ban was constitutionally adequate. Id. at 462, 467. Justices Brennan and Rehnquist

did not participate but Justice Brennan’s views that transactional immunity was

required had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971)

(dissenting). See also New Jersey v. Portash, 440 U.S. 451 (1979) (prosecution use of

defendant’s immunized testimony to impeach him at trial violates SelfIncrimination Clause). Neither the clause nor the statute prevents the perjury prosecution of an immunized witness or the use of all his testimony to prove the commission of perjury. United States v. Apfelbaum, 445 U.S. 115 (1980). See also United

States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564 (1976).

Because use immunity is limited, a witness granted use immunity for grand jury

testimony may validly invoke his Fifth Amendment privilege in a civil deposition

proceeding when asked whether he had “so testified” previously, the deposition testimony not being covered by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S.

248 (1983).

254 Boyd v. United States, 116 U.S. 616 (1886). But see Fisher v. United States,

425 U.S. 391 (1976).

255 See discussion, supra, under “Development and Scope.”

1512 AMENDMENT 5—RIGHTS OF PERSONS
forcement of restrictions validly established.’ ” 256 This exception developed out of, as Justice Frankfurter showed in dissent, the rule

that documents which are part of the official records of government

are wholly outside the scope of the privilege; public records are the

property of government and are always accessible to inspection. Because government requires certain records to be kept to facilitate

the regulation of the business being conducted, so the reasoning goes,

the records become public at least to the degree that government

could always scrutinize them without hindrance from the recordkeeper. “If records merely because required to be kept by law ipso

facto become public records, we are indeed living in glass houses.

Virtually every major public law enactment—to say nothing of State

and local legislation—has record-keeping provisions. In addition to

record-keeping requirements, is the network of provisions for filing

reports. Exhaustive efforts would be needed to track down all the

statutory authority, let alone the administrative regulations, for recordkeeping and reporting requirements. Unquestionably they are enormous in volume.” 257

“It may be assumed at the outset that there are limits which

the government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency

and may be used in prosecuting statutory violations committed by

the record-keeper himself.” 258 But the only limit that the Court suggested in Shapiro was that there must be “a sufficient relation between the activity sought to be regulated and the public concern so

that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping

of particular records, subject to inspection by the Administrator.” 259 That there are limits established by the Self-Incrimination

Clause itself rather than by a subject matter jurisdiction test is evident in the Court’s consideration of reporting and disclosure requirements implicating but not directly involving the required-records doctrine.

256 Shapiro v. United States, 335 U.S. 1, 33 (1948) (quoting Davis v. United States,

328 U.S. 582, 589–90 (1946), which quoted Wilson v. United States, 221 U.S. 361,

380 (1911)). Dicta in Wilson is the source of the required-records doctrine, the holding of the case being the familiar one that a corporate officer cannot claim the privilege against self-incrimination to refuse to surrender corporate records in his custody. Cf. Heike v. United States, 227 U.S. 131 (1913). Davis was a search and seizure

case and dealt with gasoline ration coupons which were government property even

though in private possession. See Shapiro, 335 U.S. at 36, 56–70 (Justice Frankfurter dissenting).

257 335 U.S. at 51.

258 335 U.S. at 32.

259 335 U.S. at 32.

AMENDMENT 5—RIGHTS OF PERSONS 1513
Reporting and Disclosure.—The line of cases begins with United

States v. Sullivan,

260 in which a unanimous Court held that the Fifth

Amendment did not privilege a bootlegger in not filing an income

tax return because the filing would have disclosed the illegality in

which he was engaged. “It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized

a man to refuse to state the amount of his income because it had

been made in crime,” Justice Holmes stated for the Court.261 However, “[i]f the form of return provided called for answers that the

defendant was privileged from making he could have raised the objection in the return . . . .” 262 Using its taxing power to reach gambling activities over which it might otherwise not have had jurisdiction,263 Congress enacted a complicated statute imposing an annual

occupational tax on gamblers and an excise tax on all their wages,

and coupled the tax with an annual registration requirement under which each gambler must file with the IRS a declaration of his

business with identification of his place of business and his employees and agents, filings which were made available to state and local law enforcement agencies. These requirements were upheld by

the Court against self-incrimination challenges on the three grounds

that (1) the privilege did not excuse a complete failure to file, (2)

because the threshold decision to gamble was voluntary, the required disclosures were not compulsory, and (3) because registration required disclosure only of prospective conduct, the privilege,

limited to past or present acts, did not apply.264

Constitutional limitations appeared, however, in Albertson v.

SACB,

265 which struck down under the Self-Incrimination Clause

an order pursuant to statute requiring registration by individual

members of the Communist Party or associated organizations. “In

260 274 U.S. 259, 263, 264 (1927). Sullivan was reaffirmed in Garner v. United

States, 424 U.S. 648 (1976), holding that a taxpayer’s privilege against selfincrimination was not violated when he failed to claim his privilege on his tax returns, and instead gave incriminating information leading to conviction. One must

assert one’s privilege to alert the government to the possibility that it is seeking to

obtain incriminating material. It is not coercion forbidden by the clause that upon a

claim of the privilege the government could seek an indictment for failure to file,

since a valid claim of privilege cannot be the basis of a conviction. The taxpayer

was not entitled to a judicial ruling on the validity of his claim and an opportunity

to reconsider if the ruling went against him, regardless of whether a good-faith erroneous assertion of the privilege could subject him to prosecution, a question not

resolved.

261 274 U.S. at 263–64.

262 274 U.S. at 263.

263 The expansion of the commerce power would now obviate reliance on the

taxing power.

264 United States v. Kahriger, 345 U.S. 22 (1953); Lewis v. United States, 348

U.S. 419 (1955).

265 382 U.S. 70 (1965).

1514 AMENDMENT 5—RIGHTS OF PERSONS
Sullivan the questions in the income tax return were neutral on

their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners’ claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in

an area permeated with criminal statutes, where response to any

of the form’s questions in context might involve the petitioners in

the admission of a crucial element of a crime.” 266

The gambling tax reporting scheme was next struck down by

the Court.267 Because of the pervasiveness of state laws prohibiting

gambling, said Justice Harlan for the Court, “the obligations to register and to pay the occupational tax created for petitioner ‘real and

appreciable,’ and not merely ‘imaginary and unsubstantial,’ hazards of self-incrimination.” 268 Overruling Kahriger and Lewis, the

Court rejected its earlier rationales. Registering per se would have

exposed a gambler to dangers of state prosecution, so Sullivan did

not apply.269 Any contention that the voluntary engagement in gambling “waived” the self-incrimination claim, because there is “no constitutional right to gamble,” would nullify the privilege.270 And the

privilege was not governed by a “rigid chronological distinction” so

that it protected only past or present conduct, but also reached fu266 382 U.S. at 79. The decision was unanimous, with Justice White not participating. The same issue had been held not ripe for adjudication in Communist Party

v. SACB, 367 U.S. 1, 105–10 (1961).

267 Marchetti v. United States, 390 U.S. 39 (1968) (occupational tax); Grosso v.

United States, 390 U.S. 62 (1968) (wagering excise tax). In Haynes v. United States,

390 U.S. 85 (1968), the Court struck down a requirement that one register a firearm that it was illegal to possess. The following Term on the same grounds the Court

voided a statute prohibiting the possession of marijuana without having paid a transfer tax and registering. Leary v. United States, 395 U.S. 6 (1969); United States v.

Covington, 395 U.S. 57 (1969). However, a statute was upheld which prohibited the

sale of narcotics to a person who did not have a written order on a prescribed form,

since the requirement caused the self-incrimination of the buyer but not the seller,

the Court viewing the statute as actually a flat proscription on sale rather than a

regulatory measure. Minor v. United States, 396 U.S. 87 (1969). The congressional

response was reenactment of the requirements, coupled with use immunity. United

States v. Freed, 401 U.S. 601 (1971).

268 Marchetti v. United States, 390 U.S. 39, 48 (1968).

269 “Every element of these requirements would have served to incriminate petitioners; to have required him to present his claim to Treasury officers would have

obliged him ‘to prove guilt to avoid admitting it.’ ” 390 U.S. at 50.

270 “The question is not whether petitioner holds a ‘right’ to violate state law,

but whether, having done so, he may be compelled to give evidence against himself.

The constitutional privilege was intended to shield the guilty and imprudent as well

as the innocent and foresighted; if such an inference of antecedent choice were alone

enough to abrogate the privilege’s protection, it would be excluded from the situations in which it has historically been guaranteed, and withheld from those who

most require it.” 390 U.S. at 51. But cf. California v. Byers, 402 U.S. 424, 434 (1971)

(plurality opinion), in which it is suggested that because there is no “right” to leave

the scene of an accident a requirement that a person involved in an accident stop

and identify himself does not violate the Self-Incrimination Clause.

AMENDMENT 5—RIGHTS OF PERSONS 1515
ture self-incrimination the danger of which is not speculative and

insubstantial.271 Significantly, then, Justice Harlan turned to distinguishing the statutory requirements here from the “required records” doctrine of Shapiro. “First, petitioner . . . was not . . . obliged

to keep and preserve records ‘of the same kind as he has customarily kept’; he was required simply to provide information, unrelated

to any records which he may have maintained, about his wagering

activities. This requirement is not significantly different from a demand that he provide oral testimony . . . . Second, whatever ‘public aspects’ there were to the records at issue in Shapiro, there are

none to the information demanded from Marchetti. The Government’s anxiety to obtain information known to a private individual

does not without more render that information public; if it did, no

room would remain for the application of the constitutional privilege. Nor does it stamp information with a public character that

the government has formalized its demands in the attire of a statute; if this alone were sufficient, the constitutional privilege could

be entirely abrogated by any Act of Congress. Third, the requirements at issue in Shapiro were imposed in ‘an essentially noncriminal and regulatory area of inquiry’ while those here are directed to a ‘selective group inherently suspect of criminal activities.’

. . . The United States’ principal interest is evidently the collection

of revenue, and not the punishment of gamblers, . . . but the characteristics of the activities about which information is sought, and

the composition of the groups to which inquiries are made, readily

distinguish this situation from that in Shapiro.” 272

Most recent in this line of cases is California v. Byers,

273 which

indicates that the Court has yet to settle on an ascertainable standard for judging self-incrimination claims in cases where government is asserting an interest other than criminal law enforcement.

Byers sustained the constitutionality of a statute which required the

driver of any automobile involved in an accident to stop and give

his name and address. The state court had held that a driver who

reasonably believed that compliance with the statute would result

in self-incrimination could refuse to comply. A plurality of the Court,

however, determined that Sullivan and Shapiro applied and not the

271 Marchetti v. United States, 390 U.S. 39, 52–54 (1968). “The central standard

for the privilege’s application has been whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination

. . . . This principle does not permit the rigid chronological distinctions adopted in

Kahriger and Lewis. We see no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence.” Id. at 53–54. Cf. United

States v. Freed, 401 U.S. 601, 605–07 (1971).

272 Marchetti v. United States, 390 U.S. 39, 57 (1968).

273 402 U.S. 424 (1971).

1516 AMENDMENT 5—RIGHTS OF PERSONS
Albertson-Marchetti line of cases, because the purpose of the statute was to promote the satisfaction of civil liabilities resulting from

automobile accidents and not criminal prosecutions, and because the

statute was directed to all drivers and not to a group which was

either “highly selective” or “inherently suspect of criminal activities.” The combination of a noncriminal motive with the general character of the requirement made too slight for reliance the possibility

of incrimination.274 Justice Harlan concurred to make up the majority on the disposition of the case, disagreeing with the plurality’s

conclusion that the stop and identification requirement did not compel incrimination.275 However, the Justice thought that, where there

is no governmental purpose to enforce a criminal law and instead

government is pursuing other legitimate regulatory interests, it is

permissible to apply a balancing test between the government’s interest and the individual’s interest. When he balanced the interests protected by the Amendment—protection of privacy and maintenance of an accusatorial system—with the noncriminal purpose,

the necessity for self-reporting as a means of securing information,

and the nature of the disclosures required, Justice Harlan voted to

sustain the statute.276 Byers was applied in Baltimore Dep’t of Social Services v. Bouknight 277 to uphold a juvenile court’s order that

the mother of a child under the court’s supervision produce the child.

Although in this case the mother was suspected of having abused

or murdered her child, the order was justified out of concern for

the child’s safety—a “compelling reason[ ] unrelated to criminal law

274 402 U.S. at 427–31 (Chief Justice Burger and Justices Stewart, White, and

Blackmun).

275 “The California Supreme Court was surely correct in considering that the

decisions of this Court have made it clear that invocation of the privilege is not limited to situations where the purpose of the inquiry is to get an incriminating answer. . . . [I]t must be recognized that a reading of our more recent cases . . . suggests the conclusion that the applicability of the privilege depends exclusively on a

determination that, from the individual’s point of view, there are ‘real’ and not ‘imaginary’ risks of self-incrimination in yielding to state compulsion. Thus, Marchetti and

Grosso . . . start from an assumption of a non-prosecutorial governmental purpose

in the decision to tax gambling revenue; those cases go on to apply what in another

context I have called the ‘real danger v. imaginary possibility standard’ . . . . A judicial tribunal whose position with respect to the elaboration of constitutional doctrine is subordinate to that of this Court certainly cannot be faulted for reading

these opinions as indicating that the ‘inherently-suspect-class’ factor is relevant only

as an indicium of genuine incriminating risk as assessed from the individual’s point

of view.” 402 U.S. at 437–38.

276 402 U.S. at 448–58. The four dissenters argued that it was unquestionable

that Byers would have faced real risks of self-incrimination by compliance with the

statute and that this risk was sufficient to invoke the privilege. Id. at 459, 464 (Justices Black, Douglas, Brennan, and Marshall).

277 493 U.S. 549 (1990).

AMENDMENT 5—RIGHTS OF PERSONS 1517
enforcement.” 278 Moreover, because the mother had custody of her

previously abused child only as a result of the juvenile court’s order, the Court analogized to the required records cases to conclude

that the mother had submitted to the requirements of the civil regulatory regime as the child’s “custodian.”

Confessions: Police Interrogation, Due Process, and

Self-Incrimination

The Common Law Rule.—By the latter part of the eighteenth century English and early American courts had developed a

rule that coerced confessions were potentially excludable from admission at trial because they were testimonially untrustworthy.279

The Supreme Court at times continued to ground exclusion of involuntary confessions on this common law foundation of unreliability

without any mention of the constitutional bar against selfincrimination. Consider this dictum from an 1884 opinion: “[V]oluntary confession of guilt is among the most effectual proofs in the

law, . . . [b]ut the presumption upon which weight is given to such

evidence, namely, that one who is innocent will not imperil his safety

or prejudice his interests by an untrue statement, ceases when the

confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in

the presence of such person, which, operating upon the fears or hopes

of the accused, in reference to the charge, deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law.” 280 Subsequent cases followed

essentially the same line of thought.281

Then, language in the 1897 case of Bram v. United States opened

the door to eventually extending the doctrinal basis for analyzing

the admissibility of a confession beyond the common-law test that

focused on voluntariness as an indicator of the confession’s trustworthiness as evidence. “In criminal trials, in the courts of the United

278 493 U.S. at 561. By the same token, the Court concluded that the targeted

group—persons who care for children pursuant to a juvenile court’s custody order—is not a group “inherently suspect of criminal activities” in the AlbertsonMarchetti sense.

279 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 823 (3d

ed. 1940); Developments in the Law—Confessions, 79 HARV. L. REV. 935, 954–59 (1966).

280 Hopt v. Utah, 110 U.S. 574, 584–85 (1884). Utah at this time was a territory

and subject to direct federal judicial supervision.

281 Pierce v. United States, 160 U.S. 335 (1896); Sparf and Hansen v. United

States, 156 U.S. 51 (1895). In Wilson v. United States, 162 U.S. 613 (1896), failure

to provide counsel or to warn the suspect of his right to remain silent was held to

have no effect on the admissibility of a confession but was only to be considered in

assessing its credibility.

1518 AMENDMENT 5—RIGHTS OF PERSONS
States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion

of the Fifth Amendment to the Constitution of the United States,

commanding that no person ‘shall be compelled in any criminal case

to be a witness against himself.’ ” 282 However, though this approach 283 and the case itself were subsequently approved in several cases,284 the Court would still hold in 1912 that a confession

should not be excluded merely because the authorities had not warned

a suspect of his right to remain silent,285 and more than once later

opinions could doubt “whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of

the Fifth Amendment’s protection against self-incrimination, or from

a rule that forced confessions are untrustworthy. . . .” 286 One reason for this was that the Self-Incrimination Clause had not yet been

made applicable to the states, thereby requiring that the admissibility of confessions in state courts be determined under due process standards developed from common-law principles. It was only

after the Court extended the Self-Incrimination Clause to the states

that a divided Court reaffirmed and extended the 1897 Bram ruling and imposed on both federal and state trial courts new rules

for admitting or excluding confessions and other admissions made

to police during custodial interrogation.287

McNabb-Mallory Doctrine.—Perhaps one reason the Court did

not squarely confront the application of the Self-Incrimination Clause

to police interrogation and the admissibility of confessions in fed282 Bram v. United States, 168 U.S. 532, 542 (1897).

283 Ziang Sun Wan v. United States, 266 U.S. 1, 14–15 (1924). This case first

held that the circumstances of detention and interrogation were relevant and perhaps controlling on the question of admissibility of a confession.

284 Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Powers v. United States, 223

U.S. 303, 313 (1912); Shotwell Mfg. Co. v. United States, 371 U.S. 342, 347 (1963).

285 Powers v. United States, 223 U.S. 303 (1912).

286 United States v. Carignan, 342 U.S. 36, 41 (1951). See also McNabb v. United

States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 297 U.S. 278, 285 (1936);

Stein v. New York, 346 U.S. 156, 191 n.35 (1953).

287 Miranda v. Arizona, 384 U.S. 436 (1966). According to Wigmore, “there never

was any historical connection . . . between the constitutional [self-incrimination] clause

and the [common law] confession-doctrine,” 3 J. WIGMORE, A TREATISE ON THE ANGLOAMERICAN SYSTEM OF EVIDENCE § 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id. at

§ 2266 (McNaughton rev. 1961). It appears that while the two rules did develop separately—the bar against self-incrimination deriving primarily from notions of liberty

and fairness, proscriptions against involuntary confessions deriving primarily from

notions of reliability—they did stem from some of the same considerations, and, in

fact, the confession rule may be considered in important respects to be an off-shoot

of the privilege against self-incrimination. See L. LEVY, ORIGINS OF THE FIFTH AMENDMENT: THE RIGHT AGAINST SELF-INCRIMINATION 325–32, 495 n.43 (1968). See also Culombe

v. Connecticut, 367 U.S. 568, 581–84, especially 583 n.25 (1961) (Justice Frankfurter announcing judgment of the Court).

AMENDMENT 5—RIGHTS OF PERSONS 1519
eral courts was that, in McNabb v. United States,

288 it promulgated a rule excluding confessions obtained after an “unnecessary

delay” in presenting a suspect for arraignment after arrest.289 This

rule, developed pursuant to the Court’s supervisory power over the

lower federal courts 290 and hence not applicable to the states,291

was designed to implement the guarantees assured to a defendant

by the Federal Rules of Criminal Procedure,292 and was clearly informed with concern over incommunicado interrogation and coerced confessions.293 Although the Court never attempted to specify

a minimum time after which delay in presenting a suspect for arraignment could invalidate confessions, Congress in 1968 legislated to set a six-hour period for interrogation following arrest before the suspect must be presented.294 In Corley v. United States,

295

the Court held that this legislation merely limited, and did not eliminate, McNabb-Mallory’s exclusionary rule. Thus, confessions within

six hours of arrest were admissible to the extent permitted by the

statute and Rules of Evidence, whereas, “[i]f the confession occurred before presentment and beyond six hours . . . , the court must

decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession

is to be suppressed.” 296

288 318 U.S. 332 (1943). See also Anderson v. United States, 318 U.S. 350 (1943).

289 In Upshaw v. United States, 335 U.S. 410 (1948), the Court rejected lower

court interpretations that delay in arraignment was but one factor in determining

the voluntariness of a confession, and held that a confession obtained after a thirtyhour delay was inadmissible per se. Mallory v. United States, 354 U.S. 449 (1957),

held that any confession obtained during an unnecessary delay in arraignment was

inadmissible. A confession obtained during a lawful delay before arraignment was

admissible. United States v. Mitchell, 322 U.S. 65 (1944).

290 McNabb v. United States, 318 U.S. 332, 340 (1943); Upshaw v. United States,

335 U.S. 410, 414 n.2 (1948). Burns v. Wilson, 346 U.S. 137, 145 n.12 (1953), indicated that because the Court had no supervisory power over courts-martial, the rule

did not apply in military courts.

291 Gallegos v. Nebraska, 342 U.S. 55, 60, 63–64, 71–73 (1951); Stein v. New

York, 346 U.S. 156, 187–88 (1953); Culombe v. Connecticut, 367 U.S. 568, 599–602

(1961) (Justice Frankfurter announcing judgment of the Court).

292 Rule 5(a) requiring prompt arraignment was promulgated in 1946, but the

Court in McNabb relied on predecessor statutes, some of which required prompt arraignment. Cf. Mallory v. United States, 354 U.S. 449, 451–54 (1957). Rule 5(b) requires that the magistrate at arraignment must inform the suspect of the charge

against him, must warn him that what he says may be used against him, must tell

him of his right to counsel and his right to remain silent, and must also provide for

the terms of bail.

293 McNabb v. United States, 318 U.S. 332, 343 (1943); Mallory v. United States,

354 U.S. 449, 452–53 (1957).

294 The provision was part of the Omnibus Crime Control and Safe Streets Act

of 1968, 82 Stat. 210, 18 U.S.C. § 3501(c).

295 556 U.S. ___, No. 07–10441 (2009).

296 556 U.S. ___, No. 07–10441, slip op. at 18.

1520 AMENDMENT 5—RIGHTS OF PERSONS
State Confession Cases Before Miranda.—In its first encounter with a confession case arising from a state court, the Supreme

Court set aside a conviction based solely on confessions extorted

through repeated whippings with ropes and studded belts.297 For

some 30 years thereafter the Court attempted through a consideration of the “totality of the circumstances” surrounding interrogation to determine whether a confession was “voluntary” and admissible or “coerced” and inadmissible. During this time, the Court was

balancing, in Justice Frankfurter’s explication, a view that police

questioning of suspects was indispensable in solving many crimes,

on the one hand, with the conviction that the interrogation process

is not to be used to overreach persons who stand helpless before

it.298 “The ultimate test remains that which has been the only clearly

established test in Anglo-American courts for two hundred years:

the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has

willed to confess, it may be used against him. If it is not, if his will

has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” 299 Obviously, a court seeking to determine whether a confession was voluntary operated under a severe handicap, as the interrogation process

was in secret with only police and the suspect witness to it, and as

the concept of voluntariness referred to the defendant’s mental condition.300 Despite, then, a bountiful number of cases, binding precedents were few.

On the one hand, many of the early cases disclosed clear instances of coercion of a nature that the Court could little doubt pro297 Brown v. Mississippi, 297 U.S. 278 (1936). “[T]he question of the right of the

State to withdraw the privilege against self-incrimination is not here involved. The

compulsion to which the quoted statements refer is that of the processes of justice

by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter. . . . It would be difficult

to conceive of methods more revolting to the sense of justice than those taken to

procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.”

Id. at 285, 286.

298 Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961) (announcing judgment of the Court).

299 367 U.S. at 602.

300 “The inquiry whether, in a particular case, a confession was voluntarily or

involuntarily made involves, at the least, a three-phased process. First, there is the

business of finding the crude historical facts, the external ‘phenomenological’ occurrences and events surrounding the confession. Second, because the concept of ‘voluntariness’ is one which concerns a mental state, there is the imaginative recreation, largely

inferential, of internal, ‘psychological’ fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions

ordinarily characterized as rules of law but which, also, comprehend both induction

from, and anticipation of, factual circumstances.” 367 U.S. at 603. See Developments

in the Law—Confessions, 79 HARV. L. REV. 935, 973–82 (1966).

AMENDMENT 5—RIGHTS OF PERSONS 1521
duced involuntary confessions. Not only physical torture,301 but other

overtly coercive tactics as well were condemned. Chambers v. Florida302

held that five days of prolonged questioning following arrests without warrants and incommunicado detention made the subsequent

confessions involuntary. Ashcraft v. Tennessee 303 held inadmissible

a confession obtained near the end of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers. Similarly, Ward v. Texas,

304 voided a conviction based on a

confession obtained from a suspect who had been questioned continuously over the course of three days while being driven from county

to county and told falsely of a danger of lynching. “Since Chambers

v. State of Florida, . . . this Court has recognized that coercion can

be mental as well as physical and that the blood of the accused is

not the only hallmark of an unconstitutional inquisition. A number

of cases have demonstrated, if demonstrations were needed, that

the efficiency of the rack and thumbscrew can be matched, given

the proper subject, by more sophisticated modes of ‘persuasion.’ A

prolonged interrogation of the accused who is ignorant of his rights

and who has been cut off from the moral support of friends and

relatives is not infrequently an effective technique of terror.” 305

Although the Court would not hold that prolonged questioning

by itself made a resultant confession involuntary,306 it did increasingly find coercion present even in intermittent questioning over a

period of days of incommunicado detention.307 In Stein v. New York,

308

301 Brown v. Mississippi, 297 U.S. 278 (1936).

302 309 U.S. 227 (1940).

303 322 U.S. 143 (1944). Dissenting, Justices Jackson, Frankfurter, and Roberts

protested that “interrogation per se is not, while violence per se is, an outlaw.” A

confession made after interrogation was not truly “voluntary” because all questioning is “inherently coercive,” because it puts pressure upon a suspect to talk. Thus,

in evaluating a confession made after interrogation, the Court must, they insisted,

determine whether the suspect was in possession of his own will and self-control

and not look alone to the length or intensity of the interrogation. They accused the

majority of “read[ing] an indiscriminating hostility to mere interrogation into the

Constitution” and preparing to bar all confessions made after questioning. Id. at 156.

A possible result of the dissent was the decision in Lyons v. Oklahoma, 322 U.S. 596

(1944), which stressed deference to state-court factfinding in assessing the voluntariness of confessions.

304 316 U.S. 547 (1942). See also Canty v. Alabama, 309 U.S. 629 (1940); White

v. Texas, 310 U.S. 530 (1940); Lomax v. Texas, 313 U.S. 544 (1941); Vernon v. Alabama, 313 U.S. 540 (1941).

305 Blackburn v. Alabama, 361 U.S. 199, 206 (1960).

306 Lisenba v. California, 314 U.S. 219 (1941).

307 Watts v. Indiana, 338 U.S. 49 (1949) (Suspect held incommunicado without

arraignment for seven days without being advised of his rights. He was held in solitary confinement in a cell with no place to sleep but the floor and questioned each

day except Sunday by relays of police officers for periods ranging in duration from

three to nine-and-one-half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) (sus1522 AMENDMENT 5—RIGHTS OF PERSONS
however, the Court affirmed convictions of experienced criminals who

had confessed after twelve hours of intermittent questioning over a

period of thirty-two hours of incommunicado detention. Although the

questioning was less intensive than in the prior cases, Justice Jackson for the majority stressed that the correct approach was to balance “the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the

weak of will or mind might be utterly ineffective against an experienced criminal.” 309 By the time of the decision in Haynes v. Washington,

310 however, which held inadmissible a confession made by

an experienced criminal because of the “unfair and inherently coercive context” in which the confession was made, it was clear that

the Court often focused more on the nature of the coercion without

regard to the individual characteristics of the suspect.311 Nevertheless, the Court did continue to cite at times age and intelligence as

demonstrating the susceptibility of the particular suspects to even

mild coercion.312

pect held on suspicion for five days without arraignment and without being advised

of his rights. He was questioned by relays of officers for periods briefer than in Watts

during both days and nights); Harris v. South Carolina, 338 U.S. 68 (1949) (Suspect

in murder case arrested in Tennessee on theft warrant, taken to South Carolina,

and held incommunicado. He was questioned for three days for periods as long as

12 hours, not advised of his rights, not told of the murder charge, and denied access

to friends and family while being told his mother might be arrested for theft). Justice Jackson dissented in the latter two cases, willing to hold that a confession obtained under lengthy and intensive interrogation should be admitted short of a showing of violence or threats of it and especially if the truthfulness of the confession

may be corroborated by independent means. 338 U.S. at 57.

308 346 U.S. 156 (1953).

309 346 U.S. at 185.

310 373 U.S. 503 (1963) (confession obtained some 16 hours after arrest but interrogation over this period consumed little more than two hours; he was refused in

his requests to call his wife and told that his cooperation was necessary before he

could communicate with his family).

311 373 U.S. at 514. See also Spano v. New York, 360 U.S. 315 (1959). (After

eight hours of almost continuous questioning, suspect was induced to confess by rookie

policeman who was a childhood friend and who played on suspect’s sympathies by

falsely stating that his job as a policeman and the welfare of his family was at stake);

Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours

but yielded when officers threatened to bring his invalid wife to headquarters). More

recent cases include Davis v. North Carolina, 384 U.S. 737 (1966) (escaped convict

held incommunicado 16 days but periods of interrogation each day were about an

hour each); Greenwald v. Wisconsin, 390 U.S. 519 (1968); Darwin v. Connecticut,

391 U.S. 346 (1968).

312 Gallegos v. Colorado, 370 U.S. 49 (1962); Blackburn v. Alabama, 361 U.S.

199 (1960); Fikes v. Alabama, 352 U.S. 191 (1957); Payne v. Arkansas, 356 U.S. 560

(1958); Reck v. Pate, 367 U.S. 433 (1961); Culombe v. Connecticut, 367 U.S. 568 (1961).

The suspect in Spano v. New York, 360 U.S. 315 (1959), was a 25-year-old foreigner

with a history of emotional instability. The fact that the suspect was a woman was

apparently significant in Lynumn v. Illinois, 372 U.S. 528 (1963), in which officers

threatened to have her children taken from her and to have her taken off the welfare relief rolls.

AMENDMENT 5—RIGHTS OF PERSONS 1523
The “totality of the circumstances” was looked to in determining admissibility. In some of the cases a single factor could be thought

to stand out as indicating the involuntariness of the confession,313

but in other cases the Court recited a number of contributing factors, including age, intelligence, incommunicado detention, denial

of requested counsel, denial of access to friends, trickery, and other

things, without seeming to rank any factor above the others.314 Confessions induced through the exploitation of some illegal action, such

as an illegal arrest 315 or an unlawful search and seizure,316 were

found inadmissible. Where police obtain a subsequent confession after obtaining one that is inadmissible as involuntary, the Court did

not assume that the subsequent confession was similarly involuntary, but independently evaluated whether the coercive actions which

produced the first continued to produce the later confession.317

From the Voluntariness Standard to Miranda.—Invocation

by the Court of a self-incrimination standard for judging the fruits

of police interrogation was no unheralded novelty in Miranda v. Arizona.

318 Though the historical basis of the rule excluding coerced

and involuntary confessions, in both early state confession cases 319

and earlier cases from the lower federal courts,320 was their untrustworthiness,321 in Lisenba v. California,

322 Justice Roberts drew a

distinction between the common law confession rule and the standard of due process. “[T]he fact that the confessions have been conclusively adjudged by the decision below to be admissible under State

But a suspect’s mental state alone—even insanity—is insufficient to establish

involuntariness absent some coercive police activity. Colorado v. Connelly, 479 U.S.

157 (1986).

313 E.g., Leyra v. Denno, 347 U.S. 556 (1954) (confession obtained by psychiatrist trained in hypnosis from a physically and emotionally exhausted suspect who

had already been subjected to three days of interrogation); Townsend v. Sain, 372

U.S. 293 (1963) (suspect was administered drug with properties of “truth serum” to

relieve withdrawal pains of narcotics addiction, although police probably were not

aware of drug’s side effects).

314 E.g., Johnson v. New Jersey, 384 U.S. 719 (1966); Davis v. North Carolina,

384 U.S. 737 (1966); Ashdown v. Utah, 357 U.S. 426 (1958); Thomas v. Arizona, 356

U.S. 390 (1958).

315 Wong Sun v. United States, 371 U.S. 471 (1963).

316 Fahy v. Connecticut, 375 U.S. 85 (1963).

317 United States v. Bayer, 331 U.S. 532 (1947); Lyons v. Oklahoma, 322 U.S.

596 (1944); Leyra v. Denno, 347 U.S. 556 (1954); Darwin v. Connecticut, 391 U.S.

346 (1968).

318 384 U.S. 436 (1966).

319 Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S.

227 (1940); White v. Texas, 310 U.S. 530 (1940).

320 Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 162 U.S. 613

(1896).

321 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 882, at

246 (3d ed. 1940).

322 314 U.S. 219, 236 (1941).

1524 AMENDMENT 5—RIGHTS OF PERSONS
law, notwithstanding the circumstances under which they were made,

does not answer the question whether due process was lacking. The

aim of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a

fair risk the confession is false. . . . The aim of the requirement of

due process is not to exclude presumptively false evidence, but to

prevent fundamental unfairness in the use of evidence, whether true

or false.” Over the next several years, while the Justices continued

to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness.323

Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that,

in Rogers v. Richmond,

324 Justice Frankfurter spoke for six other

Justices in writing: “Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into

evidence of confessions which are involuntary, i.e., the product of

coercion, either physical or psychological, cannot stand. This is so

not because such confessions are unlikely to be true but because

the methods used to extract them offend an underlying principle in

the enforcement of our criminal law: that ours is an accusatorial

and not an inquisitorial system—a system in which the State must

establish guilt by evidence independently and freely secured and

may not by coercion prove its charges against an accused out of his

own mouth.” Nevertheless, Justice Frankfurter said in another case,

“[n]o single litmus-paper test for constitutionally impermissible interrogation has been evolved.” 325 Three years later, in Malloy v. Hogan,

326 in the process of applying the Self-Incrimination Clause to

323 Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944), with Lyons v. Oklahoma, 322 U.S. 596 (1944), and Malinski v. New York, 324 U.S. 401 (1945). In Watts

v. Indiana, 338 U.S. 49 (1949), Harris v. South Carolina, 338 U.S. 68 (1949), and

Turner v. Pennsylvania, 338 U.S. 62 (1949), five Justices followed the due processfairness standard while four adhered to a trustworthiness rationale. See 338 U.S. at

57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 U.S. 156,

192 (1953), the trustworthiness rationale had secured the adherence of six Justices.

The primary difference between the two standards is the admissibility under the

trustworthiness standard of a coerced confession if its trustworthiness can be established, if, that is, it can be corroborated.

324 365 U.S. 534, 540–41 (1961). Similar expressions may be found in Spano v.

New York, 360 U.S. 315 (1959), and Blackburn v. Alabama, 361 U.S. 199 (1960). See

also Culombe v. Connecticut, 367 U.S. 568, 583 n.25 (1961), in which Justice Frankfurter, announcing the judgment of the Court, observed that “the conceptions underlying the rule excluding coerced confessions and the privilege again selfincrimination have become, to some extent, assimilated.”

325 Culombe v. Connecticut, 367 U.S. 568, 601 (1961). The same thought informs the options of the Court in Haynes v. Washington, 373 U.S. 503 (1963).

326 378 U.S. 1 (1964).

AMENDMENT 5—RIGHTS OF PERSONS 1525
the states, Justice Brennan for the Court reinterpreted the line of

cases since Brown v. Mississippi 327 to conclude that the Court had

initially based its rulings on the common-law confession rationale,

but that, beginning with Lisenba v. California,

328 a “federal standard” had been developed. The Court had engaged in a “shift [that]

reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.” Today, continued Justice

Brennan, “the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897,” when Bram v. United States had announced that

the Self-Incrimination Clause furnished the basis for admitting or

excluding evidence in federal courts.329

One week after the decision in Malloy v. Hogan, the Court defined the rules of admissibility of confessions in different terms: although it continued to emphasize voluntariness, it did so in selfincrimination terms rather than in due process terms. In Escobedo

v. Illinois,

330 it held inadmissible a confession obtained from a suspect in custody who repeatedly had requested and been refused an

opportunity to consult with his retained counsel, who was at the

police station seeking to gain access to his client.331 Although Escobedo

appeared in the main to be a Sixth Amendment right-to-counsel case,

the Court at several points emphasized, in terms that clearly implicated self-incrimination considerations, that the suspect had not been

warned of his constitutional rights.332

327 297 U.S. 278 (1936).

328 314 U.S. 219 (1941).

329 Malloy v. Hogan, 378 U.S. 1, 6–7 (1964). Protesting that this was “post facto

reasoning at best,” Justice Harlan contended that the “majority is simply wrong” in

asserting that any of the state confession cases represented anything like a selfincrimination basis for the conclusions advanced. Id. at 17–19. Bram v. United States,

168 U.S. 532 (1897), is discussed under “Confessions: Police Interrogation, Due Process, and Self-Incrimination,” supra.

330 378 U.S. 478 (1964). Joining Justice Goldberg in the majority were Chief Justice Warren and Justices Black, Douglas, and Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 492, 493, 495.

331 Previously, it had been held that a denial of a request to consult counsel

was but one of the factors to be considered in assessing voluntariness. Crooker v.

California, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504 (1958). Chief Justice

Warren and Justices Black, Douglas, and Brennan were prepared in these cases to

impose a requirement of right to counsel per se. Post-indictment interrogation without the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315

(1959), and this was confirmed in Massiah v. United States, 377 U.S. 201 (1964).

See discussion of “Custodial Interrogation” under Sixth Amendment, infra.

332 Escobedo v. Illinois, 378 U.S. 478, 485, 491 (1964) (both pages containing

assertions of the suspect’s “absolute right to remain silent” in the context of police

warnings prior to interrogation).

1526 AMENDMENT 5—RIGHTS OF PERSONS
Miranda v. Arizona.—In Miranda v. Arizona, a custodial confession case decided two years after Escobedo, the Court deemphasized

the Sixth Amendment holding of Escobedo and made the Fifth Amendment self-incrimination rule preeminent.333 The core of the Court’s

prescriptive holding in Miranda is as follows: “[T]he prosecution may

not use statements, whether exculpatory or inculpatory, 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. The defendant may waive

effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any

manner and at any stage of the process that he wishes to consult

with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that

he does not wish to be interrogated, the police may not question

him. The mere fact that he may have answered some questions or

volunteered some statements on his own does not deprive him of

the right to refrain from answering any further inquiries until he

has consulted with an attorney and thereafter consents to be questioned.” 334

In the opinion of the Miranda Court, police interrogation as conceived and practiced was inherently coercive and the resulting intimidation, though informal and legally sanctionless, was contrary

to the protection to be afforded in a system that convicted on the

basis of evidence independently secured. In the Court’s view, this

premise underlaid the law in the federal courts since 1897, and the

application of the Self-Incrimination Clause to the states in 1964

necessitated the application of the principle in state courts as well.

Thereafter, state and local police interrogation practices need be struc333 384 U.S. 436, 444–45 (1966). In Johnson v. New Jersey, 384 U.S. 719 (1966),

the Court held that neither Escobedo nor Miranda was to be applied retroactively.

In cases where trials commenced after the decisions were announced, the due process “totality of circumstances” test was to be the key. Cf. Davis v. North Carolina,

384 U.S. 737 (1966).

334 384 U.S. at 444–445.

AMENDMENT 5—RIGHTS OF PERSONS 1527
tured to ensure that suspects not be stripped of the ability to make

a free and rational choice between speaking and not speaking. The

warnings and the provision of counsel were essential, the Court said,

in custodial interrogations.335 “In these cases [presently before the

Court],” said Chief Justice Warren, “we might not find the defendants’ statements to have been involuntary in traditional terms[,

but o]ur concern for adequate safeguards to protect precious Fifth

Amendment rights is, of course, not lessened in the slightest.” 336 It

was thus not the application of the Self-Incrimination Clause to police interrogation in Miranda that constituted the major change from

precedent but rather the prescriptive series of warnings and guarantees which the Court imposed as security for the observance of

the privilege.

Although the Court’s decision rapidly became highly controversial and the source of much political agitation, including playing a

prominent role in the 1968 presidential election, the Court has continued to adhere to it,337 albeit not without considerable qualification. Nevertheless, the constitutional status of the Miranda warnings has remained clouded in uncertainty. Had the Court announced

a constitutionally compelled rule, or merely a supervisory rule that

could be superseded by statute? In 1968, Congress enacted a statute, codified at 18 U.S.C. § 3501, designed to set aside Miranda in

335 Justices Clark, Harlan, Stewart, and White dissented, finding no historical

support for the application of the clause to police interrogation and rejecting the

policy considerations for the extension put forward by the majority. Miranda v. Arizona, 384 U.S. 436, 499, 504, 526 (1966). Justice White argued that while the Court’s

decision was not compelled or even strongly suggested by the Fifth Amendment, its

history, and the judicial precedents, this did not preclude the Court from making

new law and new public policy grounded in reason and experience, but he contended that the change made in Miranda was ill-conceived because it arose from a

view of interrogation as inherently coercive and because the decision did not adequately protect society’s interest in detecting and punishing criminal behavior. Id.

at 531–45.

336 384 U.S. at 457. For the continuing recognition of the difference between the

traditional involuntariness test and the Miranda test, see Michigan v. Tucker, 417

U.S. 433, 443–46 (1974); Mincey v. Arizona, 437 U.S. 385, 396–402 (1978). The acknowledgment that the decision considerably expanded upon previous doctrine, even

if the assimilation of self-incrimination values by the confession-exclusion rule be

considered complete, was more clearly made a week after Miranda when, in denying retroactivity to that case and to Escobedo, the Court asserted that law enforcement officers had relied justifiably upon prior cases, “now no longer binding,” which

treated the failure to warn a suspect of his rights or the failure to grant access to

counsel as one of the factors to be considered. Johnson v. New Jersey, 384 U.S. 719,

731 (1966).

337 See, e.g., Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Chief Justice Burger

concurring) (“The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda,

disparage it, nor extend it at this late date.”)

1528 AMENDMENT 5—RIGHTS OF PERSONS
the federal courts and to reinstate the traditional voluntariness test.338

The statute lay unimplemented, for the most part, due to constitutional doubts about it. Meanwhile, the Court created exceptions to

the Miranda warnings over the years, and referred to the warnings as “prophylactic” 339 and “not themselves rights protected by

the Constitution.” 340 There were even hints that some Justices might

be willing to overrule the decision.

In Dickerson v. United States,

341 the Court addressed the foundational issue, finding that Miranda was a “constitutional decision” that could not be overturned by statute, and consequently that

18 U.S.C. § 3501, which provided for a less strict “voluntariness”

standard for the admissibility of confessions, could not be sustained. Consistent application of Miranda warnings to state proceedings necessarily implied a constitutional base, the Court explained,

since federal courts “hold no supervisory authority over state judicial proceedings.” 342 Moreover, Miranda itself had purported to “give

concrete constitutional guidance to law enforcement agencies and

courts to follow.” 343 The two dissenting Justices in Dickerson maintained that the majority’s characterization of Miranda as providing

concrete constitutional guidance fell short of holding that custodial

interrogation not preceded by Miranda warnings was unconstitutional, a position with which the dissenters pointedly disagreed.344

Eleven years after Dickerson, in the 2011 case J.D.B. v. North Carolina, the number of Justices asserting that Miranda was not a constitutional rule grew to four.345 Also, that Miranda may be rooted

in the Constitution does not, according to the Court, mean that the

precise articulation of the warnings in it is “immutable.” 346

Beyond finding that Miranda has, at the least, “constitutional

underpinnings,” the Dickerson Court also rejected a request to overrule Miranda. “Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the

first instance,” Chief Justice Rehnquist wrote for the seven-Justice

majority, “the principles of stare decisis weigh heavily against over338 Pub. L. 90–351, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501. See S. Rep. No.

1097, 90th Cong., 2d Sess. 37–53 (1968). An effort to enact a companion measure

applicable to the state courts was defeated.

339 New York v. Quarles, 467 U.S. 549, 653 (1984).

340 Michigan v. Tucker, 417 U.S. 433, 444 (1974).

341 530 U.S. 428 (2000).

342 530 U.S. at 438.

343 530 U.S. at 439 (quoting from Miranda, 384 U.S. at 441–42).

344 530 U.S. at 444 (Justices Scalia and Thomas dissenting).

345 564 U.S. ___, No. 09–11121, slip op. (2011) (Jusitces Alito, Scalia, Thomas

and Chief Justice Roberts, dissenting).

346 See, e.g., Florida v. Powell, 559 U.S. ___, No. 08–1175, slip op. at 8, 12–13

(2010).

AMENDMENT 5—RIGHTS OF PERSONS 1529
ruling it now.” There was no special justification for overruling the

decision; subsequent cases had not undermined the decision’s doctrinal underpinnings, but rather had “reaffirm[ed]” its “core ruling.” Moreover, Miranda warnings had “become so embedded in routine police practice [that they] have become part of our national

culture.” 347

As to the viability of Miranda claims in federal habeas corpus

cases, the Court had suggested in 1974 that most claims could be

disallowed,348 but such a course was squarely rejected in 1993. The

Court ruled in Withrow v. Williams that Miranda protects a fundamental trial right of the defendant, unlike the Fourth Amendment

exclusionary rule addressed in Stone v. Powell,

349 and claimed violations of Miranda merited federal habeas corpus review because

they relate to the correct ascertainment of guilt.350 The purposes of

the Miranda rule differed from the Mapp v. Ohio 351 exclusionary

rule denied enforcement in habeas proceedings in Stone, the Court

explained, because the primary purpose of Mapp was to deter future Fourth Amendment violations, a purpose that the Court claimed

would only be marginally advanced by allowing collateral review.352 A further consideration was that eliminating review of Miranda

claims would not significantly reduce federal habeas review of state

convictions, because most Miranda claims could be recast in terms

of due process denials resulting from admission of involuntary confessions.353

347 530 U.S. at 443.

348 In Michigan v. Tucker, 417 U.S. 433, 439 (1974), the Court had suggested a

distinction between a constitutional violation and a violation of “the prophylactic rules

developed to protect that right.” The actual holding in Tucker, however, had turned

on the fact that the interrogation had preceded the Miranda decision and that warnings—albeit not full Miranda warnings—had been given.

349 428 U.S. 465 (1976).

350 507 U.S. 680 (1993). Even though a state prisoner’s Miranda claim may be

considered in federal habeas review, the scope of federal habeas review is narrow.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state

court judgment may be set aside on habeas review only if the judgment is found to

be contrary to, or an unreasonable application of, clearly established Supreme Court

precedent. By contrast, a federal court reviewing a state court judgment on direct

review considers federal legal questions de novo and can overturn a state court holding based on its own independent assessment of federal legal issues. This difference

in scope of review can be critical. Compare Yarborough v. Alvarado, 541 U.S. 652

(2004) (habeas petition denied because state court’s refusal to take a juvenile’s age

into account in applying Miranda was not an unreasonable application of clearly

established Supreme Court precedent), with J.D.B. v. North Carolina, 564 U.S. ___,

No. 09–11121, slip op. (2011) (on the Court’s de novo review of the age issue, state

court’s refusal to take a juvenile’s age into account in applying Miranda held to be

in error, and case remanded).

351 367 U.S. 643 (1961).

352 507 U.S. at 686–93.

353 507 U.S. at 693.

1530 AMENDMENT 5—RIGHTS OF PERSONS
In any event, the Court has established several lines of decisions interpreting key aspects of Miranda.

First, Miranda warnings must be given prior to “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.” 354 The cases have distilled “custody or other significant deprivation of action” into a two-part assessment under which

restricting a person’s movement is a necessary but not sufficient element. Not all inhibitions of “free movement” trigger Miranda.

Whether a person is “in custody” during questioning depends on the

coercive pressure posed. The Court applies an objective, contextspecific test of how intimidated a reasonable person in the suspect’s shoes would feel to freely exercise his right against selfincrimination. A police officer’s subjective and undisclosed view that

a person being interrogated is a criminal suspect is not relevant

for Miranda purposes, nor is the subjective view of the person being questioned.355 The only refinement to this one-size-fits-all reasonable person test is consideration of age if the detainee is a juvenile.356

An ordinary traffic stop does not to amount to Miranda “custody.” 357 Nor do all interrogations of prison inmates about previous

outside conduct, even if the inmate is isolated from the general prison

population for questioning.358 This view on prison interrogations evi354 Miranda v. Arizona, 384 U.S. 436, 444 (1966) (emphasis added).

355 Stansbury v. California, 511 U.S. 318 (1994).

356 J.D.B. v. North Carolina, 564 U.S. ___, No. 09–11121, slip op. (2011) (case

remanded to evaluate whether a 13-year-old student questioned by a uniformed police officer and school administrators on school grounds was in custody).

357 Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (roadside questioning of motorist stopped for traffic violation not custodial interrogation until “freedom of action is curtailed to a ‘degree associated with formal arrest’ ”). Thus, “custody” for

self-incrimination purposes under the Fifth Amendment does not necessarily cover

all detentions that are “seizures” under the Fourth Amendment. Id.

358 Howes v. Fields, 565 U.S. ___, No. 10–680, slip op. (2012) (taking a prisoner

incarcerated for disorderly conduct aside for questioning about an unrelated child

molestation incident held, 6–3, not to constitute custodial interrogation under the

totality of the circumstances in the case), distinguishing Mathis v. United States,

391 U.S. 1 (1968) (questioning state prisoner about unrelated federal tax violation

held to be custodial interrogation). While the Howes Court split 6–3 on whether a

custodial interrogation had taken place for Fifth Amendment purposes, the case was

before it on habeas review, which requires that a clearly established Supreme Court

precedent mandates a contrary result. All the Howes Justices agreed that Mathis

had not, for purposes of habeas review of a state case, “clearly established” that all

private questioning of an inmate about previous, outside conduct was “custodial” per

se. Rather, Howes explained that a broader assessment of all relevant factors in each

case was necessary to establish coercive pressure amounting to “custody.” Cf. Maryland v. Shatzer, 559 U.S. ___, No. 08–680, slip op. (2010) (extended release of interrogated inmate back into the general prison population broke “custody” for purposes

of later questioning); see also Illinois v. Perkins, 496 U.S. 292 (1990) (inmate’s conAMENDMENT 5—RIGHTS OF PERSONS 1531
dences the Court’s continuing movement toward individualized analyses of Miranda issues based on particular circumstances and away

from the more categorical decisions announced soon after Miranda.

Still, some of the early decisions may retain vitality. One example

is the 1969 decision in Orozco v. Texas, which held that questioning a person upon his arrest in his home is custodial.359 On the

other hand, the fact that a suspect may be present in a police station does not necessarily mean, in the absence of further restrictions, that questioning is custodial,360 and the fact that he is in his

home or other familiar surroundings will ordinarily lead to a conclusion that the inquiry was noncustodial.361 Also, if a person has

been subjected to Miranda custody, that custody ends when he is

free to resume his normal life activities after questioning.

362 Nevertheless, a break in custody may not end all Miranda implications

for subsequent custodial interrogations.363

Second, Miranda warnings must precede custodial interrogation. It is not necessary under Miranda that the police squarely ask

a question. The breadth of the interrogation concept is demonstrated in Rhode Island v. Innis.

364 There, police had apprehended

the defendant as a murder suspect but had not found the weapon

versation with an undercover agent does not create a coercive, police-dominated environment and does not implicate Miranda if the suspect does not know that he is

conversing with a government agent).

359 394 U.S. 324 (1969) (police entered suspect’s bedroom at 4 a.m., told him he

was under arrest, and questioned him; four of the eight Justices who took part in

the case, including three dissenters, voiced concern about this “broadening” of Miranda

beyond the police station).

360 Oregon v. Mathiason, 429 U.S. 492 (1977) (suspect came voluntarily to police station to be questioned, he was not placed under arrest while there, and he

was allowed to leave at end of interview, even though he was named by victim as

culprit, questioning took place behind closed doors, and he was falsely informed his

fingerprints had been found at scene of crime); Salinas v. Texas, 570 U.S. ___, No.

12–246, slip op. (2013) (plurality opinion) (voluntarily accompanying police to station for questioning). Cf. Stansbury v. California, 511 U.S. 318 (1994). See also Minnesota v. Murphy, 465 U.S. 420 (1984) (required reporting to probationary officer is

not custodial situation); Yarborough v. Alvarado, 541 U.S. 652 (2004) (state court

determination that teenager brought to police station by his parents was not “in

custody” was not “unreasonable” for purposes of federal habeas review under the

standards of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)).

361 Beckwith v. United States, 425 U.S. 341 (1976) (IRS agents’ interview with

taxpayer in private residence was not a custodial interrogation, although inquiry

had “focused” on him).

362 This holds even in the case of convict who is released after interrogation back

into the general population. Maryland v. Shatzer, 559 U.S. ___, No. 08–680, slip op.

(2010).

363 Edwards v. Arizona, 451 U.S. 477 (1981).

364 446 U.S. 291 (1980). A remarkably similar factual situation was presented

in Brewer v. Williams, 430 U.S. 387 (1977), which was decided under the Sixth Amendment. In Brewer, and also in Massiah v. United States, 377 U.S. 201 (1964), and

United States v. Henry, 447 U.S. 264 (1980), the Court has had difficulty in expounding on what constitutes interrogation for Sixth Amendment counsel purposes. The

1532 AMENDMENT 5—RIGHTS OF PERSONS
used. While he was being transported to police headquarters in a

squad car, the defendant, who had been given the Miranda warnings and had asserted he wished to consult a lawyer before submitting to questioning, was not asked questions by the officers. However, the officers engaged in conversation among themselves, in which

they indicated that a school for handicapped children was near the

crime scene and that they hoped the weapon was found before a

child discovered it and was injured. The defendant then took them

to the weapon’s hiding place.

Unanimously rejecting a contention that Miranda would have

been violated only by express questioning, the Court said: “We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda

refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The

latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus

reflects the fact that the Miranda safeguards were designed to vest

a suspect in custody with an added measure of protection against

coercive police practices, without regard to objective proof of the underlying intent of the police.” 365 A divided Court then concluded that

the officers’ conversation did not amount to a functional equivalent

of questioning and that the evidence was admissible.366

A later divided Court applied Innis in Arizona v. Mauro 367 to

hold that a suspect who had requested an attorney was not “interrogated” by bringing instead the suspect’s wife, who also was a suspect, to speak with him in police presence. The majority emphasized that the suspect’s wife had asked to speak with her husband,

the meeting was therefore not a police-initiated ruse designed to

elicit a response from the suspect, and in any event the meeting

could not be characterized as an attempt by the police to use the

coercive nature of confinement to extract a confession that would

not be given in an unrestricted environment. The dissent argued

that the police had exploited the wife’s request to talk with her husInnis Court indicated that the definitions are not the same for each Amendment.

446 U.S. at 300 n.4.

365 Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980).

366 446 U.S. at 302–04. Justices Marshall, Brennan, and Stevens dissented, id.

at 305, 307. See also Illinois v. Perkins, 496 U.S. 292 (1990) (absence of coercive

environment makes Miranda inapplicable to jail cell conversation between suspect

and police undercover agent).

367 481 U.S. 520 (1987).

AMENDMENT 5—RIGHTS OF PERSONS 1533
band in a custodial setting to create a situation the police knew, or

should reasonably have known, was reasonable likely to result in

an incriminatory statement.

In Estelle v. Smith,

368 the Court held that a court-ordered jailhouse interview by a psychiatrist seeking to determine the defendant’s competency to stand trial constituted “interrogation” with respect to testimony on issues guilt and punishment; the psychiatrist’s

conclusions about the defendant’s dangerousness were inadmissible

at the capital sentencing phase of the trial because the defendant

had not been given his Miranda warnings prior to the interview.

That the defendant had been questioned by a psychiatrist designated to conduct a neutral competency examination, rather than

by a police officer, was “immaterial,” the Court concluded, since the

psychiatrist’s testimony at the penalty phase changed his role from

one of neutrality to that of an agent of the prosecution.369 Other

instances of questioning in less formal contexts in which the issues

of custody and interrogation intertwine, e.g., in on-the-street encounters, await explication by the Court.

Third, before a suspect in custody is interrogated, he must be

given full warnings, or the equivalent, of his rights. Miranda, of

course, required express warnings to be given to an in-custody suspect of his right to remain silent, that anything he said may be

used as evidence against him, that he has a right to counsel, and

that if he cannot afford counsel he is entitled to an appointed attorney.370 The Court recognized that “other fully effective means” could

be devised to convey the right to remain silent,371 but it was firm

that the prosecution was not permitted to show that an unwarned

suspect knew of his rights in some manner.372 Nevertheless, it is

not necessary that the police give the warnings as a verbatim recital of the words in the Miranda opinion itself, so long as the words

used “fully conveyed” to a defendant his rights.373

368 451 U.S. 454 (1981).

369 451 U.S. at 467.

370 Miranda v. Arizona, 384 U.S. 436, 444 (1966). See id. at 469–73.

371 384 U.S. at 444.

372 384 U.S. at 469.

373 California v. Prysock, 453 U.S. 355 (1981). Rephrased, the test is whether

the warnings “reasonably conveyed” a suspect’s rights, the Court adding that reviewing courts “need not examine Miranda warnings as if construing a will or defining

the terms of an easement.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (upholding warning that included possibly misleading statement that a lawyer would be

appointed “if and when you go to court”). Even where warnings were not the “clearest possible formulation of Miranda’s right-to-counsel advisement,” the Court found

them acceptable as “sufficiently comprehensive and comprehensible when given a

commonsense reading.” Florida v. Powell, 559 U.S. ___, No. 08–1175, slip op. at 12

(2010) (emphasis in original) (upholding warning of a right to talk to a lawyer before answering any questions, coupled with advice that the right could be invoked

1534 AMENDMENT 5—RIGHTS OF PERSONS
Fourth, once a warned suspect asserts his right to silence and

requests counsel, the police must scrupulously respect his assertion

of right. The Miranda Court strongly stated that once a warned

suspect “indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation must

cease.” Further, if the suspect indicates he wishes the assistance of

counsel during interrogation, questioning must cease until he has

counsel.374

That said, the Court has issued a distinct line of cases on the

right to counsel that has created practically a per se rule barring

the police from continuing or from reinitiating interrogation with a

suspect requesting counsel until counsel is present, save only that

the suspect himself may initiate further proceedings. In Edwards

v. Arizona,

375 initial questioning had ceased as soon as the suspect

had requested counsel, and the suspect had been returned to his

cell. Questioning had resumed the following day only after different police officers had confronted the suspect and again warned him

of his rights; the suspect agreed to talk and thereafter incriminated himself. Nonetheless, the Court held, “when an accused has

invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of this rights. We further

hold that an accused . . . , having expressed his desire to deal with

the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges, or conversations with the police.” 376 The Edwards rule bars

at any time during police questioning, as adequate to inform a suspect of his right

to have a lawyer present during questioning).

374 Miranda v. Arizona, 384 U.S. 436, 472, 473–74 (1966). While a request for a

lawyer is a per se invocation of Fifth Amendment rights, a request for another advisor, such as a probation officer or family member, may be taken into account in determining whether a suspect has evidenced an intent to claim his right to remain

silent. Fare v. Michael C., 442 U.S. 707 (1979) (juvenile who requested to see his

probation officer, rather than counsel, found under the totality-of-the-circumstances

to have not invoked a right to remain silent).

375 451 U.S. 477 (1981).

376 451 U.S. at 484–85. The decision was unanimous, but three concurrences objected to a special rule limiting waivers with respect to counsel to suspect-initiated

further exchanges. Id. at 487, 488 (Chief Justice Burger and Justices Powell and

Rehnquist). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court held, albeit

without a majority of Justices in complete agreement as to rationale, that an accused who had initiated further conversations with police had knowingly and intelligently waived his right to have counsel present. So too, an accused who expressed

a willingness to talk to police, but who refused to make a written statement without presence of counsel, was held to have waived his rights with respect to his oral

statements. Connecticut v. Barrett, 479 U.S. 523 (1987).

AMENDMENT 5—RIGHTS OF PERSONS 1535
police-initiated questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested.377 It also applies to interrogation by officers of a

different law enforcement authority.378

On the other hand, the Edwards rule requiring that a lawyer

be provided to a suspect who had requested one in an earlier interrogation does not apply once there has been a meaningful break in

custody. The Court in Maryland v. Shatzer 379 characterized the Edwards rule as a judicially prescribed precaution against using the

coercive pressure of prolonged custody to badger a suspect who has

previously requested counsel into talking without one. However, after a suspect has been released to resume his normal routine for a

sufficient period to dissipate the coercive effects of custody, a period

set at 14 days by the Shatzer Court, the rationale for solicitous treatment ceases. If the suspect is thereafter put into custody again, the

options for questioning no longer are limited to suspect-initiated talks

or providing counsel, but rather the police may issue new Miranda

warnings and proceed accordingly.380 Moreover, the Edwards rule

has not been explicitly extended to other aspects of the Miranda

warnings.381

Fifth, a properly warned suspect may waive his Miranda rights

and submit to custodial interrogation. Miranda recognized that a

suspect may voluntarily and knowingly give up his rights and respond to questioning, but the Court also cautioned that the prosecution bore a “heavy burden” to establish that a valid waiver had ocIn Minnick v. Mississippi, 498 U.S. 146 (1990), the Court interpreted Edwards

to bar interrogation without counsel present of a suspect who had earlier consulted

with an attorney on the accusation at issue. “[W]hen counsel is requested, interrogation must cease, and officials may not reinstate interrogation without counsel present, whether or not the accused has consulted with his attorney.” Id. at 153.

The Court has held that Edwards should not be applied retroactively to a conviction that had become final, Solem v. Stumes, 465 U.S. 638 (1984), but that Edwards does apply to cases pending on appeal at the time it was decided. Shea v.

Louisiana, 470 U.S. 51 (1985).

377 Arizona v. Roberson, 486 U.S. 675 (1988). By contrast, the Sixth Amendment right to counsel is offense-specific, and does not bar questioning about a crime

unrelated to the crime for which the suspect has been charged. See McNeil v. Wisconsin, 501 U.S. 171 (1991).

378 Minnick v. Mississippi, 498 U.S. 146 (1990).

379 559 U.S. ___, No. 08–680, slip op. (2010).

380 Id.

381 For a pre-Edwards case on the right to remain silent, see Michigan v. Mosley,

423 U.S. 96 (1975) (suspect given Miranda warnings at questioning for robbery, requested cessation of interrogation, and police complied; some two hours later, a different policeman interrogated suspect about a murder, gave him a new Miranda warning, and suspect made incriminating admission; since police “scrupulously honored”

suspect’s request, admission valid).

1536 AMENDMENT 5—RIGHTS OF PERSONS
curred.382 The Court continued: “[a] valid waiver will not be presumed

simply from the silence of the accused after warnings are given or

simply from the fact that a confession was in fact eventually obtained.” 383 Subsequent cases indicated that determining whether a

suspect has waived his Miranda rights is a fact-specific inquiry not

easily susceptible to per se rules. According to these cases, resolution of the issue of waiver “must be determined on ‘the particular

facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” 384 Under this line

of cases, a waiver need not always be express, nor does Miranda

impose a formalistic waiver procedure.385

In Berghuis v. Thompkins, citing the societal benefit of requiring an accused to invoke Miranda rights unambiguously, the Court

refocused its Miranda waiver analysis to whether a suspect understood his rights.386 There, a suspect refused to sign a waiver form,

remained largely silent during the ensuing 2-hour and 45-minute

interrogation, but then made an incriminating statement. The fiveJustice majority found that the suspect had failed to invoke his right

to remain silent and also implicitly had waived the right. According to the Court, though a statement following silence alone may

not be adequate to show a waiver, the prosecution may show an

382 Miranda v. Arizona, 384 U.S. 436, 475 (1966). See also Tague v. Louisiana,

444 U.S. 469 (1980). A knowing and intelligent waiver need not be predicated on

complete disclosure by police of the intended line of questioning, hence an accused’s

signed waiver following arrest for one crime is not invalidated by police having failed

to inform him of intent to question him about another crime. Colorado v. Spring,

479 U.S. 564 (1987).

383 384 U.S. at 475.

384 North Carolina v. Butler, 441 U.S. 369, 374–75 (1979) (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)). In Oregon v. Elstad, 470 U.S. 298 (1985), the Court

held that a confession following a Miranda warning is not necessarily tainted by an

earlier confession obtained without a warning, as long as the earlier confession had

been voluntary. See Bobby v. Dixon, 565 U.S. ___, No. 10–1540, slip op. (2012). See

also Moran v. Burbine, 475 U.S. 412 (1986) (signed waivers following Miranda warnings not vitiated by police having kept from suspect information that attorney had

been retained for him by a relative); Fare v. Michael C., 442 U.S. 707 (1979) (juvenile who consented to interrogation after his request to consult with his probation

officer was denied found to have waived rights; totality-of-the-circumstances analysis held to apply). Elstad was distinguished in Missouri v. Seibert, 542 U.S. 600

(2004), however, when the failure to warn prior to the initial questioning was a deliberate attempt to circumvent Miranda by use of a two-step interrogation technique, and the police, prior to eliciting the statement for the second time, did not

alert the suspect that the first statement was likely inadmissible.

385 North Carolina v. Butler, 441 U.S. 369 (1979). In Butler, the defendant had

refused to sign a waiver but agreed to talk with FBI agents nonetheless. On considering whether the defendant had thereby waived his right to counsel (his right to

remain silent aside), the Court held that no express oral or written statement was

required. Though the defendant was never directly responsive on his desire for counsel, the Court found that a waiver could be inferred from his actions and words.

386 560 U.S. ___, No. 08–1470, slip op. (2010).

AMENDMENT 5—RIGHTS OF PERSONS 1537
implied waiver by demonstrating that a suspect understood the

Miranda warnings given him and subsequently made an uncoerced

statement.387 Further, once a suspect has knowingly and voluntarily waived his Miranda rights, police officers may continue questioning until and unless the suspect clearly invokes them later.388

Sixth, the admissions of an unwarned or improperly warned suspect may not be used directly against him at trial, but the Court

has permitted some use for other purposes, such as impeachment.

A confession or other incriminating admissions obtained in violation of Miranda may not, of course, be introduced against him at

trial for purposes of establishing guilt 389 or for determining the sentence, at least in bifurcated trials in capital cases.390 On the other

hand, the “fruits” of such an unwarned confession or admission may

be used in some circumstances if the statement was voluntary.391

The Court, in opinions that bespeak a sense of necessity to narrowly construe Miranda, has broadened the permissible impeachment purposes for which unlawful confessions and admissions may

be used.392 Thus, in Harris v. New York,

393 the Court held that the

prosecution could use statements, obtained in violation of Miranda,

to impeach the defendant’s testimony if he voluntarily took the stand

387 560 U.S. ___, No. 08–1470, slip op. at 12–13 (2010).

388 Davis v. United States, 512 U.S. 452 (1994) (suspect’s statement that “maybe

I should talk to a lawyer,” uttered after Miranda waiver and after an hour and a

half of questioning, did not constitute such a clear request for an attorney when, in

response to a direct follow-up question, he said “no, I don’t want a lawyer”).

389 Miranda v. Arizona, 384 U.S. 436, 479 (1966). See also Harrison v. United

States, 392 U.S. 219 (1968) (rejecting as tainted the prosecution’s use at the second

trial of defendant’s testimony at his first trial rebutting confessions obtained in violation of McNabb-Mallory).

390 Estelle v. Smith, 451 U.S. 454 (1981). The Court has yet to consider the applicability of the ruling in a noncapital, nonbifurcated trial case.

391 United States v. Patane, 542 U.S. 630 (2004) (allowing introduction of a pistol, described as a “nontestimonial fruit” of an unwarned statement). See also Michigan v. Tucker, 417 U.S. 433 (1974) (upholding use of a witness revealed by defendant’s statement elicited without proper Miranda warning). Note too that confessions

may be the poisonous fruit of other constitutional violations, such as illegal searches

or arrests. E.g., Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442

U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982).

392 Under Walter v. United States, 347 U.S. 62 (1954), the defendant not only

denied the offense of which he was accused (sale of drugs), but also asserted he had

never dealt in drugs. The prosecution was permitted to impeach him concerning heroin

seized illegally from his home two years before. The Court observed that the defendant could have denied the offense without making the “sweeping” assertions, as to

which the government could impeach him.

393 401 U.S. 222 (1971). The defendant had denied only the commission of the

offense. The Court observed that it was only “speculative” to think that impermissible police conduct would be encouraged by permitting such impeachment, a resort

to deterrence analysis being contemporaneously used to ground the Fourth Amendment exclusionary rule, whereas the defendant’s right to testify was the obligation

to testify truthfully and the prosecution could impeach him for committing perjury.

See also United States v. Havens, 446 U.S. 620 (1980) (Fourth Amendment).

1538 AMENDMENT 5—RIGHTS OF PERSONS
and denied commission of the offense. Subsequently, in Oregon v.

Hass,

394 the Court permitted impeachment use of a statement made

by the defendant after police had ignored his request for counsel

following his Miranda warning. Such impeachment material, however, must still meet the standard of voluntariness associated with

the pre-Miranda tests for the admission of confessions and statements.395

The Court has created a “public safety” exception to the Miranda

warning requirement, but has refused to create another exception

for misdemeanors and lesser offenses. In New York v. Quarles,

396

the Court held admissible a recently apprehended suspect’s response in a public supermarket to the arresting officer’s demand to

know the location of a gun that the officer had reason to believe

the suspect had just discarded or hidden in the supermarket. The

Court, in an opinion by Justice Rehnquist,397 declined to place officers in the “untenable position” of having to make instant decisions as to whether to proceed with Miranda warnings and thereby

increase the risk to themselves or to the public or whether to dispense with the warnings and run the risk that resulting evidence

will be excluded at trial. While acknowledging that the exception

itself will “lessen the desirable clarity of the rule,” the Court predicted that confusion would be slight: “[w]e think that police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public

and questions designed solely to elicit testimonial evidence from a

suspect.” 398 No such compelling justification was offered for a Miranda

exception for lesser offenses, however, and protecting the rule’s “simplicity and clarity” counseled against creating one.399 “[A] person

subjected to custodial interrogation is entitled to the benefit of the

procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which

he was arrested.” 400

394 420 U.S. 714 (1975). By contrast, a defendant may not be impeached by evidence of his silence after police have warned him of his right to remain silent. Doyle

v. Ohio, 426 U.S. 610 (1976).

395 E.g., Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. Portash, 440 U.S.

450 (1979).

396 467 U.S. 649 (1984).

397 The Court’s opinion was joined by Chief Justice Burger and by Justices White,

Blackmun, and Powell. Justice O’Connor would have ruled inadmissible the suspect’s response, but not the gun retrieved as a result of the response, and Justices

Marshall, Brennan, and Stevens dissented.

398 467 U.S. at 658–59.

399 Berkemer v. McCarty, 468 U.S. 420, 432 (1984).

400 468 U.S. at 434.

AMENDMENT 5—RIGHTS OF PERSONS 1539
The Operation of the Exclusionary Rule

Supreme Court Review.—The Court’s review of the question

of admissibility of confessions or other incriminating statements is

designed to prevent the foreclosure of the very question to be decided by it, the issue of voluntariness under the due process standard, the issue of the giving of the requisite warnings and the subsequent waiver, if there is one, under the Miranda rule. Recurring

to Justice Frankfurter’s description of the inquiry as a “threephased process” in due process cases at least,401 it can be seen that

the Court’s self-imposed rules of restraint on review of lower-court

factfinding greatly influenced the process. The finding of facts surrounding the issue of coercion—the length of detention, circumstances of interrogation, use of violence or of tricks and ruses, et

cetera—is the proper function of the trial court which had the advantage of having the witnesses before it. “This means that all testimonial conflict is settled by the judgment of the state courts. Where

they have made explicit findings of fact, those findings conclude us

and form the basis of our review—with the one caveat, necessarily,

that we are not to be bound by findings wholly lacking support in

evidence.” 402

However, the conclusions of the lower courts as to how the accused reacted to the circumstances of his interrogation, and as to

the legal significance of how he reacted, are subject to open review.

“No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be

affirmatively established other than circumstantially—that is, by inference; and it cannot be competent to the trier of fact to preclude

our review simply be declining to draw inferences which the historical facts compel. Great weight, of course, is to be accorded to the

inferences which are drawn by the state courts. In a dubious case,

it is appropriate . . . that the state court’s determination should control. But where, on the uncontested external happenings, coercive

forces set in motion by state law enforcement officials are unmistakably in action; where these forces, under all the prevailing states

of stress, are powerful enough to draw forth a confession; where, in

fact, the confession does come forth and is claimed by the defendant to have been extorted from him; and where he has acted as a

man would act who is subjected to such an extracting process—

401 Culombe v. Connecticut, 367 U.S. 568, 603–06 (1961).

402 367 U.S. at 603. See Ashcraft v. Tennessee, 322 U.S. 143, 152–53 (1944); Lyons v. Oklahoma, 322 U.S. 596, 602–03 (1944); Watts v. Indiana, 338 U.S. 49, 50–52

(1949); Gallegos v. Nebraska, 342 U.S. 55, 60–62 (1951); Stein v. New York, 346 U.S.

156, 180–82 (1953); Payne v. Arkansas, 356 U.S. 560, 561–62 (1958).

1540 AMENDMENT 5—RIGHTS OF PERSONS
where this is all that appears in the record—a State judgment that

the confession was voluntary cannot stand.” 403 Miranda, of course,

does away with the judgments about the effect of lack of warnings,

and the third phase, the legal determination of the interaction of

the first two phases, is determined solely by two factual determinations: whether the warnings were given and if so whether there was

a valid waiver. Presumably, supported determinations of these two

facts by trial courts would preclude independent review by the Supreme Court. Yet, the Court has been clear that it may and will

independently review the facts when the factfinding has such a substantial effect on constitutional rights.404

In Withrow v. Williams,

405 the Court held that the rule of Stone

v. Powell,

406 precluding federal habeas corpus review of a state prisoner’s claim that his conviction rests on evidence obtained through

an unconstitutional search or seizure, does not extend to preclude

federal habeas review of a state prisoner’s claim that his conviction

rests on statements obtained in violation of the safeguards mandated by Miranda.

Procedure in the Trial Courts.—The Court has placed constitutional limitations upon the procedures followed by trial courts for

determining the admissibility of confessions and other incriminating admissions. Three procedures were developed over time to deal

with the question of admissibility when involuntariness was claimed.

By the orthodox method, the trial judge heard all the evidence on

voluntariness in a separate and preliminary hearing, and if he found

the confession involuntary the jury never received it, while if he

found it voluntary the jury received it with the right to consider its

weight and credibility, which consideration included the circumstances of its making. By the New York method, the judge first reviewed the confession under a standard leading to its exclusion only

if he found it not possible that “reasonable men could differ over

the [factual] inferences to be drawn” from it; otherwise, the jury

would receive the confession with instructions to first determine its

voluntariness and to consider it if it were voluntary and to disregard it if it were not. By the Massachusetts method, the trial judge

himself determined the voluntariness question and if he found the

403 Culombe v. Connecticut, 367 U.S. 568, 605 (1961). See Watts v. Indiana, 338

U.S. 49, 51 (1949); Malinski v. New York, 324 U.S. 401, 404, 417 (1945).

404 “In cases in which there is a claim of denial of rights under the Federal Constitution this Court is not bound by the conclusions of lower courts, but will reexamine the evidentiary basis on which those conclusions are founded.” Niemotko v.

Maryland, 340 U.S. 268, 271 (1951); Time, Inc. v. Pape, 401 U.S. 279, 284 (1971),

and cases cited therein.

405 507 U.S. 680 (1993).

406 428 U.S. 465 (1976). See discussion of Stone v. Powell under the Fourth Amendment, infra.

AMENDMENT 5—RIGHTS OF PERSONS 1541
confession involuntary the jury never received it; if he found it to

have been voluntarily made he permitted the jury to receive it with

instructions that the jurors should make their own independent determination of voluntariness.407

The New York method was upheld against constitutional attack in Stein v. New York,

408 but eleven years later a five-to-four

decision in Jackson v. Denno,

409 found it inadequate to protect the

due process rights of defendants. The procedure did not, the Court

held, ensure a “reliable determination on the issue of voluntariness” and did not sufficiently guarantee that convictions would not

be grounded on involuntary confessions. Because there was only a

general jury verdict of guilty, it was impossible to determine whether

the jury had first focused on the issue of voluntariness and then

either had found the confession voluntary and considered it on the

question of guilt or had found it involuntary, disregarded it, and

reached a conclusion of guilt on wholly independent evidence. It was

doubtful that a jury could appreciate the values served by the exclusion of involuntary confessions and put out of mind the content

of the confession no matter what was determined with regard to

its voluntariness. The rule was reiterated in Sims v. Georgia,

410 in

which the Court voided a state practice permitting the judge to let

the confession go to the jury for the ultimate decision on voluntariness, upon an initial determination merely that the prosecution had

made out a prima facie case that the confession was voluntary. The

Court has interposed no constitutional objection to use of either the

orthodox or the Massachusetts method for determining admissibility.411 It has held that the prosecution bears the burden of establishing voluntariness by a preponderance of the evidence, rejecting a

contention that it should be determined only upon proof beyond a

reasonable doubt,412 or by clear and convincing evidence.413

407 Jackson v. Denno, 378 U.S. 368, 410–23 (1964) (appendix to opinion of Justice Black concurring in part and dissenting in part).

408 346 U.S. 156, 170–79 (1953). Significant to the Court’s conclusion on this

matter was the further conclusion of the majority that coerced confessions were inadmissible solely because of their unreliability; if their trustworthiness could be established the utilization of an involuntary confession violated no constitutional prohibition. This conception was contrary to earlier cases and was subsequently repudiated.

See Jackson v. Denno, 378 U.S. 368, 383–87 (1964).

409 378 U.S. 368 (1964). On the sufficiency of state court determinations, see Swenson

v. Stidham, 409 U.S. 224 (1972); La Vallee v. Della Rose, 410 U.S. 690 (1973).

410 385 U.S. 538 (1967).

411 Jackson v. Denno, 378 U.S. 368 and n.8 (1964); Lego v. Twomey, 404 U.S.

477, 489–90 (1972) (rejecting contention that jury should be required to pass on

voluntariness following judge’s determination).

412 Lego v. Twomey, 404 U.S. 477 (1972).

413 Colorado v. Connelly, 479 U.S. 157 (1986).

1542 AMENDMENT 5—RIGHTS OF PERSONS
DUE PROCESS

History and Scope

“It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles

so deeply imbedded in the traditions and feelings of our people as

to be deemed fundamental to a civilized society as conceived by our

whole history. Due Process is that which comports with the deepest

notions of what is fair and right and just.” 414 The content of due

process is “a historical product” 415 that traces all the way back to

chapter 39 of Magna Carta, in which King John promised that “[n]o

free man shall be taken or imprisoned or disseized or exiled or in

any way destroyed, nor will we go upon him nor send upon him,

except by the lawful judgment of his peers or by the law of the

land.” 416 The phrase “due process of law” first appeared in a statutory rendition of this chapter in 1354. “No man of what state or

condition he be, shall be put out of his lands or tenements nor taken,

nor disinherited, nor put to death, without he be brought to answer by due process of law.” 417 Though Magna Carta was in essence the result of a struggle over interest between the King and

his barons,418 this particular clause over time transcended any such

limitation of scope, and throughout the fourteenth century parliamentary interpretation expanded far beyond the intention of any of

its drafters.419 The understanding which the founders of the American constitutional system, and those who wrote the Due Process

Clauses, brought to the subject they derived from Coke, who in his

414 Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice Frankfurter dissenting).

Due process is violated if a practice or rule “offends some principle of justice so rooted

in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

415 Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).

416 Text and commentary on this chapter may be found in W. MCKECHNIE, MAGNA

CARTA: A COMMENTARY ON THE GREAT CHARTER OF KING JOHN 375–95 (Glasgow, 2d rev. ed.

1914). The chapter became chapter 29 in the Third Reissue of Henry III in 1225. Id.

at 504, and see 139–59. As expanded, it read: “No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him,

except by a legal judgment of his peers or by the law of the land.” See also J. HOLT,

MAGNA CARTA 226–29 (1965). The 1225 reissue also added to chapter 29 the language

of chapter 40 of the original text: “To no one will we sell, to no one will we deny or

delay right or justice.” This 1225 reissue became the standard text thereafter.

417 28 Edw. III, c. 3. See F. THOMPSON, MAGNA CARTA: ITS ROLE IN THE MAKING OF THE

ENGLISH CONSTITUTION, 1300–1629, 86–97 (1948), recounting several statutory reconfirmations. Note that the limitation of “free man” had given way to the all-inclusive

delineation.

418 W. MCKECHNIE, MAGNA CARTA: A COMMENTARY ON THE GREAT CHARTER OF KING JOHN

(Glasgow, 2d rev. ed. 1914); J. HOLT, MAGNA CARTA (1965).

419 F. THOMPSON, MAGNA CARTA: ITS ROLE IN THE MAKING OF THE ENGLISH CONSTITUTION,

1300–1629 (1948).

AMENDMENT 5—RIGHTS OF PERSONS 1543
Second Institutes expounded the proposition that the term “by law

of the land” was equivalent to “due process of law,” which he in

turn defined as “by due process of the common law,” that is, “by

the indictment or presentment of good and lawful men . . . or by

writ original of the Common Law.” 420 The significance of both terms

was procedural, but there was in Coke’s writings on chapter 29 a

rudimentary concept of substantive restrictions, which did not develop in England because of parliamentary supremacy, but which

was to flower in the United States.

The term “law of the land” was early the preferred expression

in colonial charters and declarations of rights, which gave way to

the term “due process of law,” although some state constitutions continued to employ both terms. Whichever phraseology was used, the

expression seems generally to have occurred in close association with

precise safeguards of accused persons, but, as is true of the Fifth

Amendment here under consideration, the provision also suggests

some limitations on substance because of its association with the

guarantee of just compensation upon the taking of private property

for public use.421

Scope of the Guaranty.—Standing by itself, the phrase “due

process” would seem to refer solely and simply to procedure, to process in court, and therefore to be so limited that “due process of

law” would be what the legislative branch enacted it to be. But that

is not the interpretation which has been placed on the term. “It is

manifest that it was not left to the legislative power to enact any

process which might be devised. The article is a restraint on the

legislative as well as on the executive and judicial powers of the

government, and cannot be so construed as to leave Congress free

to make any process ‘due process of law’ by its mere will.” 422 All

persons within the territory of the United States are entitled to its

protection, including corporations,423 aliens,424 and presumptively citi420 SIR EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND, Part II, 50–51 (1641). For

a review of the influence of Magna Carta and Coke on the colonies and the new

nation, see, e.g., A. HOWARD, THE ROAD FROM RUNNYMEDE: MAGNA CARTA AND CONSTITUTIONALISM IN AMERICA (1968).

421 The 1776 Constitution of Maryland, for example, in its declaration of rights,

used the language of Magna Carta including the “law of the land” phrase in a separate article, 3 F. THORPE, THE FEDERAL AND STATE CONSTITUTIONS, H. Doc. No. 357, 59th

Congress, 2d Sess. 1688 (1909), whereas Virginia used the clause in a section of

guarantees of procedural rights in criminal cases. 7 id. at 3813. New York in its

constitution of 1821 was the first state to pick up “due process of law” from the

United States Constitution. 5 id. at 2648.

422 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,

276 (1856). Webster had made the argument as counsel in Trustees of Dartmouth

College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). See also Chief Justice Shaw’s

opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857).

423 Sinking Fund Cases, 99 U.S. 700, 719 (1879).

1544 AMENDMENT 5—RIGHTS OF PERSONS
zens seeking readmission to the United States,425 but States as such

are not so entitled.426 It is effective in the District of Columbia 427

and in territories which are part of the United States,428 but it does

not apply of its own force to unincorporated territories.429 Nor does

it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.430

Early in our judicial history, a number of jurists attempted to

formulate a theory of natural rights—natural justice, which would

limit the power of government, especially with regard to the property rights of persons.431 State courts were the arenas in which this

struggle was carried out prior to the Civil War. Opposing the “vested

rights” theory of protection of property were jurists who argued first,

that the written constitution was the supreme law of the State and

that judicial review could look only to that document in scrutinizing legislation and not to the “unwritten law” of “natural rights,”

and second, that the “police power” of government enabled legislatures to regulate the use and holding of property in the public interest, subject only to the specific prohibitions of the written constitution. The “vested rights” jurists thus found in the “law of the land”

and the “due process” clauses of the state constitutions a restriction upon the substantive content of legislation, which prohibited,

regardless of the matter of procedure, a certain kind or degree of

exertion of legislative power altogether.432 Thus, Chief Justice Taney

was not innovating when, in the Dred Scott case, he pronounced,

without elaboration, that one of the reasons that the Missouri Compromise was unconstitutional was that an act of Congress that deprived “a citizen of the United States of his liberty or property, merely

because he came himself or brought his property into a particular

territory of the United States, and who had committed no offence

against the laws, could hardly be dignified with the name of due

process of law.” 433 Following the war, with the ratification of the

424 Wong Wing v. United States, 163 U.S. 228, 238 (1896).

425 United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927).

426 South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966).

427 Wight v. Davidson, 181 U.S. 371, 384 (1901).

428 Lovato v. New Mexico, 242 U.S. 199, 201 (1916).

429 Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920).

430 Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1

(1946). Justices Rutledge and Murphy in the latter case argued that the Due Process Clause applies to every human being, including enemy belligerents.

431 Compare the remarks of Justices Chase and Iredell in Calder v. Bull, 3 U.S.

(3 Dall.) 386, 388–89, 398–99 (1798).

432 The full account is related in E. CORWIN, LIBERTY AGAINST GOVERNMENT ch. 3

(1948). The pathbreaking decision of the era was Wynhamer v. The People, 13 N.Y.

378 (1856).

433 Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857).

AMENDMENT 5—RIGHTS OF PERSONS 1545
Fourteenth Amendment’s Due Process Clause, substantive due process interpretations were urged on the Supreme Court with regard

to state legislation. First resisted, the arguments came in time to

be accepted, and they imposed upon both federal and state legislation a firm judicial hand that was not to be removed until the crisis of the 1930s, and that today in non-economic legislation continues to be reasserted.

“It may prevent confusion, and relieve from repetition, if we point

out that some of our cases arose under the provisions of the Fifth

and others under those of the Fourteenth Amendment to the Constitution of the United States. Although the language of those Amendments is the same, yet as they were engrafted upon the Constitution at different times and in widely different circumstances of our

national life, it may be that questions may arise in which different

constructions and applications of their provisions may be proper.” 434

The most obvious difference between the two Due Process Clauses

is that the Fifth Amendment clause as it binds the Federal Government coexists with other express provisions in the Bill of Rights

guaranteeing fair procedure and non-arbitrary action, such as jury

trials, grand jury indictments, and nonexcessive bail and fines, as

well as just compensation, whereas the Fourteenth Amendment clause

as it binds the states has been held to contain implicitly not only

the standards of fairness and justness found within the Fifth Amendment’s clause but also to contain many guarantees that are expressly set out in the Bill of Rights. In that sense, the two clauses

are not the same thing, but, insofar as they impose such implicit

requirements of fair trials, fair hearings, and the like, which exist

separately from, though they are informed by, express constitutional guarantees, the interpretation of the two clauses is substantially, if not wholly, the same. Save for areas in which the particularly national character of the Federal Government requires separate

treatment, this book’s discussion of the meaning of due process is

largely reserved for the section on the Fourteenth Amendment. Finally, some Fourteenth Amendment interpretations have been carried back to broaden interpretations of the Fifth Amendment’s Due

Process Clause, such as, for example, the development of equal protection standards as an aspect of Fifth Amendment due process.

Procedural Due Process

In 1855, the Court first attempted to assess its standards for

judging what was due process. At issue was the constitutionality of

summary proceedings under a distress warrant to levy on the lands

434 French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).

1546 AMENDMENT 5—RIGHTS OF PERSONS
of a government debtor. The Court first ascertained that Congress

was not free to make any process “due process.” “To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this

process be in conflict with any of its provisions. If not found to be

so, we must look to those settled usages and modes of proceedings

existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on

by them after the settlement of this country.” A survey of history

disclosed that the law in England seemed always to have contained a summary method, not unlike the law in question, for recovering debts owed the Crown. Therefore, “[t]ested by the common and statute law of England prior to the emigration of our

ancestors, and by the laws of many of the States at the time of the

adoption of this amendment, the proceedings authorized by the act

of 1820 cannot be denied to be due process of law. . . .” 435

This formal approach to the meaning of due process could obviously have limited both Congress and the state legislatures in the

development of procedures unknown to English law. But when California’s abandonment of indictment by grand jury was challenged,

the Court refused to be limited by the fact that such proceeding

was the English practice and that Coke had indicated that it was a

proceeding required as “the law of the land.” The Court in Murray’s Lessee meant “that a process of law, which is not otherwise

forbidden, must be taken to be due process of law, if it can show

the sanction of settled usage both in England and in this country;

but it by no means follows that nothing else can be due process of

law.” To hold that only historical, traditional procedures can constitute due process, the Court said, “would be to deny every quality of

the law but its age, and to render it incapable of progress or improvement.” 436 Therefore, the Court concluded, due process “must

be held to guarantee not particular forms of procedures, but the

very substance of individual rights to life, liberty, and property.” The

Due Process Clause prescribed “the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and

political institutions. . . . It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom,

435 Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.)

272, 276–77, 280 (1856). The Court took a similar approach in Fourteenth Amendment due process interpretation in Davidson v. City of New Orleans, 96 U.S. 97 (1878),

and Munn v. Illinois, 94 U.S. 113 (1877).

436 Hurtado v. California, 110 U.S. 516, 528–29 (1884).

AMENDMENT 5—RIGHTS OF PERSONS 1547
or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves

these principles of liberty and justice, must be held to be due process of law.” 437

Generally.—The phrase “due process of law” does not necessarily imply a proceeding in a court or a plenary suit and trial by jury

in every case where personal or property rights are involved.438 “In

all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the

established customs and usages of the courts.” 439 What is unfair in

one situation may be fair in another.440 “The precise nature of the

interest that has been adversely affected, the manner in which this

was done, the reasons for doing it, the available alternatives to the

procedure that was followed, the protection implicit in the office of

the functionary whose conduct is challenged, the balance of hurt

complained of and good accomplished—these are some of the considerations that must enter into the judicial judgment.” 441

Administrative Proceedings: A Fair Hearing.—With respect to action taken by administrative agencies, the Court has held

that the demands of due process do not require a hearing at the

initial stage, or at any particular point in the proceeding, so long

as a hearing is held before the final order becomes effective.442 In

Bowles v. Willingham,

443 the Court sustained orders fixing maximum rents issued without a hearing at any stage, saying “where

Congress has provided for judicial review after the regulations or

orders have been made effective it has done all that due process

under the war emergency requires.” But where, after consideration

of charges brought against an employer by a complaining union,

the National Labor Relations Board undertook to void an agreement between an employer and another independent union, the latter was entitled to notice and an opportunity to participate in the

proceedings.444 Although a taxpayer must be afforded a fair oppor437 110 U.S. at 532, 535, 537. This flexible approach has been followed by the

Court. E.g., Twining v. New Jersey, 211 U.S. 78 (1908); Powell v. Alabama, 287 U.S.

45 (1932); Palko v. Connecticut, 302 U.S. 319 (1937); Snyder v. Massachusetts, 291

U.S. 97 (1934).

438 Davidson v. City of New Orleans, 96 U.S. 97, 102 (1878); Public Clearing

House v. Coyne, 194 U.S. 497, 508 (1904).

439 Ex parte Wall, 107 U.S. 265, 289 (1883).

440 Compare Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18

How.) 272 (1856), with Ng Fung Ho v. White, 259 U.S. 276 (1922).

441 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) (Justice

Frankfurter concurring).

442 Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941).

443 321 U.S. 503, 521 (1944).

444 Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938).

1548 AMENDMENT 5—RIGHTS OF PERSONS
tunity for a hearing in connection with the collection of taxes,445

collection by distraint of personal property is lawful if the taxpayer

is allowed a hearing thereafter.446

When the Constitution requires a hearing, it requires a fair one,

held before a tribunal that meets currently prevailing standards of

impartiality.447 A party must be given an opportunity not only to

present evidence, but also to know the claims of the opposing party

and to meet them. Those who are brought into contest with the government in a quasi-judicial proceeding aimed at control of their activities are entitled to be fairly advised of what the government proposes and to be heard upon the proposal before the final command

is issued.448 But a variance between the charges and findings will

not invalidate administrative proceedings where the record shows

that at no time during the hearing was there any misunderstanding as to the basis of the complaint.449 The mere admission of evidence that would be inadmissible in judicial proceedings does not

vitiate the order of an administrative agency.450 A provision that

such a body shall not be controlled by rules of evidence does not,

however, justify orders without a foundation in evidence having ra445 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907); Lipke v. Lederer, 259

U.S. 557 (1922).

446 Phillips v. Commissioner, 283 U.S. 589 (1931). Cf. Springer v. United States,

102 U.S. 586, 593 (1881); Passavant v. United States, 148 U.S. 214 (1893). The collection of taxes is, however, very nearly a wholly unique area. See Perez v. Ledesma,

401 U.S. 82, 127 n.17 (1971) (Justice Brennan concurring in part and dissenting in

part). On the limitations on private prejudgment collection, see Sniadach v. Family

Finance Corp., 395 U.S. 337 (1969).

447 Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). But see Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (Justice Powell), 196–99 (Justice White) (1974) (hearing

before probably partial officer at pretermination stage).

448 Margan v. United States, 304 U.S. 1, 18–19 (1938). The Court has experienced some difficulty with application of this principle to administrative hearings

and subsequent review in selective service cases. Compare Gonzales v. United States,

348 U.S. 407 (1955) (conscientious objector contesting his classification before appeals board must be furnished copy of recommendation submitted by Department of

Justice; only by being appraised of the arguments and conclusions upon which recommendations were based would he be enabled to present his case effectively), with

United States v. Nugent, 346 U.S. 1 (1953) (in auxiliary hearing that culminated in

a Justice Department report and recommendation, it is sufficient that registrant be

provided with resume of adverse evidence in FBI report because the “imperative needs

of mobilization and national vigilance” mandate a minimum of “litigious interruption”), and Gonzales v. United States, 364 U.S. 59 (1960) (five-to-four decision finding no due process violation when petitioner (1) at departmental proceedings was

not permitted to rebut statements attributed to him by his local board, because the

statements were in his file and he had opportunity to rebut both before hearing officer and appeal board, nor (2) at trial was denied access to hearing officer’s notes

and report, because he failed to show any need and did have Department recommendations).

449 NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 349–50 (1938).

450 Western Chem. Co. v. United States, 271 U.S. 268 (1926). See also United

States v. Abilene & So. Ry., 265 U.S. 274, 288 (1924).

AMENDMENT 5—RIGHTS OF PERSONS 1549
tional probative force. Hearsay may be received in an administrative hearing and may constitute by itself substantial evidence in

support of an agency determination, provided that there are present factors which assure the underlying reliability and probative

value of the evidence and, at least in the case at hand, where the

claimant before the agency had the opportunity to subpoena the witnesses and cross-examine them with regard to the evidence.451 Although the Court has recognized that in some circumstances a “fair

hearing” implies a right to oral argument,452 it has refused to lay

down a general rule that would cover all cases.453

In the light of the historically unquestioned power of a commanding officer summarily to exclude civilians from the area of his command, and applicable Navy regulations that confirm this authority,

together with a stipulation in the contract between a restaurant concessionaire and the Naval Gun Factory forbidding employment on

the premises of any person not meeting security requirements, due

process was not denied by the summary exclusion on security grounds

of the concessionaire’s cook, without hearing or advice as to the basis for the exclusion. The Fifth Amendment does not require a trialtype hearing in every conceivable case of governmental impairment of private interest.454 Because the Civil Rights Commission

acts solely as an investigative and fact-finding agency and makes

451 Richardson v. Perales, 402 U.S. 389 (1971).

452 Londoner v. Denver, 210 U.S. 373 (1908).

453 FCC v. WJR, 337 U.S. 265, 274–77 (1949). See also Inland Empire Council v.

Millis, 325 U.S. 697, 710 (1945). See Administrative Procedure Act, 60 Stat. 237 (1946),

5 U.S.C §§ 1001–1011. Cf. Link v. Wabash R.R., 370 U.S. 626, 637, 646 (1962), in

which the majority rejected Justice Black’s dissenting thesis that the dismissal with

prejudice of a damage suit without notice to the client and grounded upon the dilatory tactics of his attorney, and the latter’s failure to appear at a pre-trial conference, amounted to a taking of property without due process of law.

454 Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961). Four dissenters, Justices Brennan, Black, Douglas, and Chief Justice Warren, emphasized

the inconsistency between the Court’s acknowledgment that the cook had a right

not to have her entry badge taken away for arbitrary reasons, and its rejection of

her right to be told in detail the reasons for such action. The case has subsequently

been cited as involving an “extraordinary situation.” Boddie v. Connecticut, 401 U.S.

371, 379 (1971); Goldberg v. Kelly, 397 U.S. 254, 264 n.10 (1970).

Manifesting a disposition to adjudicate on non-constitutional grounds dismissals of employees under the Federal Loyalty Program, the Court, in Peters v. Hobby,

349 U.S. 331 (1955), invalidated, as in excess of its delegated authority, a finding of

reasonable doubt as to the loyalty of the petitioner by a Loyalty Review Board which,

on its own initiative, reopened his case after he had twice been cleared by his Agency

Loyalty Board, and arrived at its conclusion on the basis of adverse information not

offered under oath and supplied by informants, not all of whom were known to the

Review Board and none of whom was disclosed to petitioner for cross-examination

by him. The Board was found not to possess any power to review on its own initiative. Concurring, Justices Douglas and Black condemned as irreconcilable with due

process and fair play the use of faceless informers whom the petitioner is unable to

confront and cross-examine.

1550 AMENDMENT 5—RIGHTS OF PERSONS
no adjudications, the Court, in Hannah v. Larche,

455 upheld supplementary rules of procedure adopted by the Commission, independently of statutory authorization, under which state electoral officials and others accused of discrimination and summoned to appear

at its hearings, are not apprised of the identity of their accusers,

and witnesses, including the former, are not accorded a right to confront and cross-examine witnesses or accusers testifying at such hearings. Such procedural rights, the Court maintained, have not been

granted by grand juries, congressional committees, or administrative agencies conducting purely fact-finding investigations in no way

determining private rights.

In Cole v. Young, 351 U.S. 536 (1956), also decided on the basis of statutory

interpretation, there is an intimation that grave due process issues would be raised

by the application to federal employees, not occupying sensitive positions, of a measure which authorized, in the interest of national security, summary suspensions

and unreviewable dismissals of allegedly disloyal employees by agency heads. In Service v. Dulles, 354 U.S. 363 (1957), and Vitarelli v. Seaton, 359 U.S. 535 (1959), the

Court nullified dismissals for security reasons by invoking an established rule of

administrative law to the effect that an administrator must comply with procedures

outlined in applicable agency regulations, notwithstanding that such regulations conform to more rigorous substantive and procedural standards than are required by

Congress or that the agency action is discretionary in nature. In both of the last

cited decisions, dismissals of employees as security risks were set aside by reason of

the failure of the employing agency to conform the dismissal to its established security regulations. See Accardi v. Shaughnessy, 347 U.S. 260 (1954).

Again avoiding constitutional issues, the Court, in Greene v. McElroy, 360 U.S.

474 (1959), invalidated the security clearance procedure required of defense contractors by the Defense Department as being unauthorized either by law or presidential

order. However, the Court suggested that it would condemn, on grounds of denial of

due process, any enactment or Executive Order which sanctioned a comparable department security clearance program, under which a defense contractor’s employee

could have his security clearance revoked without a hearing at which he had the

right to confront and cross-examine witnesses. Justices Frankfurter, Harlan, and Whittaker concurred without passing on the validity of such procedure, if authorized.

Justice Clark dissented. See also the dissenting opinions of Justices Douglas and

Black in Beard v. Stahr, 370 U.S. 41, 43 (1962), and in Williams v. Zuckert, 371

U.S. 531, 533 (1963).

455 363 U.S. 420, 493, 499 (1960). Justices Douglas and Black dissented on the

ground that when the Commission summons a person accused of violating a federal

election law with a view to ascertaining whether the accusation may be sustained,

it acts in lieu of a grand jury or a committing magistrate, and therefore should be

obligated to afford witnesses the procedural protection herein denied. Congress subsequently amended the law to require that any person who is defamed, degraded, or

incriminated by evidence or testimony presented to the Commission be afforded the

opportunity to appear and be heard in executive session, with a reasonable number

of additional witnesses requested by him, before the Commission can make public

such evidence or testimony. Further, any such person, before the evidence or testimony is released, must be afforded an opportunity to appear publicly to state his

side and to file verified statements with the Commission which it must release with

any report or other document containing defaming, degrading, or incriminating evidence or testimony. Pub. L. 91–521, § 4, 84 Stat. 1357 (1970), 42 U.S.C. § 1975a(e).

Cf. Jenkins v. McKeithen, 395 U.S. 411 (1969).

AMENDMENT 5—RIGHTS OF PERSONS 1551
Aliens: Entry and Deportation.—The Court has frequently said

that Congress exercises “sovereign” or “plenary” power over the substance of immigration law, and this power is at its greatest when it

comes to exclusion of aliens.456 To aliens who have never been naturalized or acquired any domicile or residence in the United States,

the decision of an executive or administrative officer, acting within

powers expressly conferred by Congress, with regard to whether or

not they shall be permitted to enter the country, is due process of

law.457 Because the status of a resident alien returning from abroad

is equivalent to that of an entering alien, his exclusion by the Attorney General without a hearing, on the basis of secret, undisclosed information, also is deemed consistent with due process.458

The complete authority of Congress in the matter of admission of

aliens justifies delegation of power to executive officers to enforce

the exclusion of aliens afflicted with contagious diseases by imposing upon the owner of the vessel bringing any such alien into the

country a money penalty, collectible before and as a condition of the

grant of clearance.459 If the person seeking admission claims American citizenship, the decision of the Secretary of Labor may be made

final, but it must be made after a fair hearing, however summary,

and must find adequate support in the evidence. A decision based

upon a record from which relevant and probative evidence has been

omitted is not a fair hearing.460 Where the statute made the decision of an immigration inspector final unless an appeal was taken

to the Secretary of the Treasury, a person who failed to take such

456 See discussion under Art. I, § 8, cl. 4, The Power of Congress to Exclude Aliens.

457 United States v. Ju Toy, 198 U.S. 253, 263 (1905). See also The Japanese

Immigrant Case (Yamataya v. Fisher), 189 U.S. 86 (1903). Cf. United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537 (1950).

458 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). The long

continued detention on Ellis Island of a non-deportable alien does not change his

status or give rise to any right of judicial review. In dissent, Justices Black and

Douglas maintained that the protracted confinement on Ellis Island without a hearing could not be reconciled with due process. Also dissenting, Justices Frankfurter

and Jackson contended that when indefinite commitment on Ellis Island becomes

the means of enforcing exclusion, due process requires that a hearing precede such

deprivation of liberty.

Cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953), in which the Court,

after acknowledging that resident aliens held for deportation are entitled to procedural due process, ruled that as a matter of law the Attorney General must accord

notice of the charges and a hearing to a resident alien seaman who is sought to be

“expelled” upon his return from a voyage overseas. Knauff was distinguished on the

ground that the seaman’s status was not that of an entrant, but rather that of a

resident alien. See also Leng May Ma v. Barber, 357 U.S. 185 (1958).

459 Oceanic Navigation Co. v. Stranahan, 214 U.S. 320 (1909).

460 Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v. United

States, 208 U.S. 8 (1908).

1552 AMENDMENT 5—RIGHTS OF PERSONS
an appeal did not, by an allegation of citizenship, acquire a right

to a judicial hearing on habeas corpus.

461

In certain cases, the exclusion of an alien has been seen to implicate the rights of U.S. citizens.462 These cases have often been

decided by the lower courts and involve U.S. citizens’ First Amendment rights, which the Supreme Court appeared to recognize in its

1972 decision in Kleindienst v. Mandel.

463 However, U.S. citizens

have also asserted that the exclusion of an alien has impinged upon

the citizen’s due process rights.464 In Kerry v. Din, five Justices agreed

that denying an immigrant visa to the husband of a U.S. citizen on

the grounds that he was inadmissible under 8 U.S.C. § 1182(a)(3)(B)

(which pertains to “terrorist activities”), without further explanation, did not violate the due process rights of the U.S. citizen spouse.465

These Justices differed in their reasoning, though. A three-Justice

plurality found that none of the various “interests” asserted by the

U.S. citizen wife constituted a protected liberty interest for purposes of the Due Process Clause.466 For this reason, the plurality

rejected the wife’s argument that, insofar as enforcement of the law

affected her enjoyment of an “implied fundamental liberty,” the government must provide her “a full battery of procedural-due-process

protections,” including stating the specific grounds on which her hus461 United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy v.

Johnson, 273 U.S. 352, 358 (1927).

462 See Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (apparently recognizing

that citizens’ First Amendment rights were affected by the denial of a nonimmigrant visa to a Marxist journalist who had been invited to speak in the United

States); Kerry v. Din, 576 U.S. ___, No. 13–1402, slip op. (2015) (plurality and concurring opinions, taken together, suggesting that at least a majority of the Court

accepts that Kleindienst allows U.S. citizens to challenge visa denials that affect other

rights beyond their First Amendment rights).

463 See, e.g., Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 117 (2d Cir. 2009)

(“The Supreme Court has recognized a First Amendment right to ‘hear, speak, and

debate with’ a visa applicant.”); Adams v. Baker, 909 F.2d 643, 647 n.3 (1st Cir. 1990)

(“[I]t is important to recognize that the only issue which may be addressed by this

court is the possibility of impairment of United States citizens’ First Amendment

rights through the exclusion of the alien.”); Abourezk v. Reagan, 785 F.2d 1043, 1063

n.1 (D.C. Cir. 1986) (noting that the government defendants had “concede[d] that

the Supreme Court has already implicitly decided the issue of whether plaintiffs who

wish to meet with excluded aliens have standing to raise a constitutional (first amendment) claim”).

464 See, e.g., Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008).

465 576 U.S. ___, No. 13–1402, slip op. (2015).

466 Id. at 5–6 (Scalia, J., plurality opinion). According to the plurality, the U.S.

citizen spouse’s alleged interests had been variously formulated as a “liberty interest in her marriage”; a “right of association with one’s spouse”; a “liberty interest in

being reunited with certain blood relatives”; and the “liberty interest of a U.S. citizen under the Due Process Clause to be free from arbitrary restrictions on his right

to live with his spouse.” Id. at 7. The plurality also expressly noted that no fundamental right to marriage, as such, had been infringed, because “the Federal Government has not attempted to forbid a marriage.” Id. (contrasting the case at hand with

Loving v. Virginia, 388 U.S. 1 (1967)).

AMENDMENT 5—RIGHTS OF PERSONS 1553
band’s visa had been denied.467 A two-Justice concurrence did not

reach the question of whether the U.S. citizen wife had asserted a

protected liberty interest, but instead concluded that the consular

officials’ citation of 8 U.S.C. § 1182(a)(3)(B) as the basis for denying

the visa application satisfied due process under Kleindienst, which

requires only that the government state a “facially legitimate and

bona fide reason” for the denial.468

Procedural due process rights are more in evidence when it comes

to deportation or other proceedings brought against aliens already

within the country. Deportation proceedings are not criminal prosecutions within the meaning of the Bill of Rights.469 The authority

to deport is drawn from the power of Congress to regulate the entrance of aliens and impose conditions upon their continued liberty

to reside within the United States. Findings of fact reached by executive officers after a fair, though summary, deportation hearing

may be made conclusive.470 In Wong Yang Sung v. McGrath,

471 how467 Id. at 6. The plurality took issue with the dissenting Justices’ view that procedural due process rights attach to liberty interests that are not created by

nonconstitutional law, such as a statute, but are “sufficiently important” so as to

“flow ‘implicit[ly]’ from the design, object, and nature of the Due Process Clause.”

Id. at 11. According to the plurality, this view is a “novel” one that is inconsistent

with the Court’s established methodology for identifying fundamental rights that are

subject to protection under the Due Process Clause. Id. at 12.

468 Id. at 3 (Kennedy, J., concurring).

469 Harisiades v. Shaughnessy, 342 U.S. 580 (1952). But this fact does not mean

that a person may be deported on the basis of judgment reached on the civil standard of proof, that is, by a preponderance of the evidence. Rather, the Court has

held, a deportation order may only be entered if it is found by clear, unequivocal,

and convincing evidence that the facts alleged as grounds for deportation are true.

Woodby v. INS, 385 U.S. 276 (1966). Woodby, and similar rulings, were the result of

statutory interpretation and were not constitutionally compelled. Vance v. Terrazas,

444 U.S. 252, 266–67 (1980).

470 Zakonaite v. Wolf, 226 U.S. 272 (1912). See Jay v. Boyd, 351 U.S. 345 (1956),

in which the Court emphasized that suspension of deportation is not a matter of

right, but of grace, like probation or parole, and, accordingly, an alien is not entitled

to a hearing that contemplates full disclosure of the considerations (information of a

confidential nature pertaining to national security) that induced administrative officers to deny suspension. In four dissenting opinions, Chief Justice Warren, together

with Justices Black, Frankfurter, and Douglas, found irreconcilable with a fair hearing and due process the delegation by the Attorney General of his discretion to an

inferior officer and the vesting of the latter with power to deny a suspension on the

basis of undisclosed evidence that may constitute no more than uncorroborated hearsay.

471 339 U.S. 33 (1950). See also Kimm v. Rosenberg, 363 U.S. 405, 408, 410, 415

(1960), in which the Court ruled that when, at a hearing on his petition for suspension of a deportation order, an alien invoked the Fifth Amendment in response to

questions as to Communist Party membership and contended that the burden of

proving such affiliation was on the government, it was incumbent on the alien to

supply the information, as the government had no statutory discretion to suspend

deportation of a Communist. Justices Douglas, Black, Brennan, and Chief Justice

Warren dissented on the ground that exercise of the privilege is a neutral act, supporting neither innocence nor guilt and may not be used as evidence of dubious char1554 AMENDMENT 5—RIGHTS OF PERSONS
ever, the Court intimated that a hearing before a tribunal that did

not meet the standards of impartiality embodied in the Administrative Procedure Act 472 might not satisfy the requirements of due process of law. To avoid such constitutional doubts, the Court construed the law to disqualify immigration inspectors as presiding officers

in deportation proceedings. Except in time of war, deportation without a fair hearing or on charges unsupported by any evidence is a

denial of due process that may be corrected on habeas corpus.

473 In

contrast with the decision in United States v. Ju Toy 474 that a person seeking entrance to the United States was not entitled to a judicial hearing on his claim of citizenship, a person arrested and held

for deportation is entitled to his day in court if he denies that he is

an alien.475 Because aliens within the United States are protected

to some extent by due process, Congress must give “clear indication” of an intent to authorize indefinite detention of illegal aliens,

and probably must also cite “special justification,” as, for example,

for “suspected terrorists.” 476 In Demore v. Kim,

477 however, the Court

indicated that its holding in Zadvydas was quite limited. Upholding detention of permanent resident aliens without bond pending a

determination of removability, the Court reaffirmed Congress’s broad

powers over aliens. “[W]hen the government deals with deportable

aliens, the Due Process Clause does not require it to employ the

least burdensome means to accomplish its goal.” 478 A closely divided Court earlier ruled that, in time of war, the deportation of an

enemy alien may be ordered summarily by executive action; due

acter. Justice Brennan also thought the government was requiring the alien to prove

non-membership when no one had intimated that he was a Communist.

472 5 U.S.C. §§ 551 et seq.

473 Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927). See also

Mahler v. Eby, 264 U.S. 32, 41 (1924). Although, in Heikkila v. Barber, 345 U.S. 229

(1953), the Court held that a deportation order under the Immigration Act of 1917

might be challenged only by habeas corpus, in Shaughnessy v. Pedreiro, 349 U.S. 48

(1955), it established that, under the Immigration Act of 1952, 8 U.S.C. § 1101, the

validity of a deportation order also may be contested in an action for declaratory

judgment and injunctive relief. Also, a collateral challenge must be permitted to the

use of a deportation proceeding as an element of a criminal offense where effective

judicial review of the deportation order has been denied. United States v. MendozaLopez, 481 U.S. 828 (1987).

474 198 U.S. 253 (1905).

475 Ng Fung Ho v. White, 259 U.S. 276, 281 (1922).

476 Zadvydas v. Davis, 533 U.S. 678, 690–91 (2001) (construing a statute so as

to avoid a “serious constitutional problem,” id. at 699, and recognizing a “presumptively reasonable” detention period of six months for removable aliens).

477 538 U.S. 510 (2003). The goal of detention in Zadvydas had been found to be

“no longer practically attainable,” and detention therefore “no longer [bore] a reasonable relation to the purpose for which the individual was committed.” 538 U.S. at

527.

478 538 U.S. at 528. There was disagreement among the Justices as to whether

existing procedures afforded the alien an opportunity for individualized determination of danger to society and risk of flight.

AMENDMENT 5—RIGHTS OF PERSONS 1555
process of law does not require the courts to determine the sufficiency of any hearing that is gratuitously afforded to the alien.479

Judicial Review of Administrative or Military Proceedings.—To the extent that constitutional rights are involved, due process of law imports a judicial review of the action of administrative

or executive officers. This proposition is undisputed so far as questions of law are concerned, but the extent to which the courts should

and will go in reviewing determinations of fact has been a highly

controversial issue. In St. Joseph Stock Yards Co. v. United States,

480

the Court held that, upon review of an order of the Secretary of

Agriculture establishing maximum rates for services rendered by a

stockyard company, due process required that the court exercise its

independent judgment upon the facts to determine whether the rates

were confiscatory.481 Subsequent cases sustaining rate orders of the

Federal Power Commission have not dealt explicitly with this point.482

The Court has said simply that a person assailing such an order

“carries the heavy burden of making a convincing showing that it

is invalid because it is unjust and unreasonable in its consequences.” 483

There has been a division on the Court with regard to what

extent, if at all, proceedings before military tribunals should be reviewed by the courts for the purpose of determining compliance with

the Due Process Clause. In In re Yamashita,

484 the majority denied

a petition for certiorari and petitions for writs of habeas corpus to

review the conviction of a Japanese war criminal by a military commission sitting in the Philippine Islands. It held that, because the

military commission, in admitting evidence to which objection had

been made, had not violated any act of Congress, a treaty, or a military command defining its authority, its ruling on evidence and on

the mode of conducting the proceedings were not reviewable by the

courts. And, in Johnson v. Eisentrager,

485 the Court overruled a lower

court decision that, in reliance upon the dissenting opinion in

Yamashita, had held that the Due Process Clause required that the

legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of habeas corpus.

479 Ludecke v. Watkins, 335 U.S. 160 (1948). Three of the four dissenting Justices, Douglas, Murphy, and Rutledge, argued that even an enemy alien could not

be deported without a fair hearing.

480 298 U.S. 38 (1936).

481 298 U.S. at 51–54. Justices Brandeis, Stone, and Cardozo, although concurring in the result, took exception to this proposition.

482 FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944); FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1941).

483 FPC v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944).

484 327 U.S. 1 (1946).

485 339 U.S. 763 (1950). Justices Douglas, Black, and Burton dissented.

1556 AMENDMENT 5—RIGHTS OF PERSONS
Failure of the Executive Branch to provide for any type of proceeding for prisoners alleged to be “enemy combatants,” whether in

a military tribunal or a federal court, was at issue in Hamdi v.

Rumsfeld.

486 During a military action in Afghanistan,487 a United

States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch

argued that it had authority to hold such an “enemy combatant”

while providing him with limited recourse to the federal courts. The

Court agreed that the President was authorized to detain a United

States citizen seized in Afghanistan.488 However, the Court ruled

that the government may not detain the petitioner indefinitely for

purposes of interrogation, but must give him the opportunity to offer evidence that he is not an enemy combatant. At a minimum,

the petitioner must be given notice of the asserted factual basis for

holding him, must be given a fair chance to rebut that evidence

before a neutral decision-maker, and must be allowed to consult an

attorney.489

Without dissent, in Hiatt v. Brown,

490 the Court reversed the

judgment of a lower court that had discharged a prisoner serving a

sentence imposed by a court-martial because of errors that had deprived the prisoner of due process of law. The Court held that the

court below had erred in extending its review, for the purpose of

determining compliance with the Due Process Clause, to such matters as the propositions of law set forth in the staff judge advocate’s report, the sufficiency of the evidence to sustain conviction,

the adequacy of the pre-trial investigation, and the competence of

the law member and defense counsel. In summary, Justice Clark

486 542 U.S. 507 (2004).

487 In response to the September 11, 2001 terrorist attacks on New York City’s

World Trade Center and the Pentagon in Washington, D.C., Congress passed the

“Authorization for Use of Military Force,” Pub. L. 107–40, which served as the basis

for military action against the Taliban government of Afghanistan and the al Qaeda

forces that were harbored there.

488 There was no opinion of the Court in Hamdi. Rather, a plurality opinion,

authored by Justice O’Connor (joined by Chief Justice Rehnquist, Justice Kennedy

and Justice Breyer) relied on the “Authorization for Use of Military Force” passed

by Congress to support the detention. Justice Thomas also found that the Executive

Branch had the power to detain the petitioner, but he based his conclusion on Article II of the Constitution.

489 542 U.S. at 533, 539 (2004). Although only a plurality of the Court voted for

both continued detention of the petitioner and for providing these due process rights,

four other Justices would have extended due process at least this far. Justice Souter,

joined by Justice Ginsberg, while rejecting the argument that Congress had authorized such detention, agreed with the plurality as to the requirement of providing

minimal due process. Id. at 553 (concurring in part, dissenting in part, and concurring in judgement). Justice Scalia, joined by Justice Stevens, denied that such congressional authorization was possible without a suspension of the writ of habeas corpus, and thus would have required a criminal prosecution of the petitioner. Id. at

554 (dissenting).

490 339 U.S. 103 (1950).

AMENDMENT 5—RIGHTS OF PERSONS 1557
wrote: “In this case the court-martial had jurisdiction of the person

accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the

military authorities which are alone authorized to review its decision.” 491 Similarly, in Burns v. Wilson,

492 the Court denied a petition for the writ to review a conviction by a military tribunal on

the Island of Guam in which the petitioners asserted that their imprisonment resulted from proceedings that violated their constitutional rights. Four Justices, with whom Justice Minton concurred,

maintained that judicial review is limited to determining whether

the military tribunal, or court-martial, had given fair consideration

to each of petitioners’ allegations, and does not embrace an opportunity “to prove de novo” what petitioners had “failed to prove in

the military courts.” According to Justice Minton, however, if the

military court had jurisdiction, its action is not reviewable.

Substantive Due Process

Justice Harlan, dissenting in Poe v. Ullman,

493 observed that

one view of due process, “ably and insistently argued . . . , sought

to limit the provision to a guarantee of procedural fairness.” But,

he continued, due process “in the consistent view of this Court has

ever been a broader concept . . . . Were due process merely a procedural safeguard it would fail to reach those situations where the

deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest

possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. . . . Thus the guaranties of due

process, though having their roots in Magna Carta’s ‘per legem terrae ‘ and considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in this country ‘become bulwarks also against

arbitrary legislation.’ ”

Discrimination.— Literally speaking, the Fifth Amendment,

unlike the Fourteenth Amendment, “contains no equal protection

clause and it provides no guaranty against discriminatory legislation by Congress.” 494 Nevertheless, “Equal protection analysis in the

Fifth Amendment area is the same as that under the Fourteenth

491 339 U.S. at 111.

492 346 U.S. 137 (1953).

493 367 U.S. 497, 540, 541 (1961). The internal quotation is from Hurtado v. California, 110 U.S. 516, 532 (1884). Development of substantive due process is briefly

noted above under “Scope of the Guaranty” and is treated more extensively under

the Fourteenth Amendment.

494 Detroit Bank v. United States, 317 U.S. 329, 337 (1943); Helvering v. Lerner

Stores Corp., 314 U.S. 463, 468 (1941).

1558 AMENDMENT 5—RIGHTS OF PERSONS
Amendment.” 495 Even before the Court reached this position, it had

assumed that “discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and

annulment.” 496 The theory that was to prevail seems first to have

been enunciated by Chief Justice Taft, who observed that the Due

Process and Equal Protection Clauses are “associated” and that “[i]t

may be that they overlap, that a violation of one may involve at

times the violation of the other, but the spheres of the protection

they offer are not coterminous. . . . [Due process] tends to secure

equality of law in the sense that it makes a required minimum of

protection for every one’s right of life, liberty and property, which

the Congress or the legislature may not withhold. Our whole system of law is predicated on the general, fundamental principle of

equality of application of the law.” 497 Thus, in Bolling v. Sharpe,

498

a companion case to Brown v. Board of Education,

499 the Court held

that segregation of pupils in the public schools of the District of

Columbia violated the Due Process Clause. “The Fifth Amendment,

which is applicable in the District of Columbia, does not contain an

equal protection clause as does the Fourteenth Amendment which

applies only to the states. But the concepts of equal protection and

due process, both stemming from our American ideal of fairness,

are not mutually exclusive. The ‘equal protection of the laws’ is a

more explicit safeguard of prohibited unfairness than ‘due process

of law,’ and, therefore, we do not imply that the two are always

interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.”

“Although the Court has not assumed to define ‘liberty’ with any

great precision, that term is not confined to mere freedom from bodily

restraint. Liberty under law extends to the full range of conduct

which the individual is free to pursue, and it cannot be restricted

except for a proper governmental objective. Segregation in public

education is not reasonably related to any proper governmental objective and thus it imposes on Negro children of the District of Co495 Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S.

636, 638 n.2 (1975); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214–18 (1995).

496 Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937). See also Currin v.

Wallace, 306 U.S. 1, 13–14 (1939).

497 Truax v. Corrigan, 257 U.S. 312, 331 (1921). See also Hirabayashi v. United

States, 320 U.S. 81, 100 (1943).

498 347 U.S. 497, 499–500 (1954).

499 347 U.S. 483 (1954). With respect to race discrimination, the Court had earlier utilized its supervisory authority over the lower federal courts and its power to

construe statutes to reach results it might have based on the Equal Protection Clause

if the cases had come from the states. E.g., Hurd v. Hodge, 334 U.S. 24 (1948); Steele

v. Louisville & Nashville R.R., 323 U.S. 192 (1944); Railroad Trainmen v. Howard,

343 U.S. 768 (1952). See also Thiel v. Southern Pacific Co., 328 U.S. 217 (1946).

AMENDMENT 5—RIGHTS OF PERSONS 1559
lumbia a burden that constitutes an arbitrary deprivation of their

liberty in violation of the Due Process Clause.”

“In view of our decision that the Constitution prohibits the states

from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty

on the Federal Government.”

In subsequent cases, the Court has applied its Fourteenth Amendment jurisprudence to federal legislation that contained classifications based on sex 500 and illegitimacy,501 and that set standards of

eligibility for food stamps.502 However, almost all legislation involves some degree of classification among particular categories of

persons, things, or events, and, just as the Equal Protection Clause

itself does not outlaw “reasonable” classifications, neither is the Due

Process Clause any more intolerant of the great variety of social

and economic legislation typically containing what must be arbitrary line-drawing.503 Thus, for example, the Court has sustained a

law imposing greater punishment for an offense involving rights of

property of the United States than for a like offense involving the

rights of property of a private person.504 A veterans law that extended certain educational benefits to all veterans who had served

“on active duty” and thereby excluded conscientious objectors from

eligibility was held to be sustainable, its being rational for Congress to have determined that the disruption caused by military service was qualitatively and quantitatively different from that caused

by alternative service, and for Congress to have so provided to make

military service more attractive.505

500 Frontiero v. Richardson, 411 U.S. 677 (1973); Califano v. Goldfarb, 430 U.S.

199 (1977). But see Rostker v. Goldberg, 453 U.S. 57 (1981); Califano v. Jobst, 434

U.S. 47 (1977).

501 Compare Jiminez v. Weinberger, 417 U.S. 628 (1974), with Mathews v. Lucas,

427 U.S. 495 (1976).

502 Department of Agriculture v. Murry, 413 U.S. 508 (1973). See also Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

503 Richardson v. Belcher, 404 U.S. 78, 81 (1971); FCC v. Beach Communications, 508 U.S. 307 (1993) (exemption from cable TV regulation of facilities that serve

only dwelling units under common ownership); Lyng v. Castillo, 477 U.S. 635 (1986)

(Food Stamp Act limitation of benefits to households of related persons who prepare

meals together). With respect to courts and criminal legislation, see Hurtado v. United

States, 410 U.S. 578 (1973); Marshall v. United States, 414 U.S. 417 (1974); United

States v. MacCollom, 426 U.S. 317 (1976).

504 Hill v. United States ex rel. Weiner, 300 U.S. 105, 109 (1937). See also District of Columbia v. Brooke, 214 U.S. 138 (1909); Panama R.R. v. Johnson, 264 U.S.

375 (1924); Detroit Bank v. United States, 317 U.S. 329 (1943).

505 Johnson v. Robison, 415 U.S. 361 (1974). See also Schlesinger v. Ballard, 419

U.S. 498 (1975) (military law that classified men more adversely than women deemed

rational because it had the effect of compensating for prior discrimination against

women). Wayte v. United States, 470 U.S. 598 (1985) (selective prosecution of persons who turned themselves in or were reported by others as having failed to regis1560 AMENDMENT 5—RIGHTS OF PERSONS
“The federal sovereign, like the States, must govern impartially. . . . [B]ut . . . there may be overriding national interests which

justify selective federal legislation that would be unacceptable for

an individual State.” 506 The paramount federal power over immigration and naturalization is the principal example, although there

are undoubtedly others, of the national government’s being able to

classify upon some grounds—alienage, naturally, but also other suspect and quasi-suspect categories as well—that would result in invalidation were a state to enact them. The instances may be relatively few, but they do exist.

Congressional Police Measures.—Numerous regulations of a

police nature, imposed under powers specifically granted to the Federal Government, have been sustained over objections based on the

Due Process Clause. Congress may require the owner of a vessel

entering United States ports, and on which alien seamen are afflicted with specified diseases, to bear the expense of hospitalizing

such persons.507 It may prohibit the transportation in interstate commerce of filled milk 508 or the importation of convict-made goods into

any state where their receipt, possession, or sale is a violation of

local law.509 It may require employers to bargain collectively with

representatives of their employees chosen in a manner prescribed

by law, to reinstate employees discharged in violation of law, and

to permit use of a company-owned hall for union meetings.510 Subject to First Amendment considerations, Congress may regulate the

postal service to deny its facilities to persons who would use them

for purposes contrary to public policy.511

ter for the draft does not deny equal protection, there being no showing that these

men were selected for prosecution because of their protest activities).

506 Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Thus, the power over

immigration and aliens permitted federal discrimination on the basis of alienage,

Hampton, supra (employment restrictions like those previously voided when imposed by states), durational residency, Mathews v. Diaz, 426 U.S. 67 (1976) (similar

rules imposed by states previously voided), and illegitimacy, Fiallo v. Bell, 430 U.S.

787 (1977) (similar rules by states would be voided). Racial preferences and discriminations in immigration have had a long history, e.g., The Chinese Exclusion Case,

130 U.S. 581 (1889), and the power continues today, e.g., Dunn v. INS, 499 F.2d

856, 858 (9th Cir. 1974), cert. denied, 419 U.S. 1106 (1975); Narenji v. Civiletti, 617

F.2d 745, 748 (D.C. Cir. 1979), cert. denied, 446 U.S. 957 (1980), although Congress

has removed most such classifications from the statute books.

507 United States v. New York S.S. Co., 269 U.S. 304 (1925).

508 United States v. Carolene Products Co., 304 U.S. 144 (1938); Carolene Products Co. v. United States, 323 U.S. 18 (1944).

509 Kentucky Whip & Collar Co. v. Illinois Cent. R.R., 299 U.S. 334 (1937).

510 E.g., Virginian Ry. v. System Federation No. 40, 300 U.S. 515 (1937); NLRB

v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Railway Employes’ Dep’t v. Hanson,

351 U.S. 225 (1956); NLRB v. Stowe Spinning Co., 336 U.S. 226 (1949); NLRB v.

Mackay Radio & Tel. Co., 304 U.S. 333 (1938).

511 Ex parte Jackson, 96 U.S. 727 (1878); Rowan v. Post Office Dep’t, 397 U.S.

728 (1970).

AMENDMENT 5—RIGHTS OF PERSONS 1561
Congressional Regulation of Public Utilities.—Inasmuch as

Congress, in giving federal agencies jurisdiction over various public

utilities, usually has prescribed standards substantially identical with

those by which the Supreme Court has tested the validity of state

action, the review of agency orders seldom has turned on constitutional issues. In two cases, however, maximum rates prescribed by

the Secretary of Agriculture for stockyard companies were sustained only after detailed consideration of numerous items excluded from the rate base or from operating expenses, apparently

on the assumption that error with respect to any such item would

render the rates confiscatory and void.512 A few years later, in FPC

v. Hope Natural Gas Co.,

513 the Court adopted an entirely different

approach. It held that the validity of the Commission’s order depended upon whether the impact or total effect of the order is just

and reasonable, rather than upon the method of computing the rate

base. Rates that enable a company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its

investors for the risks assumed cannot be condemned as unjust and

unreasonable even though they might produce only a meager return in a rate base computed by the “present fair value” method.

Orders prescribing the form and contents of accounts kept by

public utility companies,514 and statutes requiring a private carrier

to furnish the Interstate Commerce Commission with information

for valuing its property,515 have been sustained against the objection that they were arbitrary and invalid. An order of the Secretary of Commerce directed to a single common carrier by water requiring it to file a summary of its books and records pertaining to

its rates was also held not to violate the Fifth Amendment.516

Congressional Regulation of Railroads.—Legislation and administrative orders pertaining to railroads have been challenged repeatedly under the Due Process Clause, but seldom with success.

Orders of the Interstate Commerce Commission establishing through

routes and joint rates have been sustained,517 as has the Commission’s division of joint rates to give a weaker group of carriers a

512 St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936); Denver Union

Stock Yards Co. v. United States, 304 U.S. 470 (1938).

513 320 U.S. 591 (1944). The result of this case had been foreshadowed by the

opinion of Justice Stone in FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942),

to the effect that the Commission was not bound to use any single formula or combination of formulas in determining rates.

514 A. T. & T. Co. v. United States, 299 U.S. 232 (1936); United States v. Ne w

York Tel. Co., 326 U.S. 638 (1946); Northwestern Co. v. FPC, 321 U.S. 119 (1944).

515 Valvoline Oil Co. v. United States, 308 U.S. 141 (1939); Champlin Rfg. Co. v.

United States, 329 U.S. 29 (1946).

516 Isbrandtsen-Moller Co. v. United States, 300 U.S. 146 (1937).

517 St. Louis S.W. Ry. v. United States, 245 U.S. 136, 143 (1917).

1562 AMENDMENT 5—RIGHTS OF PERSONS
greater share of such rates where the proportion allotted to the stronger group was adequate to avoid confiscation.518 The recapture of

one-half of the earnings of railroads in excess of a fair net operating income, such recaptured earnings to be available as a revolving

fund for loans to weaker roads, was held valid on the ground that

any carrier earning an excess held it as trustee.519 An order enjoining certain steam railroads from discriminating against an electric

railroad by denying it reciprocal switching privileges did not violate the Fifth Amendment even through its practical effect was to

admit the electric road to a part of the business being adequately

handled by the steam roads.520 Similarly, the fact that a rule concerning the allotment of coal cars operated to restrict the use of

private cars did not amount to a taking of property.521 Railroad companies were not denied due process of law by a statute forbidding

them to transport in interstate commerce commodities that they manufactured, mined, or produced.522 An order approving a lease of one

railroad by another, upon condition that displaced employees of the

lessor should receive partial compensation for the loss suffered by

reason of the lease,523 is consonant with due process of law. A law

prohibiting the issuance of free passes was held constitutional even

as applied to abolish rights created by a prior agreement by which

the carrier bound itself to issue such passes annually for life, in

settlement of a claim for personal injuries.524 A non-arbitrary Interstate Commerce Commission order establishing a non-compensatory

rate for carriage of certain commodities does not violate the Due

Process or Just Compensation Clauses as long as it serves the public interest and the rates as a whole yield just compensation.525

Occasionally, however, regulatory action has been held invalid

under the Due Process Clause. An order issued by the Interstate

Commerce Commission relieving short line railroads from the obligation to pay the usual fixed sum per day rental for cars used on

foreign roads for a space of two days was held to be arbitrary and

invalid.526 A retirement act that made eligible for pensions all persons who had been in the service of any railroad within one year

prior to the adoption of the law, counted past unconnected service

of an employee toward the requirement for a pension even if the

518 New England Divisions Case, 261 U.S. 184 (1923).

519 Dayton-Goose Creek Ry. v. United States, 263 U.S. 456, 481, 483 (1924).

520 Chicago, I. & L. Ry. v. United States, 270 U.S. 287 (1926). Cf. Seaboard Air

Line Ry. v. United States, 254 U.S. 57 (1920).

521 Assigned Car Cases, 274 U.S. 564, 575 (1927).

522 United States v. Delaware & Hudson Co., 213 U.S. 366, 405, 411, 415 (1909).

523 United States v. Lowden, 308 U.S. 225 (1939).

524 Louisville & Nashville R.R. v. Mottley, 219 U.S. 467 (1911).

525 Baltimore & Ohio R.R. v. United States, 345 U.S. 146 (1953).

526 Chicago, R.I. & P. Ry. v. United States, 284 U.S. 80 (1931).

AMENDMENT 5—RIGHTS OF PERSONS 1563
employee had contributed nothing to the pension fund, and treated

all carriers as a single employer and pooled their assets, without

regard to their individual obligations, was held unconstitutional.527

Taxation.—In laying taxes, the Federal Government is less narrowly restricted by the Fifth Amendment than are the states by the

Fourteenth. The Federal Government may tax property belonging

to its citizens, even if such property is never situated within the

jurisdiction of the United States,528 and it may tax the income of a

citizen resident abroad, which is derived from property located at

his residence.529 The difference is explained by the fact that protection of the Federal Government follows the citizen wherever he goes,

whereas the benefits of state government accrue only to persons and

property within the state’s borders. The Supreme Court has said

that, in the absence of an equal protection clause, “a claim of unreasonable classification or inequality in the incidence or application

of a tax raises no question under the Fifth Amendment. . . .” 530 It

has sustained, over charges of unfair differentiation between persons, a graduated income tax,531 a higher tax on oleomargarine than

on butter,532 an excise tax on “puts” but not on “call,” 533 a tax on

the income of business operated by corporations but not on similar

enterprises carried on by individuals,534 an income tax on foreign

corporations, based on their income from sources within the United

States, while domestic corporations were taxed on income from all

sources,535 a tax on foreign-built but not upon domestic yachts,536 a

tax on employers of eight or more persons, with exemptions for agricultural labor and domestic service,537 a gift tax law embodying a

plan of graduations and exemptions under which donors of the same

amount might be liable for different sums,538 an Alaska statute imposing license taxes only on nonresident fisherman,539 an act that

taxed the manufacture of oil and fertilizer from herring at a higher

527 Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330 (1935). But cf. Usery v.

Turner Elkhorn Mining Co., 428 U.S. 1, 19 (1976).

528 United States v. Bennett, 232 U.S. 299, 307 (1914).

529 Cook v. Tait, 265 U.S. 47 (1924).

530 Helvering v. Lerner Stores Co., 314 U.S. 463, 468 (1941). But see discussion

of “Discrimination” supra.

531 Brushaber v. Union Pac. R.R, 240 U.S. 1, 24 (1916).

532 McCray v. United States, 195 U.S. 27, 61 (1904).

533 Treat v. White, 181 U.S. 264 (1901).

534 Flint v. Stone Tracy Co., 220 U.S. 107 (1911).

535 National Paper Co. v. Bowers, 266 U.S. 373 (1924).

536 Billings v. United States, 232 U.S. 261, 282 (1914).

537 Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301

U.S. 619 (1937).

538 Bromley v. McCaughn, 280 U.S. 124 (1929).

539 Haavik v. Alaska Packers Ass’n, 263 U.S. 510 (1924).

1564 AMENDMENT 5—RIGHTS OF PERSONS
rate than similar processing of other fish or fish offal,540 an excess

profits tax that defined “invested capital” with reference to the original cost of the property rather than to its present value,541 an undistributed profits tax in the computation of which special credits

were allowed to certain taxpayers,542 an estate tax upon the estate

of a deceased spouse in respect of the moiety of the surviving spouse

where the effect of the dissolution of the community is to enhance

the value of the survivor’s moiety,543 and a tax on nonprofit mutual

insurers, even though such insurers organized before a certain date

were exempt, as there was a rational basis for the discrimination.544

Retroactive Taxes.—It has been customary from the beginning for Congress to give some retroactive effect to its tax laws,

usually making them effective from the beginning of the tax year

or from the date of introduction of the bill that became the law.545

Application of an income tax statute to the entire calendar year in

which enactment took place has never, barring some peculiar circumstance, been deemed to deny due process.546 “Taxation is neither a penalty imposed on the taxpayer nor a liability which he assumes by contract. It is but a way of apportioning the cost of

government among those who in some measure are privileged to

enjoy its benefits and must bear its burdens. Since no citizen enjoys immunity from that burden, its retroactive imposition does not

necessarily infringe due process, and to challenge the present tax

it is not enough to point out that the taxable event, the receipt of

income, antedated the statute.” 547 A special income tax on profits

realized by the sale of silver, retroactive for 35 days, which was approximately the period during which the silver purchase bill was

before Congress, was held valid.548 An income tax law, made retroactive to the beginning of the calendar year in which it was ad540 Alaska Fish Co. v. Smith, 255 U.S. 44 (1921).

541 LaBelle Iron Works v. United States, 256 U.S. 377 (1921).

542 Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940).

543 Fernandez v. Wiener, 326 U.S. 340 (1945); cf. Coolidge v. Long, 282 U.S. 582

(1931).

544 United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4 (1970) (per

curiam).

545 United States v. Darusmont, 449 U.S. 292, 296–97 (1981).

546 Stockdale v. Insurance Companies, 87 U.S. (20 Wall.) 323, 331, 332 (1874);

Brushaber v. Union Pac. R.R., 240 U.S. 1, 20 (1916); Cooper v. United States, 280

U.S. 409, 411 (1930); Milliken v. United States, 283 U.S. 15, 21 (1931); Reinecke v.

Smith, 289 U.S. 172, 175 (1933); United States v. Hudson, 299 U.S. 498, 500–01

(1937); Welch v. Henry, 305 U.S. 134, 146, 148–50 (1938); Fernandez v. Wiener, 326

U.S. 340, 355 (1945); United States v. Darusmont, 449 U.S. 292, 297 (1981).

547 Welch v. Henry, 305 U.S. 134, 146–47 (1938).

548 United States v. Hudson, 299 U.S. 498 (1937). See also Stockdale v. Insurance Companies, 87 U.S. (20 Wall.) 323, 331, 341 (1874); Brushaber v. Union Pac.

R.R., 240 U.S. 1, 20 (1916); Lynch v. Hornby, 247 U.S. 339, 343 (1918).

AMENDMENT 5—RIGHTS OF PERSONS 1565
opted, was found constitutional as applied to the gain from the sale,

shortly before its enactment, of property received as a gift during

the year.549 Retroactive assessment of penalties for fraud or negligence,550 or of an additional tax on the income of a corporation used

to avoid a surtax on its shareholder,551 does not deprive the taxpayer of property without due process of law.

An additional excise tax imposed upon property still held for

sale, after one excise tax had been paid by a previous owner, does

not violate the Due Process Clause.552 Similarly upheld were a transfer tax measured in part by the value of property held jointly by a

husband and wife, including that which comes to the joint tenancy

as a gift from the decedent spouse 553 and the inclusion in the gross

income of the settlor of income accruing to a revocable trust during

any period when the settlor had power to revoke or modify it.554

Although the Court during the 1920s struck down gift taxes imposed retroactively upon gifts that were made and completely vested

before the enactment of the taxing statute,555 those decisions have

recently been distinguished, and their precedential value limited.556 In United States v. Carlton, the Court declared that “[t]he

due process standard to be applied to tax statutes with retroactive

effect . . . is the same as that generally applicable to retroactive

economic legislation”—retroactive application of legislation must be

shown to be “ ‘justified by a rational legislative purpose.’ ” 557 Applying that principle, the Court upheld retroactive application of a 1987

549 Cooper v. United States, 280 U.S. 409 (1930); see also Reinecke v. Smith,

289 U.S. 172 (1933).

550 Helvering v. Mitchell, 303 U.S. 391 (1938).

551 Helvering v. National Grocery Co., 304 U.S. 282 (1938).

552 Patton v. Brady, 184 U.S. 608 (1902).

553 Tyler v. United States, 281 U.S. 497 (1930); United States v. Jacobs, 306 U.S.

363 (1939).

554 Reinecke v. Smith, 289 U.S. 172 (1933).

555 Untermyer v. Anderson, 276 U.S. 440 (1928); Blodgett v. Holden, 275 U.S.

142 (1927), modified, 276 U.S. 594 (1928); Nichols v. Coolidge, 274 U.S. 531 (1927).

See also Heiner v. Donnan, 285 U.S. 312 (1932) (invalidating as arbitrary and capricious a conclusive presumption that gifts made within two years of death were made

in contemplation of death).

556 Untermyer was distinguished in United States v. Hemme, 476 U.S. 558, 568

(1986), upholding retroactive application of unified estate and gift taxation to a taxpayer as to whom the overall impact was minimal and not oppressive. All three cases

were distinguished in United States v. Carlton, 512 U.S. 26, 30 (1994), as having

been “decided during an era characterized by exacting review of economic legislation under an approach that ‘has long since been discarded.’ ” The Court noted further that Untermyer and Blodgett had been limited to situations involving creation

of a wholly new tax, and that Nichols had involved a retroactivity period of 12 years.

Id.

557 512 U.S. 26, 30, 31 (1994) (quoting Usery v. Turner Elkhorn Mining Co., 428

U.S. 1, 16–17 (1976)). These principles apply to estate and gift taxes as well as to

income taxes, the Court added. 512 U.S. at 34.

1566 AMENDMENT 5—RIGHTS OF PERSONS
amendment limiting application of a federal estate tax deduction

originally enacted in 1986. Congress’s purpose was “neither illegitimate nor arbitrary,” the Court noted, since Congress had acted “to

correct what it reasonably viewed as a mistake in the original 1986

provision that would have created a significant and unanticipated

revenue loss.” Also, “Congress acted promptly and established only

a modest period of retroactivity.” The fact that the taxpayer had

transferred stock in reliance on the original enactment was not dispositive, since “[t]ax legislation is not a promise, and a taxpayer has

no vested right in the Internal Revenue Code.” 558

Deprivation of Property: Retroactive Legislation.—Federal

regulation of future action, based upon rights previously acquired

by the person regulated, is not prohibited by the Constitution. So

long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously

acquired rights does not ordinarily condemn it. The imposition upon

coal mine operators, and ultimately coal consumers, of the liability

of compensating former employees, who had terminated work in the

industry before passage of the law, for black lung disabilities contracted in the course of their work, was sustained by the Court as

a rational measure to spread the costs of the employees’ disabilities to those who had profited from the fruits of their labor.559 Legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations, but it must take account

of the realities previously existing, i.e., that the danger may not

have been known or appreciated, or that actions might have been

taken in reliance upon the current state of the law; therefore, legislation imposing liability on the basis of deterrence or of blameworthiness might not have passed muster. The Court has applied Turner

Elkhorn in upholding retroactive application of pension plan termination provisions to cover the period of congressional consideration, declaring that the test for retroactive application of legislation adjusting economic burdens is merely whether “the retroactive

application . . . is itself justified by a rational legislative purpose.” 560

558 512 U.S. at 33.

559 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14–20 (1976). But see id. at

38 (Justice Powell concurring) (questioning application of retroactive costspreading).

560 Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984).

Accord, United States v. Sperry Corp., 493 U.S. 52, 65 (1989) (upholding imposition

of user fee on claimants paid by Iran-United States Claims Tribunal prior to enactment of fee statute). Concrete Pipe & Products v. Construction Laborers Pension

Trust, 508 U.S. 602, 636–41 (1993) (imposition of multiemployer pension plan withdrawal liability on an employer is not irrational, even though none of its employees

AMENDMENT 5—RIGHTS OF PERSONS 1567
Rent regulations were sustained as applied to prevent execution of a judgment of eviction rendered by a state court before the

enabling legislation was passed.561 For the reason that “those who

do business in the regulated field cannot object if the legislative scheme

is buttressed by subsequent amendments to achieve the legislative

end,” no vested right to use housing, built with the aid of FHA mortgage insurance for transient purposes, was acquired by one obtaining insurance under an earlier section of the National Housing Act,

which, though silent in this regard, was contemporaneously construed as barring rental to transients, and was later modified by

an amendment that expressly excluded such use.562 An order by an

Area Rent Director reducing an unapproved rental and requiring

the landlord to refund the excess previously collected, was held, with

one dissenting vote, not to be the type of retroactivity which is condemned by law.563 The application of a statute providing for tobacco marketing quotas, to a crop planted prior to its enactment,

was held not to deprive the producers of property without due process of law, because it operated not upon production, but upon the

marketing of the product after the act was passed.564

In the exercise of its comprehensive powers over revenue, finance, and currency, Congress may make Treasury notes legal tender in payment of debts previously contracted 565 and may invalidate provisions in private contracts calling for payment in gold coin,566

but rights against the United States arising out of contract are more

had earned vested benefits by the time of withdrawal). In Eastern Enterprises v.

Apfel, 524 U.S. 498 (1998), the challenge was to a statutory requirement that companies formerly engaged in mining pay miner retiree health benefits, as applied to

a company that had placed its mining operations in a wholly owned subsidiary three

decades earlier, before labor agreements included an express promise of lifetime benefits. In a fractured opinion, the justices ruled 5–4 that the scheme’s severe retroactive effect offended the Constitution, though differing on the governing clause. Four

of the majority justices based the judgment solely on takings law, while opining that

“there is a question” whether the statute violated due process as well. The remaining majority justice, and the four dissenters, viewed substantive due process as the

sole appropriate framework for resolving the case, but disagreed on whether a violation had occurred.

561 Fleming v. Rhodes, 331 U.S. 100, 107 (1947).

562 FHA v. The Darlington, Inc., 358 U.S. 84, 89–91, 92–93 (1958). Dissenting,

Justices Harlan, Frankfurter, and Whittaker maintained that under the Due Process Clause the United States, in its contractual relations, is bound by the same

rules as private individuals unless the action taken falls within the general federal

regulatory power.

563 Woods v. Stone, 333 U.S. 472 (1948).

564 Mulford v. Smith, 307 U.S. 38 (1939). An increase in the penalty for production of wheat in excess of quota was valid as applied retroactively to wheat already

planted, where Congress concurrently authorized a substantial increase in the amount

of the loan that might be made to cooperating farmers upon stored “farm marketing

excess wheat.” Wickard v. Filburn, 317 U.S. 111, 133 (1942).

565 Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 551 (1871).

566 Norman v. Baltimore & O R.R., 294 U.S. 240 (1935).

1568 AMENDMENT 5—RIGHTS OF PERSONS
strongly protected by the Due Process Clause. Hence, a law purporting to abrogate a clause in government bonds calling for payment

in gold coin was invalid,567 and a statute abrogating contracts of

war risk insurance was held unconstitutional as applied to outstanding policies.568

The Due Process Clause has been successfully invoked to defeat retroactive invasion or destruction of property rights in a few

cases. A revocation by the Secretary of the Interior of previous approval of plats and papers showing that a railroad was entitled to

land under a grant was held void as an attempt to deprive the company of its property without due process of law.569 The exception of

the period of federal control from the time limit set by law upon

claims against carriers for damages caused by misrouting of goods,

was read as prospective only because the limitation was an integral part of the liability, not merely a matter of remedy, and would

violate the Fifth Amendment if retroactive.570

Bankruptcy Legislation.—In acting pursuant to its power to

enact uniform bankruptcy legislation, Congress has regularly authorized retrospective impairment of contractual obligations,571 but the

Due Process Clause (by itself or infused with takings principles) constitutes a limitation upon Congress’s power to deprive persons of

more secure forms of property, such as the rights secured creditors

have to obtain repayment of a debt. The Court had long followed a

rule of construction favoring prospective-only application of bankruptcy laws, absent a clear showing of congressional intent,572 but

it was not until 1935 that the Court actually held unconstitutional

a retrospective law. Struck down by the Court was the FrazierLemke Act, which by its terms applied only retrospectively, and which

567 Perry v. United States, 294 U.S. 330 (1935).

568 Lynch v. United States, 292 U.S. 571 (1934). See also De La Rama S.S. Co.

v. United States, 344 U.S. 386 (1953). Notice that these kinds of cases are precisely

the ones that would be condemned under the Contract Clause, even under the relaxed scrutiny now employed, if the action were taken by a state. E.g., United States

Trust Co. v. New Jersey, 431 U.S. 1 (1977). “Less searching standards” are imposed

by the Due Process Clauses than by the Contract Clause. Pension Benefit Guaranty

Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984). Also, statutory reservation of

the right to amend an agreement can defuse most such constitutional issues. Bowen

v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41 (1986) (amendment of Social Security Act to prevent termination by state when termination notice

already filed). The Court has addressed similar issues under breach of contract theory.

United States v. Winstar Corp., 518 U.S. 839 (1996).

569 Noble v. Union River Logging R.R., 147 U.S. 165 (1893).

570 Danzer Co. v. Gulf R.R., 268 U.S. 633 (1925).

571 E.g., Hanover National Bank v. Moyses, 186 U.S. 181, 188 (1902); Continental Illinois Nat’l Bank & Trust Co. v. Chicago, R.I. & P. Ry., 294 U.S. 648, 673–75

(1935).

572 Holt v. Henley, 232 U.S. 637, 639–40 (1914). See also Auffm’ordt v. Rasin,

102 U.S. 620, 622 (1881).

AMENDMENT 5—RIGHTS OF PERSONS 1569
authorized a court to stay proceedings for the foreclosure of a mortgage for five years, the debtor to remain in possession at a reasonable rental, with the option of purchasing the property at its appraised value at the end of the stay. The Act offended the Fifth

Amendment, the Court held, because it deprived the creditor of substantial property rights acquired prior to the passage of the act.573

However, a modified law, under which the stay was subject to termination by the court and which continued the right of the creditor to have the property sold to pay the debt, was sustained.574

The sale of collateral under the terms of a contract may be enjoined without violating the Due Process Clause, if such sale would

hinder the preparation or consummation of a proposed railroad reorganization, provided the injunction does no more than delay the

enforcement of the contract.575 A provision that claims resulting from

rejection of an unexpired lease should be treated as on a parity with

provable debts, but limited to an amount equal to three years rent,

was held not to amount to a taking of property without due process of law, since it provided a new and more certain remedy for a

limited amount, in lieu of an existing remedy inefficient and uncertain in result.576 A right of redemption allowed by state law upon

foreclosure of a mortgage was unavailing to defeat a plan for reorganization of a debtor corporation where the trial court found that

the claims of junior lienholders had no value.577

Right to Sue the Government.—A right to sue the government on a contract is a privilege, not a property right protected by

the Constitution.578 The right to sue for recovery of taxes paid may

be conditioned upon an appeal to the Commissioner and his refusal

to refund.579 There was no denial of due process when Congress took

away the right to sue for recovery of taxes, where the claim for recovery was without substantial equity, having arisen from the mis573 Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).

574 Wright v. Vinton Branch, 300 U.S. 440 (1937). The relatively small modifications that the Court accepted as making the difference in validity, and the fact that

subsequently the Court interpreted the statute so as to make smaller the modifications, John Hancock Mut. Life Ins. Co. v. Bartels, 308 U.S. 180, 184 & n.3 (1939);

Wright v. Union Central Ins. Co., 311 U.S. 273, 278–79 (1940), has created differences of opinion with respect to whether Radford remains sound law. Cf. Helvering

v. Griffiths, 318 U.S. 371, 400–01 & n.52 (1943) (suggesting Radford might not have

survived Vinton Branch).

575 Continental Illinois Nat’l Bank & Trust Co. v. Chicago, R.I. & P. Ry., 294

U.S. 648 (1935).

576 Kuchner v. Irving Trust Co., 299 U.S. 445 (1937).

577 In re 620 Church Street Corp., 299 U.S. 24 (1936). In the context of Congress’s plan to save major railroad systems, see Regional Rail Reorganization Act

Cases, 419 U.S. 102 (1974).

578 Lynch v. United States, 292 U.S. 571, 581 (1934).

579 Dodge v. Osborn, 240 U.S. 118 (1916).

1570 AMENDMENT 5—RIGHTS OF PERSONS
take of administrative officials in allowing the statute of limitations to run before collecting a tax.580 The denial to taxpayers of

the right to sue for refund of processing and floor stock taxes collected under a law subsequently held unconstitutional, and the substitution of a new administrative procedure for the recovery of such

sums, was held valid.581 Congress may cut off the right to recover

taxes illegally collected by ratifying their imposition and collection,

where it could lawfully have authorized such exactions prior to their

collection.582

Congressional Power to Abolish Common Law Judicial Actions.—Similarly, it is clearly settled that “[a] person has no property, no vested interest, in any rule of the common law.” 583 It follows, therefore, that Congress in its discretion may abolish commonlaw actions, replacing them with other judicial actions or with

administrative remedies at its discretion. There is slight intimation in some of the cases that if Congress does abolish a common

law action it must either duplicate the recovery or provide a reasonable substitute remedy.584 Such a holding seems only remotely likely,585

but some difficulties may be experienced with respect to legislation

that retrospectively affects rights to sue, such as shortening or lengthening statutes of limitation, and the like, although these have typically arisen in state contexts. In one decision, the Court sustained

an award of additional compensation under the Longshoremen’s and

Harbor Workers’ Compensation Act, made pursuant to a private act

of Congress passed after expiration of the period for review of the

original award, directing the Commission to review the case and

issue a new order, the challenge being made by the employer and

insurer.586

Deprivation of Liberty: Economic Legislation.—The proscription of deprivation of liberty without due process, insofar as substantive due process was involved, was long restricted to invoca580 Graham & Foster v. Goodcell, 282 U.S. 409 (1931).

581 Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937).

582 United States v. Heinszen & Co., 206 U.S. 370, 386 (1907).

583 Second Employers’’ Liability Cases, 223 U.S. 1, 50 (1912). See also Silver v.

Silver, 280 U.S. 117, 122 (1929) (a state case).

584 The intimation stems from New York Cent. R.R. v. White, 243 U.S. 188 (1917)

(a state case, involving the constitutionality of a workmen’s compensation law). While

denying any person’s vested interest in the continuation of any particular right to

sue, id. at 198, the Court did seem twice to suggest that abolition without a reasonable substitute would raise due process problems. Id. at 201. In Duke Power Co. v.

Carolina Envtl. Study Group, 438 U.S. 59, 87–92 (1978), it noticed the contention

but passed it by because the law at issue was a reasonable substitute.

585 It is more likely with respect to congressional provision of a statutory substitute for a cause of action arising directly out of a constitutional guarantee. E.g.,

Carlson v. Green, 446 U.S. 14, 18–23 (1980).

586 Paramino Co. v. Marshall, 309 U.S. 370 (1940).

AMENDMENT 5—RIGHTS OF PERSONS 1571
tion against legislation deemed to abridge liberty of contract.587 The

two leading cases invalidating federal legislation, however, have both

been overruled, as the Court adopted a very restrained standard of

review of economic legislation.588 The Court’s hands-off policy with

regard to reviewing economic legislation is quite pronounced.589

NATIONAL EMINENT DOMAIN POWER

Overview

“The Fifth Amendment to the Constitution says ‘nor shall private property be taken for public use, without just compensation.’

This is a tacit recognition of a preexisting power to take private

property for public use, rather than a grant of new power.” 590 Eminent domain “appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.” 591 In the early years of the nation the federal power of eminent

domain lay dormant as to property outside the District of Columbia,592 and it was not until 1876 that its existence was recognized

by the Supreme Court. In Kohl v. United States 593 any doubts were

laid to rest, as the Court affirmed that the power was as necessary

to the existence of the National Government as it was to the existence of any state. The federal power of eminent domain is, of course,

limited by the grants of power in the Constitution, so that property

may only be taken for the effectuation of a granted power,594 but

once this is conceded the ambit of national powers is so wideranging that vast numbers of objects may be effected.595 This pre587 See “Liberty of Contract” heading under Fourteenth Amendment, infra.

588 Adair v. United States, 208 U.S. 161 (1908), overruled in substance by Phelps

Dodge Corp. v. NLRB, 313 U.S. 177 (1941); Adkins v. Children’s Hospital, 261 U.S.

525 (1923), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

589 E.g., United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980);

Schweiker v. Wilson, 450 U.S. 221 (1981).

590 United States v. Carmack, 329 U.S. 230, 241–42 (1946). The same is true of

“just compensation” clauses in state constitutions. Boom Co. v. Patterson, 98 U.S.

403, 406 (1879). For in-depth analysis of the eminent domain power, see 1 NICHOLS

ON EMINENT DOMAIN (Julius L. Sackman, 2006).

591 Boom Co., 98 U.S. at 406.

592 Prior to this time, the Federal Government pursued condemnation proceedings in state courts and commonly relied on state law. Kohl v. United States, 91

U.S. 367, 373 (1876); United States v. Jones, 109 U.S. 513 (1883). The general statutory authority for federal condemnation proceedings in federal courts was not enacted until 1888. Act of Aug. 1, 1888, ch. 728, 25 Stat. 357. See 1 NICHOLS ON EMINENT

DOMAIN § 1.24[5] (Julius L. Sackman, 2006).

593 91 U.S. 367 (1876).

594 United States v. Gettysburg Electric Ry., 160 U.S. 668, 679 (1896).

595 E.g., California v. Central Pacific Railroad, 127 U.S. 1, 39 (1888) (highways);

Luxton v. North River Bridge Co., 153 U.S. 525 (1894) (interstate bridges); Cherokee Nation v. Southern Kansas Ry, 135 U.S. 641 (1890) (railroads); Albert Hanson

Lumber Co. v. United States, 261 U.S. 581 (1923) (canal); Ashwander v. TVA, 297

1572 AMENDMENT 5—RIGHTS OF PERSONS
rogative of the National Government can neither be enlarged nor

diminished by a state.596 Whenever lands in a state are needed for

a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the state, with its consent, or

by proceedings in the courts of the United States, with or without

any consent or concurrent act of the state.597

“Prior to the adoption of the Fourteenth Amendment,” the power

of eminent domain of state governments “was unrestrained by any

federal authority.” 598 The Just Compensation Clause of the Fifth

Amendment did not apply to the states,599 and at first the contention that the Due Process Clause of the Fourteenth Amendment afforded property owners the same measure of protection against the

states as the Fifth Amendment did against the Federal Government was rejected.600 However, within a decade the Court rejected

the opposing argument that the amount of compensation to be awarded

in a state eminent domain case is solely a matter of local law. On

the contrary, the Court ruled, although a state “legislature may prescribe a form of procedure to be observed in the taking of private

property for public use, . . . it is not due process of law if provision

be not made for compensation. . . . The mere form of the proceeding instituted against the owner . . . cannot convert the process used

into due process of law, if the necessary result be to deprive him of

his property without compensation.” 601 Although the guarantees of

just compensation flow from two different sources, the standards

used by the Court in dealing with the issues appear to be identical,

and both federal and state cases will be dealt with herein without

expressly continuing to recognize the two different bases for the rulings.

U.S. 288 (1936) (hydroelectric power). “Once the object is within the authority of

Congress, the right to realize it through the exercise of eminent domain is clear.

For the power of eminent domain is merely the means to the end.” Berman v. Parker,

348 U.S. 26, 33 (1954).

596 Kohl v. United States, 91 U.S. 367 374 (1876).

597 Chappell v. United States, 160 U.S. 499, 510 (1896). The fact that land included in a federal reservoir project is owned by a state, or that its taking may impair the state’s tax revenue, or that the reservoir will obliterate part of the state’s

boundary and interfere with the state’s own project for water development and conservation, constitutes no barrier to the condemnation of the land by the United States.

Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508 (1941). So too, land held in

trust and used by a city for public purposes may be condemned. United States v.

Carmack, 329 U.S. 230 (1946).

598 Green v. Frazier, 253 U.S. 233, 238 (1920).

599 Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

600 Davidson v. City of New Orleans, 96 U.S. 97 (1878). The Court attached most

weight to the fact that both due process and just compensation were guaranteed in

the Fifth Amendment while only due process was contained in the Fourteenth, and

refused to equate the missing term with the present one.

601 Chicago B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 233, 236–37 (1897).

See also Sweet v. Rechel, 159 U.S. 380, 398 (1895).

AMENDMENT 5—RIGHTS OF PERSONS 1573
The power of eminent domain is inherent in government and

may be exercised only through legislation or legislative delegation.

Although such delegation is usually to another governmental body,

it may also be to private corporations, such as public utilities, railroad companies, or bridge companies, when they are promoting a

valid public purpose.602

Public Use

Explicit in the Just Compensation Clause is the requirement

that the taking of private property be for a public use; one cannot

be deprived of his property for any reason other than a public use,

even with compensation.603 The question whether a particular intended use is a public use is clearly a judicial one,604 but the Court

has always insisted on a high degree of judicial deference to the

legislative determination.605 “The role of the judiciary in determining whether that power is being exercised for a public use is an

extremely narrow one.” 606 When it is state action being challenged

under the Fourteenth Amendment, there is the additional factor of

the Court’s willingness to defer to the highest court of the state in

resolving such an issue.607 As early as 1908, the Court was obligated to admit that, notwithstanding its retention of the power of

judicial review, “[n]o case is recalled where this court has condemned as a violation of the Fourteenth Amendment a taking upheld by the state court as a taking for public uses . . . .” 608 However, in a 1946 case involving federal eminent domain power, the

Court cast considerable doubt upon the power of courts to review

the issue of public use. “We think that it is the function of Congress to decide what type of taking is for a public use and that the

602 Noble v. Oklahoma City, 297 U.S. 481 (1936); Luxton v. North River Bridge

Co., 153 U.S. 525 (1895). One of the earliest examples of such delegation is Curtiss

v. Georgetown & Alexandria Turnpike Co., 10 U.S. (6 Cr.) 233 (1810).

603 Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–59 (1896); Cole v. La

Grange, 113 U.S. 1, 6 (1885).

604 “It is well established that in considering the application of the Fourteenth

Amendment to cases of expropriation of private property, the question what is a public use is a judicial one.” City of Cincinnati v. Vester, 281 U.S. 439, 444 (1930).

605 Kelo v. City of New London, 545 U.S. 469, 482 (2005). The taking need only

be “rationally related to a conceivable public purpose.” Id. at 490 (Justice Kennedy

concurring).

606 Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in

District of Columbia).

607 Green v. Frazier, 253 U.S. 283, 240 (1920); City of Cincinnati v. Vester, 281

U.S. 439, 446 (1930). See also Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984)

(appeals court erred in applying more stringent standard to action of state legislature).

608 Hairston v. Danville & Western Ry., 208 U.S. 598, 607 (1908). An act of condemnation was voided as not for a public use in Missouri Pac. Ry. v. Nebraska, 164

U.S. 403 (1896), but the Court read the state court opinion as acknowledging this

fact, thus not bringing it within the literal content of this statement.

1574 AMENDMENT 5—RIGHTS OF PERSONS
agency authorized to do the taking may do so to the full extent of

its statutory authority.” 609 There is some suggestion that “the scope

of the judicial power to determine what is a ‘public use’ ” may be

different as between Fifth and Fourteenth Amendment cases, with

greater power in the latter type of cases than in the former,610 but

it may well be that the case simply stands for the necessity for great

judicial restraint.611 Once it is admitted or determined that the taking is for a public use and is within the granted authority, the necessity or expediency of the particular taking is exclusively in the

legislature or the body to which the legislature has delegated the

decision, and is not subject to judicial review.612

At an earlier time, the factor of judicial review would have been

vastly more important than it is now, inasmuch as the prevailing

judicial view was that the term “public use” was synonymous with

“use by the public” and that if there was no duty upon the taker to

permit the public as of right to use or enjoy the property taken,

the taking was invalid. But this view was rejected some time ago.613

The modern conception of public use equates it with the police power

in the furtherance of the public interest. No definition of the reach

or limits of the power is possible, the Court has said, because such

“definition is essentially the product of legislative determinations

addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public

safety, public health, morality, peace and quiet, law and order—

these are some of the . . . traditional application[s] of the police power

. . . .” Effectuation of these matters being within the authority of

the legislature, the power to achieve them through the exercise of

eminent domain is established. “For the power of eminent domain

is merely the means to the end.” 614 Subsequently, the Court put

forward an added indicium of “public use”: whether the government purpose could be validly achieved by tax or user fee.615 Tradi609 United States ex rel. TVA v. Welch, 327 U.S. 546, 551–52 (1946). Justices

Reed and Frankfurter and Chief Justice Stone disagreed with this view. Id. at 555,

557 (concurring).

610 327 U.S. at 552.

611 So it seems to have been considered in Berman v. Parker, 348 U.S. 26, 32

(1954).

612 Rindge Co. v. Los Angeles County, 262 U.S. 700, 709 (1923); Bragg v. Weaver,

251 U.S. 57, 58 (1919); Berman v. Parker, 348 U.S. 26, 33 (1954). “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear

that empirical debates over the wisdom of takings . . . are not to be carried out in

federal courts.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 242–43 (1984).

613 Clark v. Nash, 198 U.S. 361 (1905); Mt. Vernon-Woodberry Cotton Duck Co.

v. Alabama Interstate Power Co., 240 U.S. 30, 32 (1916).

614 Berman v. Parker, 348 U.S. 26, 32, 33 (1954).

615 Brown v. Legal Found. of Washington, 538 U.S. 216, 232 (2003). But see id.

at 242 n.2 (Justice Scalia dissenting).

AMENDMENT 5—RIGHTS OF PERSONS 1575
tionally, eminent domain has been used to facilitate transportation,

the supplying of water, and the like,616 but the use of the power to

establish public parks, to preserve places of historic interest, and

to promote beautification has substantial precedent.617

The Supreme Court has also approved generally the widespread use of the power of eminent domain by federal and state

governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in

place of deteriorated housing, and the promotion of aesthetic values as well as economic ones. In Berman v. Parker,

618 a unanimous

616 E.g., Kohl v. United States, 91 U.S. 367 (1876) (public buildings); Chicago

M. & S.P. Ry. v. City of Minneapolis, 232 U.S. 430 (1914) (canal); Long Island Water

Supply Co. v. Brooklyn, 166 U.S. 685 (1897) (condemnation of privately owned water supply system formerly furnishing water to municipality under contract); Mt.

Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30

(1916) (land, water, and water rights condemned for production of electric power by

public utility); Dohany v. Rogers, 281 U.S. 362 (1930) (land taken for purpose of

exchange with a railroad company for a portion of its right-of-way required for widening a highway); Delaware, L. & W.R.R. v. Town of Morristown, 276 U.S. 182 (1928)

(establishment by a municipality of a public hack stand upon driveway maintained

by railroad upon its own terminal grounds to afford ingress and egress to its patrons); Clark v. Nash, 198 U.S. 361 (1905) (right-of-way across neighbor’s land to

enlarge irrigation ditch for water without which land would remain valueless); Strickley

v. Highland Boy Mining Co., 200 U.S. 527 (1906) (right of way across a placer mining claim for aerial bucket line). In Missouri Pacific Ry. v. Nebraska, 164 U.S. 403

(1896), however, the Court held that it was an invalid use when a State attempted

to compel, on payment of compensation, a railroad, which had permitted the erection of two grain elevators by private citizens on its right-of-way, to grant upon like

terms a location to another group of farmers to erect a third grain elevator for their

own benefit.

617 E.g., Shoemaker v. United States, 147 U.S. 282 (1893) (establishment of public park in District of Columbia); Rindge Co. v. Los Angeles County, 262 U.S. 700

(1923) (scenic highway); Brown v. United States, 263 U.S. 78 (1923) (condemnation

of property near town flooded by establishment of reservoir in order to locate a new

townsite, even though there might be some surplus lots to be sold); United States v.

Gettysburg Electric Ry., 160 U.S. 668 (1896), and Roe v. Kansas ex rel. Smith, 278

U.S. 191 (1929) (historic sites). When time is deemed to be of the essence, Congress

takes land directly by statute, authorizing procedures by which owners of appropriated land may obtain just compensation. See, e.g., Pub. L. 90–545, § 3, 82 Stat. 931

(1968), 16 U.S.C. § 79(c) (taking land for creation of Redwood National Park); Pub.

L. 93–444, 88 Stat. 1304 (1974) (taking lands for addition to Piscataway Park, Maryland); Pub. L. 100–647, § 10002 (1988) (taking lands for addition to Manassas National Battlefield Park).

618 348 U.S. 26, 32–33 (1954) (citations omitted). Rejecting the argument that

the project was illegal because it involved the turning over of condemned property

to private associations for redevelopment, the Court said: “Once the object is within

the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise

for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of

executing the project are for Congress and Congress alone to determine, once the

public purpose has been established. The public end may be as well or better served

through an agency of private enterprise than through a department of government—or so the Congress might conclude.” Id. at 33–34 (citations omitted).

1576 AMENDMENT 5—RIGHTS OF PERSONS
Court observed: “The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical,

aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well

as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” For “public use,” then, it may well be that “public

interest” or “public welfare” is the more correct phrase.619 Berman

was applied in Hawaii Housing Auth. v. Midkiff,

620 upholding the

Hawaii Land Reform Act as a “rational” effort to “correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly.” Direct transfer of land from lessors to lessees was permissible, the Court held, there being no requirement

“that government possess and use property at some point during a

taking.” 621 “The ‘public use’ requirement is . . . coterminous with

the scope of a sovereign’s police powers,” the Court concluded.622

The expansive interpretation of public use in eminent domain

cases may have reached its outer limit in Kelo v. City of New London.

623 There, a five-justice majority upheld as a public use the privateto-private transfer of land for purposes of economic development,

at least in the context of a well-considered, areawide redevelopment plan adopted by a municipality to invigorate a depressed

economy. The Court saw no principled way to distinguish economic

development from the economic purposes endorsed in Berman and

Midkiff, and stressed the importance of judicial deference to the legislative judgment as to public needs. At the same time, the Court

cautioned that private-to-private condemnations of individual properties, not part of an “integrated development plan . . . raise a suspicion that a private purpose [is] afoot.” 624 A vigorous four-justice

dissent countered that localities will always be able to manufacture a plausible public purpose, so that the majority opinion leaves

the vast majority of private parcels subject to condemnation when

a higher-valued use is desired.625 Backing off from the Court’s past

endorsements in Berman and Midkiff of a public use/police power

619 Most recently, the Court equated public use with “public purpose.” Kelo v.

City of New London, 545 U.S. 469, 480 (2005).

620 467 U.S. 229, 243 (1984).

621 467 U.S. at 243.

622 467 U.S. at 240. See also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014

(1984) (required data disclosure by pesticide registrants, primarily for benefit of later

registrants, has a “conceivable public character”).

623 545 U.S. 469 (2005).

624 545 U.S. at 487.

625 Written by Justice O’Connor, and joined by Justices Scalia and Thomas, and

Chief Justice Rehnquist.

AMENDMENT 5—RIGHTS OF PERSONS 1577
equation, the dissenters referred to the “errant language” of these

decisions, which was “unnecessary” to their holdings.626

Just Compensation

“When . . . [the] power [of eminent domain] is exercised it can

only be done by giving the party whose property is taken or whose

use and enjoyment of such property is interfered with, full and adequate compensation, not excessive or exorbitant, but just compensation.” 627 The Fifth Amendment’s guarantee “that private property shall not be taken for a public use without just compensation

was designed to bar Government from forcing some people alone to

bear public burdens which, in all fairness and justice, should be

borne by the public as a whole.” 628

The just compensation required by the Constitution is that which

constitutes “a full and perfect equivalent for the property taken.” 629

Originally the Court required that the equivalent be in money, not

in kind,630 but more recently has cast some doubt on this assertion.631 Just compensation is measured “by reference to the uses

for which the property is suitable, having regard to the existing busi626 545 U.S. at 501.

627 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 573, 575 (1898).

628 Armstrong v. United States, 364 U.S. 40, 49 (1960). “The political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice.” United

States v. Cors, 337 U.S. 325, 332 (1949). There is no constitutional prohibition against

confiscation of enemy property, but aliens not so denominated are entitled to the

protection of this clause. Compare United States v. Chemical Foundation, 272 U.S.

1, 11 (1926) and Stoehr v. Wallace, 255 U.S. 239 (1921), with Silesian-American Corp.

v. Clark, 332 U.S. 469 (1947), Russian Volunteer Fleet v. United States, 282 U.S.

481 (1931), and Guessefeldt v. McGrath, 342 U.S. 308, 318 (1952). Takings Clause

protections for such aliens may be invoked, however, only “when they have come

within the territory of the United States and developed substantial connections with

this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).

629 Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893). The

owner’s loss, not the taker’s gain, is the measure of such compensation. Brown v.

Legal Found. of Washington, 538 U.S. 216, 236 (2003); United States ex rel. TVA v.

Powelson, 319 U.S. 266, 281 (1943); United States v. Miller, 317 U.S. 369, 375 (1943).

The value of the property to the government for its particular use is not a criterion.

United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913); United States v. Twin

City Power Co., 350 U.S. 222 (1956). Attorneys’ fees and expenses are not embraced

in the concept. Dohany v. Rogers, 281 U.S. 362 (1930).

Applying the owner’s-loss standard, the Court addressed a state program requiring lawyers to deposit client funds that cannot earn net interest in a pooled account

generating interest for indigent legal aid. Brown, 538 U.S. at 237. Assuming a taking of the client’s interest, his pecuniary loss is nonetheless zero; hence, the just

compensation required is likewise. Brown is in tension with the Court’s earlier treatment of a similar state program, where it recognized value in the possession, control, and disposition of the interest. Phillips v. Washington Legal Found., 524 U.S.

156, 170 (1998).

630 Van Horne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 315 (C.C. Pa. 1795);

United States v. Miller, 317 U.S. 369, 373 (1943).

631 Regional Rail Reorganization Act Cases, 419 U.S. 102, 150–51 (1974).

1578 AMENDMENT 5—RIGHTS OF PERSONS
ness and wants of the community, or such as may be reasonably

expected in the immediate future, . . . [but] ‘mere possible or imaginary uses or the speculative schemes of its proprietor, are to be excluded.’ ” 632 The general standard thus is the market value of the

property, i.e., what a willing buyer would pay a willing seller.633 If

fair market value does not exist or cannot be calculated, resort must

be had to other data which will yield a fair compensation.634 However, the Court is resistant to alternative standards, having repudiated reliance on the cost of substitute facilities.635 Just compensation is especially difficult to compute in wartime, when enormous

disruptions in supply and governmentally imposed price ceilings totally skew market conditions. Holding that the reasons which underlie the rule of market value when a free market exists apply as

well where value is measured by a government-fixed ceiling price,

the Court permitted owners of cured pork and black pepper to recover only the ceiling price for the commodities, despite findings by

the Court of Claims that the replacement cost of the meat exceeded its ceiling price and that the pepper had a “retention value”

in excess of that price.636 By a five-to-four decision, the Court ruled

that the government was not obliged to pay the present market value

of a tug when the value had been greatly enhanced as a consequence of the government’s wartime needs.637

Illustrative of the difficulties in applying the fair market standard of just compensation are two cases decided by five-to-four votes,

one in which compensation was awarded and one in which it was

denied. Held entitled to compensation for the value of improvements on leased property for the life of the improvements and not

simply for the remainder of the term of the lease was a company

that, while its lease had no renewal option, had occupied the land

632 Chicago B. & Q. R.R. v. Chicago, 166 U.S. 226, 250 (1897); McGovern v. City

of New York, 229 U.S. 363, 372 (1913). See also Boom Co. v. Patterson, 98 U.S. 403

(1879); McCandless v. United States, 298 U.S. 342 (1936).

633 United States v. Miller, 317 U.S. 369, 374 (1943); United States ex rel. TVA

v. Powelson, 319 U.S. 266, 275 (1943). See also United States v. New River Collieries Co., 262 U.S. 341 (1923); Olson v. United States, 292 U.S. 264 (1934); Kimball

Laundry Co. v. United States, 338 U.S. 1 (1949). Exclusion of the value of improvements made by the government under a lease was held constitutional. Old Dominion Land Co. v. United States, 269 U.S. 55 (1925).

634 United States v. Miller, 317 U.S. 369, 374 (1943).

635 United States v. 564.54 Acres of Land, 441 U.S. 506 (1979) (condemnation of

church-run camp); United States v. 50 Acres of Land, 469 U.S. 24 (1984) (condemnation of city-owned landfill). In both cases the Court determined that market value

was ascertainable.

636 United States v. Felin & Co., 334 U.S. 624 (1948); United States v. Commodities Trading Corp., 339 U.S. 121 (1950). See also Vogelstein & Co. v. United States,

262 U.S. 337 (1923).

637 United States v. Cors, 337 U.S. 325 (1949). See also United States v. Toronto

Navigation Co., 338 U.S. 396 (1949).

AMENDMENT 5—RIGHTS OF PERSONS 1579
for nearly 50 years and had every expectancy of continued occupancy under a new lease. Just compensation, the Court said, required taking into account the possibility that the lease would be

renewed, inasmuch as a willing buyer and a willing seller would

certainly have placed a value on the possibility.638 However, when

the Federal Government condemned privately owned grazing land

of a rancher who had leased adjacent federally owned grazing land,

it was held that the compensation owed need not include the value

attributable to the proximity to the federal land. The result would

have been different if the adjacent grazing land had been privately

owned, but the general rule is that government need not pay for

value that it itself creates.639

Interest.—Ordinarily, property is taken under a condemnation

suit upon the payment of the money award by the condemner, and

no interest accrues.640 If, however, the property is taken in fact before payment is made, just compensation includes an increment which,

to avoid use of the term “interest,” the Court has called “an amount

sufficient to produce the full equivalent of that value paid contemporaneously with the taking.” 641 If the owner and the government

enter into a contract which stipulates the purchase price for lands

to be taken, with no provision for interest, the Fifth Amendment is

inapplicable and the landowner cannot recover interest even though

payment of the purchase price is delayed.642 Where property of a

citizen has been mistakenly seized by the government and it is converted into money which is invested, the owner is entitled in recovering compensation to an allowance for the use of his property.643

Rights for Which Compensation Must Be Made.—If real property is condemned the market value of that property must be paid

to the owner. But there are many kinds of property and many uses

638 Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470

(1973). The dissent argued that since upon expiration of the lease only salvage value

of the improvements could be claimed by the lessee, just compensation should be

limited to that salvage value. Id. at 480.

639 United States v. Fuller, 409 U.S. 488 (1973). The dissent argued that the

principle denying compensation for governmentally created value should apply only

when the government was in fact acting in the use of its own property; here the

government was acting only as a condemnor. Id. at 494.

640 Danforth v. United States, 308 U.S. 271, 284 (1939); Kirby Forest Industries

v. United States, 467 U.S. 1 (1984) (no interest due in straight condemnation action

for period between filing of notice of lis pendens and date of taking).

641 United States v. Klamath Indians, 304 U.S. 119, 123 (1938); Jacobs v. United

States, 290 U.S. 13, 17 (1933); Kirby Forest Industries v. United States, 467 U.S. 1

(1984) (substantial delay between valuation and payment necessitates procedure for

modifying award to reflect value at time of payment).

642 Albrecht v. United States, 329 U.S. 599 (1947).

643 Henkels v. Sutherland, 271 U.S. 298 (1926); see also Phelps v. United States,

274 U.S. 341 (1927).

1580 AMENDMENT 5—RIGHTS OF PERSONS
of property which cause problems in computing just compensation.

It is not only the full fee simple interest in land that is compensable “property,” 644 but also such lesser interests as easements 645

and leaseholds. If only a portion of a tract is taken, the owner’s

compensation includes any element of value arising out of the relation of the part taken to the entire tract.646 On the other hand, if

the taking has in fact benefitted the owner, the benefit may be set

off against the value of the land condemned,647 although any supposed benefit which the owner may receive in common with all from

the public use to which the property is appropriated may not be

set off.648 When certain lands were condemned for park purposes,

with resulting benefits set off against the value of the property taken,

the subsequent erection of a fire station on the property instead was

held not to have deprived the owner of any part of his just compensation.649

The Court has also held that the government has a “categorical

duty to pay just compensation” when it physically takes personal

property, just as when it takes real property.650 In Horne v. Department of Agriculture, the Court held that a raisin marketing order

issued under a Depression-era statute requiring raisin growers to

reserve a percentage of their total crop for the federal government

to dispose of in its discretion constitutes “a clear physical taking”

because, even though the scheme was to benefit the growers by maintaining stable markets for raisins, the “[a]ctual raisins are transferred from the growers to the Government.” 651 The Court further

held the government cannot avoid paying just compensation for this

physical taking by providing for the return to the raisin growers of

644 United States v. General Motors Corp., 323 U.S. 373 (1945).

645 United States v. Welch, 217 U.S. 333 (1910).

646 Bauman v. Ross, 167 U.S. 548 (1897); Sharp v. United States, 191 U.S. 341,

351–52, 354 (1903). Where the taking of a strip of land across a farm closed a private right-of-way, an allowance was properly made for the value of the easement.

United States v. Welch, 217 U.S. 333 (1910).

647 Bauman v. Ross, 167 U.S. 548 (1897).

648 Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893).

649 Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).

650 See Horne v. Dep’t of Agric., 576 U.S. ___, No. 14–275, slip op. at 5 (2015).

In deciding this case, the Court presumably intended to leave intact established exceptions when the government seizes personal property (e.g., confiscation of adulterated drugs). See, e.g., Bennis v. Michigan, 516 U.S. 442, 452 (1996) (“Petitioner also

claims that the forfeiture in this case was a taking of private property for public

use in violation of the Takings Clause of the Fifth Amendment, made applicable to

the States by the Fourteenth Amendment. But if the forfeiture proceeding here in

question did not violate the Fourteenth Amendment, the property in the automobile

was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has

already lawfully acquired under the exercise of governmental authority other than

the power of eminent domain.”).

651 Horne, slip op. at 8.

AMENDMENT 5—RIGHTS OF PERSONS 1581
any net proceeds from the government’s sale of the reserve raisins.652 The majority also rejected the government’s argument that

the reserve requirement is not a physical taking because raisin growers voluntarily participate in the raisin market.653 In so doing, the

Court noted that selling produce in interstate commerce is not a

“special government benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.” 654

In addition, the Court determined that the value of the raisins for

takings purposes is their fair market value, with no deduction for

the offsetting benefits of the overall statutory scheme, which is intended to maintain stable markets for raisins.655

Interests in intangible as well as tangible property are subject

to protection under the Taking Clause. Thus compensation must be

paid for the taking of contract rights,656 patent rights,657 and trade

secrets.658 So too, the franchise of a private corporation is property

that cannot be taken for public use without compensation. Upon

condemnation of a lock and dam belonging to a navigation company, the government was required to pay for the franchise to take

652 Id. at 9–12.

653 The government’s argument might have carried more weight had the marketing order been viewed as a regulatory taking. But see Bowles v. Willingham, 321

U.S. 503, 519 (1944) (rent control cannot be a taking of premises if “[t]here is no

requirement that the apartments be used for purposes which bring them under the

[rent control] Act”); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

535 U.S. 302, 321–22 (2002) (“The text of the Fifth Amendment itself provides a

basis for drawing a distinction between physical takings and regulatory takings. Its

plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of

a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from

making certain uses of her private property.”).

654 Horne, slip op. at 13. Here, the Court expressly rejected the argument that

the raisin growers could avoid the physical taking of their property by growing different crops, or making different uses of their grapes, by quoting its earlier decision

in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 n.17 (1982)

(“[A] landlord’s ability to rent his property may not be conditioned on his forfeiting

the right to compensation for a physical occupation.”). The Court also distinguished

the raisin reserve provisions from the requirement that companies manufacturing

pesticides, fungicides, and rodenticides disclose trade secrets in order to sell those

products at issue in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). It did so

because the manufacturers in Ruckelshaus were seen to have taken part in a “voluntary exchange” of information that included their trade secrets, recognized as property under the Takings Clause, in exchange for a “valuable Government benefit” in

the form of a license to sell dangerous chemicals. No such government benefit was

seen to be involved with the raisin growers because they were making “basic and

familiar uses” of their property.

655 Horne, slip op. at 14–16.

656 Lynch v. United States, 292 U.S. 571, 579 (1934); Omnia Commercial Corp.

v. United States, 261 U.S. 502, 508 (1923).

657 James v. Campbell, 104 U.S. 356, 358 (1882). See also Hollister v. Benedict

Mfg. Co., 113 U.S. 59, 67 (1885).

658 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).

1582 AMENDMENT 5—RIGHTS OF PERSONS
tolls as well as for the tangible property.659 The frustration of a private contract by the requisitioning of the entire output of a steel

manufacturer is not a taking for which compensation is required,660 but government requisitioning from a power company of

all the electric power which could be produced by use of the water

diverted through its intake canal, thereby cutting off the supply of

a lessee which had a right, amounting to a corporeal hereditament

under state law, to draw a portion of that water, entitles the lessee

to compensation for the rights taken.661 When, upon default of a

ship-builder, the Government, pursuant to contract with him, took

title to uncompleted boats, the material men, whose liens under state

laws had attached when they supplied the shipbuilder, had a compensable interest equal to whatever value these liens had when the government “took” or destroyed them in perfecting its title.662 As a general matter, there is no property interest in the continuation of a

rule of law.663 And, even though state participation in the social security system was originally voluntary, a state had no property interest in its right to withdraw from the program when Congress

had expressly reserved the right to amend the law and the agreement with the state.664 Similarly, there is no right to the continuation of governmental welfare benefits.665

Consequential Damages.—The Fifth Amendment requires compensation for the taking of “property,” hence does not require payment for losses or expenses incurred by property owners or tenants

incidental to or as a consequence of the taking of real property, if

they are not reflected in the market value of the property taken.666

“Whatever of property the citizen has the government may take.

When it takes the property, that is, the fee, the lease, whatever, he

may own, terminating altogether his interest, under the established law it must pay him for what is taken, not more; and he

must stand whatever indirect or remote injuries are properly comprehended within the meaning of ‘consequential damage’ as that con659 Monongahela Navigation Co. v. United States, 148 U.S. 312, 345 (1983).

660 Omnia Commercial Co. v. United States, 261 U.S. 502 (1923).

661 International Paper Co. v. United States, 282 U.S. 399 (1931).

662 Armstrong v. United States, 364 U.S. 40, 50 (1960).

663 Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 88 n.32 (1978).

664 Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S.

41 (1986).

665 “Congress is not, by virtue of having instituted a social welfare program, bound

to continue it at all, much less at the same benefit level.” Bowen v. Gilliard, 483

U.S. 587, 604 (1987).

666 Mitchell v. United States, 267 U.S. 341 (1925); United States ex rel. TVA v.

Powelson, 319 U.S. 266 (1943); United States v. Petty Motor Co., 327 U.S. 372 (1946).

For consideration of the problem of fair compensation in government-supervised bankruptcy reorganization proceedings, see New Haven Inclusion Cases, 399 U.S. 392,

489–95 (1970).

AMENDMENT 5—RIGHTS OF PERSONS 1583
ception has been defined in such cases. Even so the consequences

often are harsh. For these whatever remedy may exist lies with Congress.” 667 An exception to the general principle has been established by the Court where only a temporary occupancy is assumed;

then the taking body must pay the value which a hypothetical longterm tenant in possession would require when leasing to a temporary occupier requiring his removal, including in the market value

of the interest the reasonable cost of moving out the personal property stored in the premises, the cost of storage of goods against their

sale, and the cost of returning the property to the premises.668 Another exception to the general rule occurs with a partial taking, in

which the government takes less than the entire parcel of land and

leaves the owner with a portion of what he had before; in such a

case compensation includes any diminished value of the remaining

portion (“severance damages”) as well as the value of the taken portion.669

Enforcement of Right to Compensation.—The nature and character of the tribunal to determine compensation is in the discretion

of the legislature, and may be a regular court, a special legislative

court, a commission, or an administrative body.670 Proceedings to

condemn land for the benefit of the United States are brought in

the federal district court for the district in which the land is located.671 The estimate of just compensation is not required to be

made by a jury but may be made by a judge or entrusted to a com667 United States v. General Motors Corp., 323 U.S. 373, 382 (1945).

668 United States v. General Motors Corp., 323 U.S. 373 (1945). In Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), the Government seized the tenant’s plant

for the duration of the war, which turned out to be less than the full duration of the

lease, and, having no other means of serving its customers, the laundry suspended

business for the period of military occupancy; the Court narrowly held that the government must compensate for the loss in value of the business attributable to the

destruction of its “trade routes,” that is, for the loss of customers built up over the

years and for the continued hold of the laundry upon their patronage. See also United

States v. Pewee Coal Co., 341 U.S. 114 (1951) (in temporary seizure, Government

must compensate for losses attributable to increased wage payments by the Government).

669 United States v. Miller, 317 U.S. 369, 375–76 (1943). “On the other hand,”

the Court added, “if the taking has in fact benefitted the remainder, the benefit may

be set off against the value of the land taken.” Id.

670 United States v. Jones, 109 U.S. 513 (1883); Bragg v. Weaver, 251 U.S. 57

(1919).

671 28 U.S.C. § 1403. On the other hand, inverse condemnation actions (claims

that the United States has taken property without compensation) are governed by

the Tucker Act, 28 U.S.C. § 1491(a)(1), which vests the Court of Federal Claims (formerly the Claims Court) with jurisdiction over claims against the United States “founded

. . . upon the Constitution.” See Eastern Enterprises v. Apfel, 524 U.S. 498, 520 (1998).

Inverse condemnation claims against the United States not in excess of $10,000 may

also be heard in federal district court under the “Little Tucker Act.” 28 U.S.C.

§ 1346(a)(2).

1584 AMENDMENT 5—RIGHTS OF PERSONS
mission or other body.672 Federal courts may appoint a commission

in condemnation actions to resolve the compensation issue.673 If a

body other than a court is designated to determine just compensation, its decision must be subject to judicial review,674 although the

scope of review may be limited by the legislature.675 When the judgment of a state court with regard to the amount of compensation is

questioned, the Court’s review is restricted. “All that is essential is

that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and

when this has been provided there is that due process of law which

is required by the Federal Constitution.” 676 “[T]here must be something more than an ordinary honest mistake of law in the proceedings for compensation before a party can make out that the State

has deprived him of his property unconstitutionally.” 677 Unless, by

its rulings of law, the state court prevented a complainant from obtaining substantially any compensation, its findings as to the amount

of damages will not be overturned on appeal, even though as a consequence of error therein the property owner received less than he

was entitled to.678

When Property Is Taken

The issue whether one’s property has been “taken” with the consequent requirement of just compensation can hardly arise when

government institutes condemnation proceedings directed to it. Where,

however, physical damage results to property because of government action, or where regulatory action limits activity on the property or otherwise deprives it of value,679 whether there has been a

taking in the Fifth Amendment sense becomes critical.

672 Bauman v. Ross, 167 U.S. 548 (1897). Even when a jury is provided to determine the amount of compensation, it is the rule at least in federal court that the

trial judge is to instruct the jury with regard to the criteria and this includes determination of “all issues” other than the precise issue of the amount of compensation,

so that the judge decides those matters relating to what is computed in making the

calculation. United States v. Reynolds, 397 U.S. 14 (1970).

673 Rule 71A(h), Fed. R. Civ. P. These commissions have the same powers as a

court-appointed master.

674 Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893).

675 Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897). In federal

courts, reports of Rule 71A commissions are to be accepted by the court unless “clearly

erroneous.” Fed. R. Civ. P. 53(e)(2).

676 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569 (1898).

677 McGovern v. City of New York, 229 U.S. 363, 370–71 (1913).

678 229 U.S. at 371. See also Provo Bench Canal Co. v. Tanner, 239 U.S. 323

(1915); Appleby v. City of Buffalo, 221 U.S. 524 (1911).

679 The Court has not yet determined whether the actions of a court may give

rise to a taking. In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, Justice Scalia, joined by three other Justices, recognized that a

court could effect a taking through a decision that contravened established property

AMENDMENT 5—RIGHTS OF PERSONS 1585
Government Activity Not Directed at the Property.—The older

cases proceeded on the basis that the requirement of just compensation for property taken for public use referred only to “direct appropriation, and not to consequential injuries resulting from the exercise of lawful power.” 680 Accordingly, a variety of consequential

injuries were held not to constitute takings: damage to abutting property resulting from the authorization of a railroad to erect tracts,

sheds, and fences over a street; 681 similar deprivations, lessening

the circulation of light and air and impairing access to premises,

resulting from the erection of an elevated viaduct over a street, or

resulting from the changing of a grade in the street.682 Nor was

government held liable for the extra expense which the property

owner must obligate in order to ward off the consequence of the

governmental action, such as the expenses incurred by a railroad

in planking an area condemned for a crossing, constructing gates,

and posting gatemen,683 or by a landowner in raising the height of

the dikes around his land to prevent their partial flooding consequent to private construction of a dam under public licensing.temple

v. c 684

But the Court also decided long ago that land can be “taken” in

the constitutional sense by physical invasion or occupation by the

government, as occurs when the government floods land permanently or recurrently.685 A later formulation was that “[p]roperty is

taken in the constitutional sense when inroads are made upon an

owner’s use of it to an extent that, as between private parties, a

servitude has been acquired either by agreement or in course of

time.” 686 It was thus held that the government had imposed a serlaw. 560 U.S. ___, No. 08–1151, slip op. (2010). Justice Kennedy and Justice Breyer,

each joined by one other Justice, wrote concurring opinions finding that the case at

hand did not require the Court to determine whether, or when, a judicial decision

on the rights of a property owner can violate the Takings Clause. Though all eight

participating Justices agreed on the result in Stop the Beach Renourishment, Inc,

the viability and dimensions of a judicial takings doctrine thus remains unresolved.

680 Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871). The Fifth Amendment “has never been supposed to have any bearing upon, or to inhibit laws that

indirectly work harm and loss to individuals,” the Court explained.

681 Meyer v. City of Richmond, 172 U.S. 82 (1898).

682 Sauer v. City of New York, 206 U.S. 536 (1907). But see the litigation in the

state courts cited by Justice Cardozo in Roberts v. City of New York, 295 U.S. 264,

278–82 (1935).

683 Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897).

684 Manigault v. Springs, 199 U.S. 473 (1905).

685 Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177–78 (1872). Recurrent, temporary floodings are not categorically exempt from Takings Clause liability. Ark. Game & Fishing Comm’n v. United States, 568 U.S. ___, No. 11–597, slip

op. (2012) (downstream timber damage caused by changes in seasonal water release

rates from government dam).

686 United States v. Dickinson, 331 U.S. 745, 748 (1947).

1586 AMENDMENT 5—RIGHTS OF PERSONS
vitude for which it must compensate the owner on land adjoining

its fort when it repeatedly fired the guns at the fort across the land

and had established a fire control service there.687 In two major cases,

the Court held that the lessees or operators of airports were required to compensate the owners of adjacent land when the noise,

glare, and fear of injury occasioned by the low altitude overflights

during takeoffs and landings made the land unfit for the use to which

the owners had applied it.688 Eventually, the term “inverse condemnation” came to be used to refer to such cases where the government has not instituted formal condemnation proceedings, but instead the property owner has sued for just compensation, claiming

that governmental action or regulation has “taken” his property.689

Navigable Waters.—The repeated holdings that riparian ownership is subject to the power of Congress to regulate commerce constitute an important reservation to the developing law of liability

in the taking area. When damage results consequentially from an

improvement to a river’s navigable capacity, or from an improvement on a nonnavigable river designed to affect navigability elsewhere, it is generally not a taking of property but merely an exercise of a servitude to which the property is always subject.690 This

exception does not apply to lands above the ordinary high-water mark

of a stream,691 hence is inapplicable to the damage the government

may do to such “fast lands” by causing overflows, by erosion, and

otherwise, consequent on erection of dams or other improve687 Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922).

Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919); Peabody

v. United States, 231 U.S. 530 (1913).

688 United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny County,

369 U.S. 84 (1962). A corporation chartered by Congress to construct a tunnel and

operate railway trains therein was held liable for damages in a suit by one whose

property was so injured by smoke and gas forced from the tunnel as to amount to a

taking. Richards v. Washington Terminal Co., 233 U.S. 546 (1914).

689 “The phrase ‘inverse condemnation’ generally describes a cause of action against

a government defendant in which a landowner may recover just compensation for a

‘taking’ of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign’s power of eminent domain have not

been instituted by the government entity.” San Diego Gas & Electric Co. v. City of

San Diego, 450 U.S. 621, 638 n.2 (1981) (Justice Brennan dissenting). See also United

States v. Clarke, 445 U.S. 253, 257 (1980); Agins v. City of Tiburon, 447 U.S. 255,

258 n.2 (1980).

690 Gibson v. United States, 166 U.S. 269 (1897); Lewis Blue Point Oyster Co. v.

Briggs, 229 U.S. 82 (1913); United States v. Chandler-Dunbar Water Power Co., 229

U.S. 53 (1913); United States v. Appalachian Power Co., 311 U.S. 377 (1940); United

States v. Commodore Park, Inc., 324 U.S. 386 (1945); United States v. Willow River

Power Co., 324 U.S. 499 (1945); United States v. Twin City Power Co., 350 U.S. 222

(1956); United States v. Rands, 389 U.S. 121 (1967).

691 United States v. Virginia Elec. & Power Co., 365 U.S. 624, 628 (1961).

AMENDMENT 5—RIGHTS OF PERSONS 1587
ments.692 And, when previously nonnavigable waters are made navigable by private investment, government may not, without paying

compensation, simply assert a navigation servitude and direct the

property owners to afford public access.693

Regulatory Takings.—Although it is established that government may take private property, with compensation, to promote the

public interest, that interest also may be served by regulation of

property use pursuant to the police power, and for years there was

broad dicta that no one may claim damages that result from a police regulation designed to secure the common welfare, especially

in the area of health and safety.694 “What distinguishes eminent domain from the police power is that the former involves the taking

of property because of its need for the public use while the latter

involves the regulation of such property to prevent the use thereof

in a manner that is detrimental to the public interest.” 695 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to

which it is suited.696 The older cases flatly denied the possibility of

compensation for this diminution of property values,697 but the Court

in 1922 established as a general principle that “if regulation goes

too far it will be recognized as a taking.” 698

In Mahon, Justice Holmes, for the Court, over Justice Brandeis’

vigorous dissent, held unconstitutional a state statute prohibiting

692 United States v. Lynah, 188 U.S. 445 (1903); United States v. Cress, 243 U.S.

316 (1917); Jacobs v. United States, 290 U.S. 13 (1933); United States v. Dickinson,

331 U.S. 745 (1947); United States v. Kansas City Ins. Co., 339 U.S. 799 (1950);

United States v. Virginia Electric & Power Co., 365 U.S. 624 (1961).

693 Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn v. Vermillion Corp.,

444 U.S. 206 (1979).

694 Mugler v. Kansas, 123 U.S. 623, 668–69 (1887). See also The Legal Tender

Cases, 79 U.S. (12 Wall.) 457, 551 (1871); Chicago, B. & Q. R.R. v. City of Chicago,

166 U.S. 226, 255 (1897); Omnia Commercial Co. v. United States, 261 U.S. 502

(1923); Norman v. Baltimore & Ohio R.R., 294 U.S. 240 (1935).

695 1 NICHOLS ON EMINENT DOMAIN § 1.42 (Julius L. Sackman, 2006).

696 E.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915) (ordinance upheld restricting owner of brick factory from continuing his use after residential growth surrounding factory made use noxious, even though value of property was reduced by more

than 90%); Miller v. Schoene, 276 U.S. 272 (1928) (no compensation due owner’s

loss of red cedar trees ordered destroyed because they were infected with rust that

threatened contamination of neighboring apple orchards: preferment of public interest in saving cash crop to property interest in ornamental trees was rational).

697 Mugler v. Kansas, 123 U.S. 623, 668–69 (1887) (ban on manufacture of liquor greatly devalued plaintiff’s plant and machinery; no taking possible simply because of legislation deeming a use injurious to public health and welfare).

698 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). See also Lucas v.

South Carolina Coastal Council, 505 U.S. 1003 (1992) (a regulation that deprives a

property owner of all beneficial use of his property requires compensation, unless

the owner’s proposed use is one prohibited by background principles of property or

nuisance law existing at the time the property was acquired).

1588 AMENDMENT 5—RIGHTS OF PERSONS
subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased by deeds that

reserved to the coal companies ownership of subsurface mining rights

and that held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners

more than they had been able to obtain through contracting, and

at the same time deprived the coal companies of the entire value of

their subsurface estates. The Court observed that “[f]or practical purposes, the right to coal consists in the right to mine,” and that the

statute, by making it “commercially impracticable to mine certain

coal,” had essentially “the same effect for constitutional purposes

as appropriating or destroying it.” 699 The regulation, therefore, in

precluding the companies from exercising any mining rights whatever, went “too far.” 700 However, when presented 65 years later with

a very similar restriction on coal mining, the Court upheld it, pointing out that, unlike its predecessor, the newer law identified important public interests.701

The Court had been early concerned with the imposition upon

one or a few individuals of the costs of furthering the public interest.702 But it was with respect to zoning, in the context of substantive due process, that the Court first experienced some difficulty in

this regard. The Court’s first zoning case involved a real estate company’s challenge to a comprehensive municipal zoning ordinance,

alleging that the ordinance prevented development of its land for

industrial purposes and thereby reduced its value from $10,000 an

acre to $2,500 an acre.703 Acknowledging that zoning was of recent

origin, the Court observed that it must find its justification in the

police power and be evaluated by the constitutional standards applied to exercises of the police power. After considering traditional

nuisance law, the Court determined that the public interest was served

by segregation of incompatible land uses and the ordinance was thus

valid on its face; whether its application to diminish property values in any particular case was also valid would depend, the Court

699 260 U.S. at 414–15.

700 260 U.S. at 415. In dissent, Justice Brandeis argued that a restriction imposed to abridge the owner’s exercise of his rights in order to prohibit a noxious use

or to protect the public health and safety simply could not be a taking, because the

owner retained his interest and his possession. Id. at 416.

701 Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987).

702 Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935) (government may

not require railroad at its own expense to separate the grade of a railroad track

from that of an interstate highway). See also Panhandle Co. v. Highway Comm’n,

294 U.S. 613 (1935); Atchison, T. & S.F. Ry. v. Public Util. Comm’n, 346 U.S. 346

(1953), and compare the Court’s two decisions in Georgia Ry. & Electric Co. v. City

of Decatur, 295 U.S. 165 (1935), and 297 U.S. 620 (1936).

703 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

AMENDMENT 5—RIGHTS OF PERSONS 1589
said, upon a finding that it was not “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” 704 A few years later the Court, again relying on due process rather than taking law, did invalidate the

application of a zoning ordinance to a tract of land, finding that

the tract would be rendered nearly worthless and that to exempt

the tract would impair no substantial municipal interest.705 But then

the Court withdrew from the land-use scene until the 1970s, giving

little attention to states and their municipalities as they developed

more comprehensive zoning techniques.706

As governmental regulation of property has expanded over the

years—in terms of zoning and other land use controls, environmental regulations, and the like—the Court never developed, as it admitted, a “set formula to determine where regulation ends and taking begins.” 707 Rather, as one commentator remarked, its decisions

constitute a “crazy quilt pattern” of judgments.708 Nonetheless, the

Court has now formulated general principles that guide many of

its decisions in the area.

In Penn Central Transportation Co. v. City of New York,

709 the

Court, while cautioning that regulatory takings cases require “essentially ad hoc, factual inquiries,” nonetheless laid out general guidance for determining whether a regulatory taking has occurred. “The

economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are . . . relevant considerations. So too, is the character of the governmental action. A ‘taking’

may more readily be found when the interference with property can

be characterized as a physical invasion by government than when

704 272 U.S. at 395. See also Zahn v. Board of Pub. Works, 274 U.S. 325 (1927).

705 Nectow v. City of Cambridge, 277 U.S. 183 (1928).

706 Initially, the Court’s return to the land-use area involved substantive due

process, not takings. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (sustaining

single-family zoning as applied to group of college students sharing a house); Moore

v. City of East Cleveland, 431 U.S. 494 (1977) (voiding single-family zoning so strictly

construed as to bar a grandmother from living with two grandchildren of different

children). See also City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976).

707 Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The

phrase appeared first in Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962).

708 Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme

Court Expropriation Law, SUP. CT. REV. 63 (1962). For an effort to ground takings

jurisprudence in its philosophical precepts, see Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law, 80 HARV. L.

REV. 1165 (1967).

709 438 U.S. 104 (1978). Justices Rehnquist and Stevens and Chief Justice Burger

dissented. Id. at 138.

1590 AMENDMENT 5—RIGHTS OF PERSONS
interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” 710

At issue in Penn Central was the City’s landmarks preservation law, as applied to deny approval to construct a 53-story office

building atop Grand Central Terminal. The Court upheld the landmarks law against Penn Central’s takings claim through application of the principles set forth above. The economic impact on Penn

Central was considered: the Company could still make a “reasonable return” on its investment by continuing to use the facility as a

rail terminal with office rentals and concessions, and the City specifically permitted owners of landmark sites to transfer to other sites

the right to develop those sites beyond the otherwise permissible

zoning restrictions, a valuable right that mitigated the burden otherwise to be suffered by the owner. As for the character of the governmental regulation, the Court found the landmarks law to be an

economic regulation rather than a governmental appropriation of

property, the preservation of historic sites being a permissible goal

and one that served the public interest.711

Justice Holmes began his analysis in Mahon with the observation that “[g]overnment hardly could go on if to some extent values

incident to property could not be diminished without paying for every . . . change in the general law,” 712 and Penn Central’s economic

impact standard also leaves ample room for recognition of this principle. Thus, the Court can easily hold that a mere permit requirement does not amount to a taking,713 nor does a simple recordation

requirement.714 The tests become more useful, however, when compliance with regulation becomes more onerous.

Several times the Court has relied on the concept of “distinct

[or, in most later cases, ‘reasonable’] investment-backed expectations” first introduced in Penn Central. In Ruckelshaus v. Monsanto

Co.,

715 the Court used the concept to determine whether a taking

had resulted from the government’s disclosure of trade secret information submitted with applications for pesticide registrations. Disclosure of data that had been submitted from 1972 to 1978, a pe710 438 U.S. at 124 (citations omitted).

711 438 U.S. at 124–28, 135–38.

712 260 U.S. at 413.

713 United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (requirement that permit be obtained for filling privately-owned wetlands is not a taking,

although permit denial resulting in prevention of economically viable use of land

may be).

714 Texaco v. Short, 454 U.S. 516 (1982) (state statute deeming mineral claims

lapsed upon failure of putative owners to take prescribed steps is not a taking); United

States v. Locke, 471 U.S. 84 (1985) (reasonable regulation of recordation of mining

claim is not a taking).

715 467 U.S. 986 (1984).

AMENDMENT 5—RIGHTS OF PERSONS 1591
riod when the statute guaranteed confidentiality and thus “formed

the basis of a distinct investment-backed expectation,” would have

destroyed the property value of the trade secret and constituted a

taking.716 Following 1978 amendments setting forth conditions of

data disclosure, however, applicants voluntarily submitting data in

exchange for the economic benefits of registration had no reasonable expectation of additional protections of confidentiality.717 Relying less heavily on the concept but rejecting an assertion that reasonable investment backed-expectations had been upset, the Court

in Connolly v. Pension Benefit Guaranty Corp.718 upheld retroactive

imposition of liability for pension plan withdrawal on the basis that

employers had at least constructive notice that Congress might buttress the legislative scheme to accomplish its legislative aim that

employees receive promised benefits. However, where a statute imposes severe and “substantially disproportionate” retroactive liability based on conduct several decades earlier, on parties that could

not have anticipated the liability, a taking (or violation of due process) may occur. On this rationale, the Court in Eastern Enterprises v. Apfel 719 struck down the Coal Miner Retiree Health Benefit Act’s requirement that companies formerly engaged in mining

pay miner retiree health benefits, as applied to a company that spun

off its mining operation in 1965 before collective bargaining agreements included an express promise of lifetime benefits.

On the other hand, a federal ban on the sale of artifacts made

from eagle feathers was sustained as applied to the existing inventory of a commercial dealer in such artifacts, the Court not directly

addressing the ban’s obvious interference with investment-backed

expectations.720 The Court merely noted that the ban served a substantial public purpose in protecting the eagle from extinction, that

716 467 U.S. at 1011.

717 467 U.S. at 1006–07. Similarly, disclosure of data submitted before the confidentiality guarantee was placed in the law did not frustrate reasonable expectations, the Trade Secrets Act merely protecting against “unauthorized” disclosure. Id.

at 1008–10.

718 475 U.S. 211 (1986). Accord, Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602, 645–46 (1993). In addition, see Kaiser Aetna v. United

States, 444 U.S. 164, 179 (1979) (involving frustration of “expectancies” developed

through improvements to private land and governmental approval of permits), and

PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (characterizing and

distinguishing Kaiser Aetna as involving interference with “reasonable investment

backed expectations”).

719 524 U.S. 498 (1998). The split doctrinal basis of Eastern Enterprises undercuts its precedent value, and that of Connolly and Concrete Pipe, for takings law. A

majority of the justices (one supporting the judgment and four dissenters) found substantive due process, not takings law, to provide the analytical framework where, as

in Eastern Enterprises, the gravamen of the complaint is the unfairness and irrationality of the statute, rather than its economic impact.

720 Andrus v. Allard, 444 U.S. 51 (1979).

1592 AMENDMENT 5—RIGHTS OF PERSONS
the owner still had viable economic uses for his holdings, such as

displaying them in a museum and charging admission, and that he

still had the value of possession.721

The Court has made plain that, in applying the economic impact and investment-backed expectations factors of Penn Central,

courts are to compare what the property owner has lost through

the challenged government action with what the owner retains. Discharging this mandate requires a court to define the extent of plaintiff’s property—the “parcel as a whole”—that sets the scope of analysis. The Supreme Court holds that takings law “does not divide a

single parcel into discrete segments and attempt to determine whether

rights in a particular segment have been entirely abrogated.” 722 But,

although this apparently means that one may not exclude acreage

from the relevant parcel solely to isolate the regulated portion, there

are numerous arguments for excluding acreage (purchased by plaintiff at a different time, in different zoning status, etc.) that the Court

has not addressed. And roiling the waters are persistent expressions of concern by the conservative justices, often in dicta, about

the possible unfairness of an absolute parcel-as-a-whole rule.723 Most

recently, however, in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency,

724 a six-justice majority including Justices

Kennedy and O’Connor offered a ringing endorsement of relevantparcel doctrine. Tahoe-Sierra affirmed the established spatial (court

must consider the entire relevant tract) and functional (court must

consider plaintiff’s full bundle of rights) dimensions of the doc721 Similarly, the Court in Goldblatt had pointed out that the record contained

no indication that the mining prohibition would reduce the value of the property in

question. 369 U.S. at 594. Contrast Hodel v. Irving, 481 U.S. 704 (1987), where the

Court found insufficient justification for a complete abrogation of the right to pass

on to heirs interests in certain fractionated property. Note as well the differing views

expressed in Irving as to whether that case limits Andrus v. Allard to its facts. Id.

at 718 (Justice Brennan concurring, 719 (Justice Scalia concurring). See also the

suggestion in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027–28 (1992),

that Allard may rest on a distinction between permissible regulation of personal

property, on the one hand, and real property, on the other.

722 Penn Central, 438 U.S. at 130. The identical principle was reaffirmed in Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987); Concrete

Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 508 U.S.

602, 644 (1993); and Tahoe-Sierra Preservation Council v. Tahoe Regional Planning

Agency, 535 U.S. 302, 327 (2002).

723 See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 n.7

(1992) (“answer . . . may lie in how the owner’s reasonable expectations have been

shaped by the State’s law of property”). Justice Kennedy provided extended dicta in

his majority opinion in Palazzolo v. Rhode Island, referring to this “difficult, persisting question” and noting that “we have at times expressed discomfort with the logic

of this rule.” 533 U.S. 606, 631 (2001).

724 535 U.S. 302 (2002).

AMENDMENT 5—RIGHTS OF PERSONS 1593
trine,725 and added a temporal one (court must consider the entire

time span of plaintiff’s property interest). Invoking this temporal

dimension, the Court held that temporary land-use development moratoria do not effect a total elimination of use, since use and value

return in the period following the moratorium’s expiration. Thus,

such moratoria are to be tested under the ad hoc, multifactor Penn

Central test, rather than the per se approach to “total takings” discussed further on.

In the course of its opinion in Penn Central the Court rejected

the principle that no compensation is required when regulation bans

a noxious or harmful effect of land use.726 The principle, it had been

contended, followed from several earlier cases, including Goldblatt

v. Town of Hempstead.

727 In that case, after the town had expanded around an excavation used by a company for mining sand

and gravel, the town enacted an ordinance that in effect terminated further mining at the site. Declaring that no compensation

was owed, the Court stated that “[a] prohibition simply upon the

use of property for purposes that are declared, by valid legislation,

to be injurious to the health, morals, or safety of the community,

cannot, in any just sense, be deemed a taking or an appropriation

of property for the public benefit. Such legislation does not disturb

the owner in the control or use of his property for lawful purposes,

nor restrict his right to dispose of it, but is only a declaration by

the State that its use by anyone, for certain forbidden purposes, is

prejudicial to the public interests.” 728 In Penn Central, however, the

Court denied that there was any such test and that prior cases had

turned on the concept. “These cases are better understood as resting not on any supposed ‘noxious’ quality of the prohibited uses but

rather on the ground that the restrictions were reasonably related

to the implementation of a policy—not unlike historic preservation—

725 The spatial dimension is illustrated by the takings analysis in Penn Central,

declining to segment Grand Central Terminal from the air rights over it. Functional

parcel as a whole—refusing to segment one “stick” in the “bundle” of rights—was

applied in Andrus v. Allard, 444 U.S. 51, 65–66 (1979), holding that denial of the

right to sell Indian artifacts was not a taking in light of rights in the artifacts that

were retained.

726 The dissent was based upon this test. Penn Central, 438 U.S. at 144–46.

727 369 U.S. 590 (1962). Hadacheck v. Sebastian, 239 U.S. 394 (1915), and, perhaps, Miller v. Schoene, 276 U.S. 272 (1928), also fall under this heading, although

Schoene may also be assigned to the public peril line of cases.

728 369 U.S. at 593 (quoting Mugler v. Kansas, 123 U.S. 623, 668–69 (1887)).

The Court posited a two-part test. First, the interests of the public required the interference, and, second, the means were reasonably necessary for the accomplishment of the purpose and were not unduly oppressive of the individual. 369 U.S. at

595. The test was derived from Lawton v. Steele, 152 U.S. 133, 137 (1894) (holding

that state officers properly destroyed fish nets that were banned by state law in

order to preserve certain fisheries from extinction).

1594 AMENDMENT 5—RIGHTS OF PERSONS
expected to produce a widespread public benefit and applicable to

all similarly situated property.” 729 More recently, in Lucas v. South

Carolina Coastal Council,

730 the Court explained “noxious use” analysis as merely an early characterization of police power measures

that do not require compensation. “[N]oxious use logic cannot serve

as a touchstone to distinguish regulatory ‘takings’—which require

compensation—from regulatory deprivations that do not require compensation.” 731

Penn Central is not the only guide to when an inverse condemnation has occurred; other criteria have emerged from other cases

before and after Penn Central. The Court has long recognized a per

se takings rule for certain physical invasions: when government permanently 732 occupies property (or authorizes someone else to do so),

the action constitutes a taking regardless of the public interests served

or the extent of damage to the parcel as a whole.733 The modern

case dealt with a law that required landlords to permit a cable television company to install its cable facilities upon their buildings;

although the equipment occupied only about 11⁄2 cubic feet of space

on the exterior of each building and had only a de minimis economic impact, a divided Court held that the regulation authorized

a permanent physical occupation of the property and thus constituted a taking.734 Recently, the Court sharpened further the distinction between regulatory takings and permanent physical occupa729 Penn Central, 438 U.S. at 133–34 n.30.

730 505 U.S. 1003 (1992).

731 505 U.S. at 1026. The Penn Central majority also rejected the dissent’s contention, 438 U.S. at 147–50, that regulation of property use constitutes a taking

unless it spreads its distribution of benefits and burdens broadly so that each person burdened has at the same time the enjoyment of the benefit of the restraint

upon his neighbors. The Court deemed it immaterial that the landmarks law has a

more severe impact on some landowners than on others: “Legislation designed to

promote the general welfare commonly burdens some more than others.” Id. at 133–

34.

732 By contrast, the per se rule is inapplicable to temporary physical occupations

of land. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428, 434 (1982);

PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980).

733 The rule emerged from cases involving flooding of lands and erection of poles

for telegraph lines, e.g., Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872);

City of St. Louis v. Western Union Tel. Co., 148 U.S. 92 (1893); Western Union Tel.

Co. v. Pennsylvania R.R., 195 U.S. 540 (1904).

734 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Loretto

was distinguished in FCC v. Florida Power Corp., 480 U.S. 245 (1987); regulation of

the rates that utilities may charge cable companies for pole attachments does not

constitute a taking in the absence of any requirement that utilities allow attachment and acquiesce in physical occupation of their property. See also Yee v. City of

Escondido, 503 U.S. 519 (1992) (no physical occupation was occasioned by regulations in effect preventing mobile home park owners from setting rents or determining who their tenants would be; owners could still determine whether their land

would be used for a trailer park and could evict tenants in order to change the use

of their land).

AMENDMENT 5—RIGHTS OF PERSONS 1595
tions by declaring it “inappropriate” to use case law from either realm

as controlling precedent in the other.735 Physical invasions falling

short of permanent physical occupations remain subject to Penn Central.

A second per se taking rule is of more recent vintage. Land use

controls constitute takings, the Court stated in Agins v. City of Tiburon,

if they do not “substantially advance legitimate governmental interests,” or if they deny a property owner “economically viable use of

his land.” 736 This second Agins criterion creates a categorical rule:

when, with respect to the parcel as a whole, the landowner “has

been called upon to sacrifice all economically beneficial uses in the

name of the common good, that is, to leave his property economically idle, he has suffered a taking.” 737 The only exceptions, the Court

explained in Lucas, are for those restrictions that come with the

property as title encumbrances or other legally enforceable limitations. Regulations “so severe” as to prohibit all economically beneficial use of land “cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions

that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such

an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts—by adjacent land

owners (or other uniquely affected persons) under the State’s law

of private nuisance, or by the State under its complementary power

to abate [public] nuisances . . . , or otherwise.” 738 Thus, while there

is no broad “noxious use” exception separating police power regulations from takings, there is a narrower “background principles” exception based on the law of nuisance and unspecified “property law”

principles.

Together with the investment-backed expectations factor of Penn

Central, background principles were viewed by many lower courts

as supporting a “notice rule” under which a taking claim was absolutely barred if based on a restriction imposed under a regulatory

735 Tahoe-Sierra, 535 U.S. at 323. Tahoe-Sierra’s sharp physical-regulatory dichotomy is hard to reconcile with dicta in Lingle v. Chevron U.S.A. Inc., 544 U.S.

528, 539 (2005), to the effect that the Penn Central regulatory takings test, like the

physical occupations rule of Loretto, “aims to identify regulatory actions that are

functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.”

736 447 U.S. 255, 260 (1980).

737 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992) (emphasis in original). The Agins/Lucas total deprivation rule does not create an all-ornothing situation, since “the landowner whose deprivation is one step short of complete” may still be able to recover through application of the Penn Central economic

impact and “distinct [or reasonable] investment-backed expectations” criteria. Id. at

1019 n.8 (1992). See also Palazzolo, 533 U.S. at 632.

738 505 U.S. at 1029.

1596 AMENDMENT 5—RIGHTS OF PERSONS
regime predating plaintiff’s acquisition of the property. In Palazzolo v. Rhode Island,

739 the Court forcefully rejected the absolute

version of the notice rule, regardless of rationale. Under such a rule,

it said, “[a] State would be allowed, in effect, to put an expiration

date on the Takings Clause.” 740 Whether any role is left for preacquisition regulation in the takings analysis, however, the Court’s majority opinion did not say, leaving the issue to dueling concurrences

from Justice O’Connor (prior regulation remains a factor) and Justice Scalia (prior regulation is irrelevant). Less than a year later,

Justice O’Connor’s concurrence carried the day in extended dicta

in Tahoe-Sierra,

741 though the decision failed to elucidate the factors affecting the weighting to be accorded the pre-existing regime.

The “or otherwise” reference, the Court explained in Lucas,

742

was principally directed to cases holding that in times of great public peril, such as war, spreading municipal fires, and the like, property may be taken and destroyed without necessitating compensation. Thus, in United States v. Caltex, Inc.,

743 the owners of property

destroyed by retreating United States armies in Manila during World

War II were held not entitled to compensation, and in United States

v. Central Eureka Mining Co.,

744 the Court held that a federal order suspending the operations of a nonessential gold mine for the

duration of the war in order to redistribute the miners, unaccompanied by governmental possession and use or a forced sale of the facility, was not a taking entitling the owner to compensation for loss

of profits. Finally, the Court held that when federal troops occupied

several buildings during a riot in order to dislodge rioters and looters who had already invaded the buildings, the action was taken

as much for the owners’ benefit as for the general public benefit

and the owners must bear the costs of the damage inflicted on the

buildings subsequent to the occupation.745

739 533 U.S. 606 (2001).

740 533 U.S. at 627.

741 535 U.S. at 335.

742 505 U.S. at 1029 n.16.

743 344 U.S. 149 (1952). In dissent, Justices Black and Douglas advocated the

applicability of a test formulated by Justice Brandeis in Nashville, C. & St. L. Ry. v.

Walters, 294 U.S. 405, 429 (1935), a regulation case, to the effect that “when particular individuals are singled out to bear the cost of advancing the public convenience,

that imposition must bear some reasonable relation to the evils to be eradicated or

the advantages to be secured.”

744 357 U.S. 155 (1958).

745 National Bd. of YMCA v. United States, 395 U.S. 85 (1969). “An undertaking

by the government to reduce the menace from flood damages which were inevitable

but for the Government’s work does not constitute the Government a taker of all

lands not fully and wholly protected. When undertaking to safeguard a large area

from existing flood hazards, the government does not owe compensation under the

AMENDMENT 5—RIGHTS OF PERSONS 1597
The first prong of the Agins test,746 asking whether land use

controls “substantially advance legitimate governmental interests,”

has now been erased from takings jurisprudence, after a quartercentury run. The proper concern of regulatory takings law, said Lingle

v. Chevron U.S.A. Inc.,

747 is the magnitude, character, and distribution of the burdens that a regulation imposes on property rights.

In “stark contrast,” the “substantially advances” test addresses the

means-end efficacy of a regulation, more in the nature of a due process inquiry.748 As such, it is not a valid takings test.

A third type of inverse condemnation, in addition to regulatory

and physical takings, is the exaction taking. A two-part test has

emerged. The first part debuted in Nollan v. California Coastal Commission,

749 and holds that in order not to be a taking, an exaction

condition on a development permit approval (requiring, for example, that a portion of a tract to be subdivided be dedicated for

public roads) 750 must substantially advance a purpose related to the

underlying permit. There must, in short, be an “essential nexus”

between the two; otherwise the condition is “an out-and-out plan of

extortion.” 751 The second part of the exaction-takings test, announced in Dolan v. City of Tigard 752 specifies that the condition,

to not be a taking, must be related to the proposed development

not only in nature, per Nollan, but also in degree. Government must

establish a “rough proportionality” between the burden imposed by

such conditions on the property owner, and the impact of the propFifth Amendment to every landowner which it fails to or cannot protect.” United

States v. Sponenbarger, 308 U.S. 256, 265 (1939).

746 Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).

747 544 U.S. 528 (2005).

748 544 U.S. at 542.

749 483 U.S. 825 (1987).

750 A third type of inverse condemnation, in addition to regulatory and Nollan,

also applies to exactions imposed as conditions precedent to permit approval. Koontz

v. St. Johns River Water Mgmt. Dist., 570 U.S. ___, No. 11–1447 (2013). To the argument that nothing is “taken” when a permit is denied for failure to agree to a condition precedent, the Court stated that what is at stake is not whether a taking has

occurred, but whether the right not to have property taken without just compensation has been burdened impermissibly. Id. at 10. The Court does not discuss what

remedies might be available to a plaintiff who refuses to accept certain demanding

conditions precedent and thereby is refused a permit.

751 483 U.S. at 837. Justice Scalia, author of the Court’s opinion in Nollan, amplified his views in a concurring and dissenting opinion in Pennell v. City of San

Jose, 485 U.S. 1 (1988), explaining that “common zoning regulations requiring subdividers to observe lot-size and set-back restrictions, and to dedicate certain areas

to public streets, are in accord with [constitutional requirements] because the proposed property use would otherwise be the cause of” the social evil (e.g., congestion)

that the regulation seeks to remedy. By contrast, the Justice asserted, a rent control restriction pegged to individual tenant hardship lacks such cause-and-effect relationship and is in reality an attempt to impose on a few individuals public burdens that “should be borne by the public as a whole.” 485 U.S. at 20, 22.

752 512 U.S. 374 (1994).

1598 AMENDMENT 5—RIGHTS OF PERSONS
erty owner’s proposed development on the community—at least in

the context of adjudicated (rather than legislated) conditions.

Nollan and Dolan occasioned considerable debate over the breadth

of what became known as the “heightened scrutiny” test. The stakes

were plainly high in that the test, where it applies, lessens the traditional judicial deference to local police power and places the burden of proof as to rough proportionality on the government. In City

of Monterey v. Del Monte Dunes at Monterey, Ltd.,

753 the Court unanimously confined the Dolan rough proportionality test, and, by implication, the Nollan nexus test, to the exaction context that gave

rise to those cases. Still unclear, however, is whether the Court meant

to place outside Dolan exactions of a purely monetary nature, in

contrast with the physically invasive dedication conditions involved in Nollan and Dolan.

754 The Court clarified this uncertainty

in Koontz v. St. Johns River Water Management District by holding

that monetary exactions imposed under land use permitting were

subject to essential nexus/rough proportionality analysis.755

The announcement following Penn Central of the above per se

rules in Loretto (physical occupations), Agins and Lucas (total elimination of economic use), and Nollan/Dolan (exaction conditions)

prompted speculation that the Court was replacing its ad hoc Penn

Central approach with a more categorical takings jurisprudence. Such

speculation was put to rest, however, by three decisions from 2001

to 2005 expressing distaste for categorical regulatory takings analysis. These decisions endorse Penn Central as the dominant mode of

analysis for inverse condemnation claims, confining the Court’s per

se rules to the “relatively narrow” physical occupation and total wipeout circumstances, and the “special context” of exactions.756

Following the Penn Central decision, the Court grappled with

the issue of the appropriate remedy property owners should pursue

in objecting to land use regulations.757 The remedy question arises

753 526 U.S. 687 (1999).

754 A strong hint that monetary exactions are indeed outside Nollan/Dolan was

provided in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546 (2005), explaining that

these decisions were grounded on the doctrine of unconstitutional conditions as applied to easement conditions that would have been per se physical takings if condemned directly.

755 570 U.S. ___, No. 11–1447 (2013).

756 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005). The other two decisions are Palazzolo v. Rhode Island, 533 U.S. 606 (2001), and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).

757 See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) (issue not reached

because property owners challenging development density restrictions had not submitted a development plan); Hodel v. Virginia Surface Mining & Recl. Ass’n, 452

U.S. 264, 293–97 (1981), and Hodel v. Indiana, 452 U.S. 314, 333–36 (1981) (rejecting facial taking challenges to federal strip mining law).

AMENDMENT 5—RIGHTS OF PERSONS 1599
because there are two possible constitutional objections to be made

to regulations that go “too far” in reducing the value of property or

which do not substantially advance a legitimate governmental interest. The regulation may be invalidated as a denial of due process, or may be deemed a taking requiring compensation, at least

for the period in which the regulation was in effect. The Court finally resolved the issue in First English Evangelical Lutheran Church

v. County of Los Angeles, holding that when land use regulation is

held to be a taking, compensation is due for the period of implementation prior to the holding.758 The Court recognized that, even though

government may elect in such circumstances to discontinue regulation and thereby avoid compensation for a permanent property deprivation, “no subsequent action by the government can relieve it

of the duty to provide compensation for the period during which

the taking was effective.” 759 Outside the land-use context, however,

the Court has now recognized a limited number of situations where

invalidation, rather than compensation, remains the appropriate takings remedy.760

The process of describing general criteria to guide resolution of

regulatory taking claims, begun in Penn Central, has reduced to some

extent the ad hoc character of takings law. It is nonetheless true

that not all cases fit neatly into the categories delimited to date,

and that still other cases that might be so categorized are explained in different terms by the Court. The overriding objective,

the Court frequently reminds us, is to vitalize the Takings Clause’s

protection against government “forcing some people alone to bear

public burdens which, in all fairness and justice, should be borne

by the public as a whole.” 761 Thus a taking may be found if the

effect of regulation is enrichment of the government itself rather

than adjustment of the benefits and burdens of economic life in pro758 482 U.S. 304 (1987). The decision was 6–3, Chief Justice Rehnquist’s opinion of the Court being joined by Justices Brennan, White, Marshall, Powell, and

Scalia, and Justice Stevens’ dissent being joined in part by Justices Blackmun and

O’Connor. The position the Court adopted had been advocated by Justice Brennan

in a dissenting opinion in San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S.

621, 636 (1981) (dissenting from Court’s holding that state court decision was not

“final judgment” under 28 U.S.C. § 1257).

759 482 U.S. at 321.

760 Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (statute imposing generalized monetary liability); Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory

requirement that small fractional interests in allotted Indian lands escheat to tribe,

rather than pass on to heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment

version of escheat statute).

761 Armstrong v. United States, 364 U.S. 40, 49 (1960). For other incantations

of this fairness principle, see Penn Central, 438 U.S. at 123–24; and Tahoe-Sierra

Pres. Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 322, 333–42–89 (2002).

1600 AMENDMENT 5—RIGHTS OF PERSONS
motion of the public good.762 Similarly, the Court looks askance at

governmental efforts to secure public benefits at a landowner’s expense—“government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions.” 763

On the other side of the coin, the nature as well as the extent

of property interests affected by governmental regulation sometimes takes on importance. Some strands are more important than

others. The right to exclude others from one’s land is so basic to

ownership that extinguishment of this right ordinarily constitutes

a taking.764 Similarly valued is the right to pass on property to one’s

heirs.765

Failure to incur administrative (and judicial) delays can result

in dismissal of an as-applied taking claim based on ripeness doctrine, an area of takings law that the Court has developed extensively since Penn Central. In the leading decision of Williamson County

Regional Planning Commission v. Hamilton Bank,

766 the Court announced the canonical two-part ripeness test for takings actions

brought in federal court. First, for an as-applied challenge, the property owner must obtain from the regulating agency a “final, definitive position” regarding how it will apply its regulation to the owner’s land. Second, when suing a state or municipality, the owner

must exhaust any possibilities for obtaining compensation from the

762 Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980) (government

retained the interest derived from funds it required to be deposited with the clerk

of the county court as a precondition to certain suits; the interest earned was not

reasonably related to the costs of using the courts, since a separate statute required

payment for the clerk’s services). By contrast, a charge for governmental services

“not so clearly excessive as to belie [its] purported character as [a] user fee” does

not qualify as a taking. United States v. Sperry Corp., 493 U.S. 52, 62 (1989).

763 Penn Central Transp. Co. v. New York City, 438 U.S. 104, 128 (1978). In

addition to the cases cited there, see also Kaiser Aetna v. United States, 444 U.S.

164, 180 (1979) (viewed as governmental effort to turn private pond into “public aquatic

park”); Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (“extortion” of

beachfront easement for public as permit condition unrelated to purpose of permit).

764 Nollan v. California Coastal Comm’n, 483 U.S. 825, 831–32 (1987) (physical

occupation occurs with public easement that eliminates right to exclude others); Kaiser Aetna v. United States, 444 U.S. 164 (1979) (imposition of navigation servitude

requiring public access to a privately-owned pond was a taking under the circumstances; owner’s commercially valuable right to exclude others was taken, and requirement amounted to “an actual physical invasion”). But see PruneYard Shopping

Center v. Robins, 447 U.S. 74, 84 (1980) (requiring shopping center to permit individuals to exercise free expression rights on property onto which public had been

invited was not destructive of right to exclude others or “so essential to the use or

economic value of [the] property” as to constitute a taking).

765 Hodel v. Irving, 481 U.S. 704 (1987) (complete abrogation of the right to pass

on to heirs fractionated interests in lands constitutes a taking), Babbitt v. Youpee,

519 U.S. 234 (1997) (same result based on “severe” restriction of the right).

766 473 U.S. 172 (1985).

AMENDMENT 5—RIGHTS OF PERSONS 1601
state or its courts before coming to federal court. Thus, the claim

in Williamson County was found unripe because the plaintiff had

failed to seek a variance (first prong of test), and had not sought

compensation from the state courts in question even though they

recognized inverse condemnation claims (second prong). Similarly,

in MacDonald, Sommer & Frates v. County of Yolo,

767 a final decision was found lacking where the landowner had been denied approval for one subdivision plan calling for intense development, but

that denial had not foreclosed the possibility that a scaled-down

(though still economic) version would be approved. In a somewhat

different context, a taking challenge to a municipal rent control ordinance was considered “premature” in the absence of evidence that

a tenant hardship provision had ever been applied to reduce what

would otherwise be considered a reasonable rent increase.768 Beginning with Lucas in 1992, however, the Court’s ripeness determinations have displayed an impatience with formalistic reliance on the

“final decision” rule, while nonetheless explicitly reaffirming it. In

Palazzolo v. Rhode Island,

769 for example, the Court saw no point

in requiring the landowner to apply for approval of a scaled-down

development of his wetland, since the regulations at issue made plain

that no development at all would be permitted there. “[O]nce it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a

reasonable degree of certainty, a takings claim is likely to have ripened.” 770

Facial challenges dispense with the Williamson County final decision prerequisite, though at great risk to the plaintiff in that, without pursuing administrative remedies, a claimant often lacks evidence that a statute has the requisite economic impact on his or

her property.771

The requirement that state remedies be exhausted before bringing a federal taking claim to federal court has occasioned countless

dismissals of takings claims brought initially in federal court, while

at the same time posing a bar under doctrines of preclusion to fil767 477 U.S. 340 (1986).

768 Pennell v. City of San Jose, 485 U.S. 1 (1988).

769 533 U.S. 606 (2001).

770 533 U.S. at 620. See also Suitum v. Tahoe Regional Planning Agency, 520

U.S. 725 (1997) (taking claim ripe despite plaintiff’s not having applied for sale of

her transferrable development rights, because no discretion remains to agency and

value of such rights is a simple issue of fact).

771 See, e.g., Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264, 295–97

(1981) (facial challenge to surface mining law rejected); United States v. Riverside

Bayview Homes, 474 U.S. 121, 127 (1985) (mere permit requirement does not itself

take property); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493–

502 (1987) (facial challenge to anti-subsidence mining law rejected).

1602 AMENDMENT 5—RIGHTS OF PERSONS
ing first in state court, per Williamson County, then relitigating in

federal court. The effect in many cases is to keep federal takings

claims out of federal court entirely—a consequence the plaintiffs’

bar has long argued could not have been intended by the Court. In

San Remo Hotel, L.P. v. City and County of San Francisco,

772 the

Court unanimously declined to create an exception to the federal

full faith and credit statute 773 that would allow relitigation of federal takings claims in federal court. Nor, said the Court, may an

England reservation of the federal taking claim in state court 774

be used to require a federal court to review the reserved claim, regardless of what issues the state court may have decided. While

concurring in the judgment, four justices asserted that the stateexhaustion prong of Williamson County “may have been mistaken.” 775

772 545 U.S. 323 (2005).

773 28 U.S.C. § 1738. The statute commands that “judicial proceedings . . . shall

have the same full faith and credit in every court within the United States . . . as

they have by law or usage in the courts of such State . . . .” The statute has been

held to encompass the doctrines of claim and issue preclusion.

774 See England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964).

775 San Remo Hotel, 545 U.S. at 348 (Chief Justice Rehnquist, and Justices

O’Connor, Kennedy, and Thomas).

AMENDMENT 5—RIGHTS OF PERSONS 1603