1271

FIFTH AMENDMENT

RIGHTS OF PERSONS

CONTENTS

Page

Indictment by Grand Jury ........................................................................................................ 1273

Double Jeopardy ........................................................................................................................ 1279

Development and Scope ..................................................................................................... 1279

Reprosecution Following Mistrial ...................................................................................... 1284

Reprosecution Following Acquittal .................................................................................... 1288

Acquittal by Jury ......................................................................................................... 1290

Acquittal by the Trial Judge ...................................................................................... 1290

Trial Court Rulings Terminating Trial Before Verdict ............................................ 1291

Reprosecution Following Conviction ................................................................................. 1293

Reprosecution After Reversal on Defendant’s Appeal .............................................. 1293

Sentence Increases ...................................................................................................... 1295

‘‘For the Same Offence’’ ...................................................................................................... 1297

Legislative Discretion as to Multiple Sentences ....................................................... 1297

Successive Prosecutions for ‘‘The Same Offense’’ ..................................................... 1299

The ‘‘Same Transaction’’ Problem .............................................................................. 1301

Self-Incrimination ...................................................................................................................... 1302

Development and Scope ..................................................................................................... 1302

The Power to Compel Testimony and Disclosure ............................................................ 1312

Immunity ..................................................................................................................... 1312

Required Records Doctrine ......................................................................................... 1315

Reporting and Disclosure ............................................................................................ 1317

Confessions: Police Interrogation, Due Process, and Self-Incrimination ....................... 1321

The Common Law Rule .............................................................................................. 1322

McNabb-Mallory Doctrine .......................................................................................... 1323

State Confession Cases ............................................................................................... 1324

From the Voluntariness Standard to Miranda ......................................................... 1327

Miranda v. Arizona ..................................................................................................... 1330

The Operation of the Exclusionary Rule .......................................................................... 1340

Supreme Court Review ............................................................................................... 1340

Procedure in the Trial Courts .................................................................................... 1341

Due Process ................................................................................................................................ 1343

History and Scope ............................................................................................................... 1343

Scope of the Guaranty ................................................................................................. 1344

Procedural Due Process ..................................................................................................... 1347

Generally ...................................................................................................................... 1348

Administrative Proceedings: A Fair Hearing ............................................................ 1348

Aliens: Entry and Deportation ................................................................................... 1352

Judicial Review of Administrative Proceedings ........................................................ 1354

Substantive Due Process .................................................................................................... 1356

Discrimination ............................................................................................................. 1356

Congressional Police Measures .................................................................................. 1359

Congressional Regulation of Public Utilities ............................................................ 1359

Congressional Regulation of Railroads ...................................................................... 1360
1272 AMENDMENT 5—RIGHTS OF PERSONS

Due Process—Continued

Substantive Due Process—Continued

Taxation ....................................................................................................................... 1361

Retroactive Taxes ........................................................................................................ 1363

Deprivation of Property: Retroactive Legislation ..................................................... 1364

Bankruptcy Legislation ............................................................................................... 1366

Right to Sue the Government ..................................................................................... 1367

Congressional Power to Abolish Common Law Judicial Actions ............................. 1368

Deprivation of Liberty: Economic Legislation ........................................................... 1368

National Eminent Domain Power ..................................................................................... 1369

Overview ...................................................................................................................... 1369

Public Use .................................................................................................................... 1371

Just Compensation ...................................................................................................... 1374

Interest .................................................................................................................. 1376

Rights for Which Compensation Must Be Made ............................................... 1377

Consequential Damages ...................................................................................... 1378

Enforcement of Right to Compensation ............................................................. 1379

When Property Is Taken ............................................................................................. 1380

Government Activity Not Directed at the Property .......................................... 1380

Navigable Waters ................................................................................................. 1382

Regulatory Takings .............................................................................................. 1382
1273

1Morse, 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 Capitall or Criminall there shall

be a grand Inquest who shall first present the offence. . . .’’

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
1274 AMENDMENT 5—RIGHTS OF PERSONS

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). 4This 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). 5Witnesses 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 emphasizing the point of institution of criminal proceedings, relevant to the right

or indictments on 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
AMENDMENT 5—RIGHTS OF PERSONS 1275

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 it was

essential and constitutionally required for the protection of one’s constitutional

rights that he have access to counsel, appointed if necessary, accepting 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 utilization 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 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) (now highly qualified

as to its scope, supra, p. 1265); Hale v. Henkel, 201 U.S. 43, 76–77 (1920), 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

in grand jury 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, while 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 per-
1276 AMENDMENT 5—RIGHTS OF PERSONS

questions 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, 190. 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 Id. at 9. 12 Id. at 9–13. 13 Id. at 13–15. The privacy rationale proceeds from Katz v. United States, 389

U.S. 347 (1967).

jury by a 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 upon a two-tiered analysis—’’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 Inasmuch as 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 which

may indicate nonindictable misbehavior, mis- or malfeasance of
AMENDMENT 5—RIGHTS OF PERSONS 1277

14The 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. Infra,

pp. 1854–57.

16 Ex parte Wilson, 114 U.S. 417 (1885). 17 Id. at 427. 18Mackin 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). 21Wong Wing v. United States, 163 U.S. 228, 237 (1896). 22 Ex parte Wilson, 114 U.S. 417 (1885). 23Mackin v. United States, 117 U.S. 348 (1886). 24Parkinson 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).

public 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 which 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 an accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he

shall not be put upon his trial, except on the accusation of a grand

jury. 20 Thus, an act which 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 which

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
1278 AMENDMENT 5—RIGHTS OF PERSONS

27Duke v. United States, 301 U.S. 492 (1937). 28See Stirone v. United States, 361 U.S. 212 (1960), wherein a variation between pleading and proof was held to deprive 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. 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). 34 395 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 supra, pp. 316–19.

months is a misdemeanor, which can be tried without indictment,

even though 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 While 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, e.g., 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 O’Callahan v. Parker, the Court in 1969 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 the acts took place. 34 This decision was overruled, however, in 1987, the Court emphasizing the ‘‘plain lan-
AMENDMENT 5—RIGHTS OF PERSONS 1279

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

regulation of the land and naval forces.’’ 36Solorio 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 Id. at 450–51. 38 Ex parte Quirin, 317 U.S. 1, 43, 44 (1942). 39Green v. United States, 355 U.S. 184, 187–88 (1957). The passage is often approvingly quoted 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). 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. 40M. FRIEDLAND, DOUBLE JEOPARDY (1969), part 1; 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).

guage’’ of Art. I, § 8, cl. 14, 35 and not directly addressing any possible limitation stemming from the language of the Fifth Amendment. 36 ‘‘The requirements of the Constitution are not violated

where . . . 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 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. 40 In this country, the
1280 AMENDMENT 5—RIGHTS OF PERSONS

41 J. SIGLER, DOUBLE JEOPARDY—THE DEVELOPMENT OF A LEGAL AND SOCIAL

POLICY 21–27 (1969). The first bill of rights which 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. 42 1 ANNALS OF CONGRESS 434 (June 8, 1789). 43 Id. at 753. 44 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. 45 302 U.S. 319 (1937). 46 Id. at 325, 326.

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. 41 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.’’ 42 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. 43 As approved by the Senate, however, and accepted by the

House for referral to the States, the present language of the clause

was inserted. 44

Throughout most of its history, this clause was binding only

against the Federal Government. In Palko v. Connecticut, 45 the

Court rejected 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.’’ 46 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,
AMENDMENT 5—RIGHTS OF PERSONS 1281

47 Id. at 328. 48 395 U.S. 784, 794–95 (1969). 49 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). 50The 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). 51 Id. And see 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). 52 260 U.S. 377 (1922). 53 Id. 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). 54 Benton v. Maryland, 395 U.S. 784 (1969), extended the clause to the States.

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. 47 In Benton v. Maryland, 48 however, the Court concluded

‘‘that the double jeopardy prohibition . . . 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.’’ 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. 49

In a federal system, different units of government 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. 50 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, 51 it was not until United States v. Lanza 52

that the conviction in federal court of a person previously convicted

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

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.’’ 53 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, 54 but it also reflects practical considerations that undesirable consequences could follow an overruling of
1282 AMENDMENT 5—RIGHTS OF PERSONS

55 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). 56 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). 57Grafton 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). 58 Heath v. Alabama, 474 U.S. 82 (1985) (defendant crossed state line in course

of kidnap murder, was prosecuted for murder in both states). 59 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); One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (forfeiture proceedings; one must ask whether the proceedings are remedial or punitive).

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. 55

The application of the clause to the States has therefore worked no

change in the ‘‘dual sovereign’’ doctrine. 56 Of course, when in fact

two different units of the government are subject to the same sovereign, the double jeopardy clause does bar separate prosecutions

by them for the same offense. 57 The dual sovereignty doctrine has

also been applied to permit successive prosecutions by two states

for the same conduct. 58

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.’’ 59 Despite

the Clause’s literal language, it can apply as well to sanctions that
AMENDMENT 5—RIGHTS OF PERSONS 1283

60The clause applies in juvenile court proceedings which are formally civil.

Breed v. Jones, 421 U.S. 519 (1975). See also 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); United States

v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (in determining whether a

forfeiture proceeding is remedial or punitive, congressional preference for a civil

sanction will be overridden only by ‘‘the clearest proof’’ to the contrary). 61 Abney v. United States, 431 U.S. 651 (1977). 62See United States v. DiFrancesco, 449 U.S. 117, 126–27 (1980) (citing cases). 63 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). 64See 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

are civil in form if they clearly are applied in a manner that constitutes ‘‘punishment.’’ 60

Because one prime purpose of the clause is the protection

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, a rare exception to the general rule prohibiting appeals from nonfinal orders. 61

During the 1970s especially, the Court decided an uncommonly

large number of cases raising double jeopardy claims. 62 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.’’ 63 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. While 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. 64 Oth-
1284 AMENDMENT 5—RIGHTS OF PERSONS

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

Brennan, White, Marshall, and Stevens). 66Thus, 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). 67The 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). 68 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

ers 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. 65 Still

other Justices have engaged in a form of balancing of defendants’

rights with society’s rights to determine when reprosecution should

be permitted when a trial ends prior to a final judgment not hinged

on the defendant’s culpability. 66 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. 67 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. 68 The reasons the Court has given for fixing the attach-
AMENDMENT 5—RIGHTS OF PERSONS 1285

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). 69Wade v. Hunter, 336 U.S. 684, 689 (1949). 70 United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion). 71 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. 72 United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). 73 Id.; Logan v. United States, 144 U.S. 263 (1892). 74Simmons 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 which indicted

defendant and was therefore disqualified); Wade v. Hunter, 336 U.S. 684 (1949)

(court-martial discharged because enemy advancing on site). 75 Illinois v. Somerville, 410 U.S. 458, 463 (1973).

ment 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.’’ 69 The reason the

defendant’s right is so ‘‘valued’’ is that he has a legitimate interest

in completing the trial ‘‘once and for all’’ and ‘‘conclud[ing] his confrontation with society,’’ 70 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. 71 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 mistrial may be the result of ‘‘manifest necessity,’’ 72 such as

where, for example, the jury cannot reach a verdict 73 or circumstances plainly prevent the continuation of the trial. 74 Difficult

has been the answer, however, when the doctrine of ‘‘manifest necessity’’ has been 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. 75 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
1286 AMENDMENT 5—RIGHTS OF PERSONS

76 Id. at 464. 77Downum v. United States, 372 U.S. 734 (1963). 78 Illinois v. Somerville, 410 U.S. 458, 464–65, 468–69 (1973). 79 434 U.S. 497 (1978). 80 ‘‘Manifest necessity’’ characterizes the burden the prosecutor must shoulder

in justifying retrial. Id. 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.

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 appellate court.’’ 76 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. 77 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

which the prosecutor could use to abort a trial that was not proceeding successfully and to obtain a new trial in which his advantage would be increased. 78

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

v. Washington, 79 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. 80

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
AMENDMENT 5—RIGHTS OF PERSONS 1287

81 367 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). 82 United States v. Jorn, 400 U.S. 470, 483 (1971). 83 Id. 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. 84 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.) 85 United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion). 86 United States v. Scott, 437 U.S. 82, 93 (1978). 87 424 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

mistrial or granting the prosecutor’s motion. The cases are in doctrinal disarray. Thus, in Gori v. United States, 81 the Court permitted 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 the judge’s action was an abuse of discretion, it approved

retrial on the conclusion 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. 82 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.’’ 83 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. 84

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.’’ 85

‘‘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.’’ 86 In United States

v. Dinitz, 87 the trial judge had excluded defendant’s principal at-
1288 AMENDMENT 5—RIGHTS OF PERSONS

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

States v. Tateo, 377 U.S. 463, 468 n.3 (1964). 89 456 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. 90 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).

torney for misbehavior and had then given defendant the option of

recess 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,

while 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 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, 88 but in Oregon v. Kennedy, 89 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.’’ 90 ‘‘[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 Govern-
AMENDMENT 5—RIGHTS OF PERSONS 1289

91 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 infra, pp. 1299–1302. 92 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. 93 195 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). 94 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. Id. 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). 95Palko v. Connecticut, 302 U.S. 319 (1937). Palko is no longer viable. Cf.

Greene v. Massey, 437 U.S. 19 (1978). 96The 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).

ment, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.’ ’’ 91

While 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.’’ 92

The acquittal being final, there is no governmental appeal constitutionally possible from such a judgment. This was firmly established in Kepner v. United States, 93 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. 94 Previously, under the

due process clause, there was no barrier to state provision for prosecutorial appeals from acquittals. 95 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

rulings, 96 but in that year Congress enacted a new statute permitting appeals in all criminal cases in which indictments are dis-
1290 AMENDMENT 5—RIGHTS OF PERSONS

97Title III of the Omnibus Crime Control Act, Pub. L. No. 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). 98 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

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 infra, p. 1294. 99 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). 100 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. 101 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).

missed, except in those cases in which the double jeopardy clause

prohibits further prosecution. 97 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. 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. 98

Acquittal by the Trial Judge.—Similarly, when a trial judge

acquits a defendant, that action concludes the matter. 99 There is

no possibility of retrial for the same offense. 100 But it may be difficult at times to determine whether the trial judge’s action was in

fact an acquittal or was a dismissal or some other action which the

prosecution may be able to appeal. 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.’’ 101 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
AMENDMENT 5—RIGHTS OF PERSONS 1291

102 Id. 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). 103 437 U.S. 54 (1978). The double jeopardy applications of an appellate court’s

reversal for insufficient evidence are discussed infra, pp. 1294–95. 104 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. 105Serfass 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). 106Supra, pp. 1284–88.

constituting the offense. 102 Even if, as happened in Sanabria v.

United States, 103 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.

Some limited exceptions do 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 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 judgment

thereon. 104 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, the prosecution may appeal if jeopardy had not

yet attached in accordance with the federal standard. 105

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; 106 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 sub-
1292 AMENDMENT 5—RIGHTS OF PERSONS

107Supra, p. 1290. 108 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). 109Supra, pp. 1289–90. See United States v. Scott, 437 U.S. 82, 84–86 (1978);

United States v. Sisson, 399 U.S. 267, 291–96 (1970). 110 Cf. Lee v. United States, 432 U.S. 23 (1977). 111 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). 112 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).

ject to retrial. 107 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. 108 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 1971 law. 109 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. 110 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; 111 if further proceedings, such as continuation of the trial

or some further factfinding, was necessary, appeal was not permitted. 112 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 inno-
AMENDMENT 5—RIGHTS OF PERSONS 1293

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

whenever further proceedings would be required after reversals. 114 North Carolina v. Pearce, 395 U.S. 711, 717 (1969). 115 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). For the conceptually-related

problem of trial for a ‘‘separate’’ offense arising out of the same transaction, see

infra, pp. 1299–1301. 116 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). 117 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).

cence. 113 Such dismissals relating to guilt 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.’’ 114 It is ‘‘settled’’ that ‘‘no man can be twice lawfully

punished for the same offense.’’ 115 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. 116 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. 117 Although it has char-
1294 AMENDMENT 5—RIGHTS OF PERSONS

118Green 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). 119 Justice Holmes in dissent 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 supra, p. 1289 n.94. 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 differentiate itself 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). 120 355 U.S. 184 (1957). 121The 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). 122See 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 jeopardy-barred 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. 123 437 U.S. 1 (1978).

acterized the ‘‘waiver’’ theory as ‘‘totally unsound and indefensible,’’ 118 the Court has been hesitant in formulating a new theory

in maintaining the practice. 119

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, 120 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. 121

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. 122

Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States, 123
AMENDMENT 5—RIGHTS OF PERSONS 1295

124 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 Municipal Court v. Lydon, 466 U.S. 294 (1984), holding that a defendant who had elected to undergo a bench trial with no appellate

review but with 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. 125Tibbs 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). 126Lockhart 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). 127 Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874); North Carolina v. Pearce,

395 U.S. 711, 717 (1969). For the application of the principle in cases in which the

same conduct has violated more than one criminal statute, see infra, pp. 1297–99.

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.’’ 124 The policy underlying the clause

of not allowing the prosecution to make repeated efforts to convict

forecloses 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. 125 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. 126

Sentence Increases.—The double jeopardy clause protects

against imposition of multiple punishment for the same offense. 127

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
1296 AMENDMENT 5—RIGHTS OF PERSONS

128 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874). 129 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. 130 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. Supra,

395 U.S. at 717–19. 131 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. 132 United States v. DiFrancesco, 449 U.S. 117 (1980). Four Justices dissented.

Id. at 143, 152 (Justices Brennan, White, Marshall, and Stevens).

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. 128 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. 129 Moreover, a defendant who is retried 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. 130 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. 131

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. 132 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
AMENDMENT 5—RIGHTS OF PERSONS 1297

133 Jones v. Thomas, 491 U.S. 376, 381–82 (1989). 134Supra, pp. 1281–82. 135There are essentially two kinds of situations here. There are ‘‘double-description’’ 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

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.

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

felony-murder. Even though the first sentence had been commuted

and 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. 133

‘‘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. 134 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. 135

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
1298 AMENDMENT 5—RIGHTS OF PERSONS

136 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. Inasmuch as the case involved separate offenses which met this test, Albernaz strictly

speaking is not a square holding and previous dicta is otherwise, but Albernaz is

well-considered dicta 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). 137Missouri v. Hunter, 459 U.S. 359 (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. 138 United States v. Universal C.I.T. Corp., 344 U.S. 218, 221–22 (1952). 139 284 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). 140 357 U.S. 386 (1958).

prosecution a choice of charges that may be tried in one proceeding,

thereby making multiple punishments possible for essentially one

transaction. 136 ‘‘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.’’ 137 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’’ 138 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, 139 ‘‘is that where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied

to determine whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does not.’’

Thus, in Gore v. United States, 140 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 oth-
AMENDMENT 5—RIGHTS OF PERSONS 1299

141See 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).

142 United States v. Felix, 112 S. Ct. 1377, 1385 (1992).

143Garrett 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).

144 445 U.S. 684 (1980).

145The 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).

146 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).

ers; prosecuting him on all three counts in the same proceeding

was therefore permissible. 141 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,’’ 142 or the related principle that Congress may prescribe that predicate offenses and ‘‘continuing criminal enterprise’’

are separate offenses. 143 On the other hand, in Whalen v. United

States, 144 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. 145 In this as in other

areas, a guilty plea ordinarily precludes collateral attack. 146

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
1300 AMENDMENT 5—RIGHTS OF PERSONS

147See Grady v. Corbin, 495 U.S. 508, 518–19 (1990). 148 432 U.S. 161 (1977). Cf. In re Nielson, 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). 149See 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). 150 Illinois v. Vitale, 447 U.S. 410 (1980). 151 495 U.S. 508 (1990). 152 Id. at 521 (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). 153The 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

conviction. 147 In Brown v. Ohio, 148 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,’’ of

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. 149 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, inasmuch as

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. 150 In Grady v. Corbin, 151 the Court modified the

Brown approach, stating that the appropriate focus is on same conduct rather than same evidence. 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. 152

The Brown Court had noted some limitations applicable to its holding, 153 and more have emerged subsequently. Principles appro-
AMENDMENT 5—RIGHTS OF PERSONS 1301

dismissal of remaining charges over prosecution’s objections does not bar subsequent

prosecution on those ‘‘remaining’’ counts). 154 United States v. Felix, 112 S. Ct. 1377, 1384 (1992). 155 356 U.S. 464 (1958). See also Ciucci v. Illinois, 356 U.S. 571 (1958). 156 397 U.S. 436 (1970). 157 ‘‘ ‘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). 158 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.

priate in the ‘‘classically simple’’ lesser-included offense and related

situations are not readily transposible 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.’’ 154

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, 155 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, 156 however, presented the

Court with the Hoag fact situation directly under the double jeopardy 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 157 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. 158 Several Justices would have gone further and

required a compulsory joinder of all charges against a defendant
1302 AMENDMENT 5—RIGHTS OF PERSONS

159 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). 160Garrett 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). 161Maguire, 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).

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. 159 But the

Court has ‘‘steadfastly refused to adopt the ‘single transaction’ view

of the Double Jeopardy Clause.’’ 160

SELF-INCRIMINATION

Development and Scope

Source of this 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 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. 161

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
AMENDMENT 5—RIGHTS OF PERSONS 1303

162The traditional historical account is 8 J. WIGMORE, A TREATISE ON THE

ANGLO-AMERICAN 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). 163 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). 164 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. 165 1 ANNALS OF CONGRESS 434 (June 8, 1789). 166 Id. at 753 (August 17, 1789). 167 ‘‘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 selfdeprecatory statement; 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 (1954). A dozen justifications have been suggested for the

privilege. 8 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE 2251 (J. McNaughton rev. 1961).

without oath, or under oath in a court of equity or a court of common law. 162 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, 163 and the privilege was one of those recommended by several state ratifying conventions for inclusion in a federal bill of rights. 164 Madison’s version of the clause read ‘‘nor shall be compelled to be a witness

against himself,’’ 165 but upon consideration by the House an

amendment was agreed to insert ‘‘in any criminal case’’ in the provision. 166

The historical studies cited demonstrate that in England and

the colonies the privilege was narrower than the interpretation

now prevailing, a common situation reflecting the gradual expansion, or occasional contracting, of constitutional guarantees based

on the judicial application of the policies underlying the guarantees

in the context of new factual patterns and practices. The difficulty

is that the Court has generally failed to articulate the policy objectives underlying the privilege, usually citing a ‘‘complex of values’’

when it has attempted to state the interests served by it. 167 Commonly mentioned in numerous cases was the assertion that the
1304 AMENDMENT 5—RIGHTS OF PERSONS

168 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). 169 ‘‘[T]he basic purposes that lie behind the privilege against self-incrimination

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); Miranda v. Arizona, 384 U.S. 436, 460 (1966); Schmerber

v. California, 384 U.S. 757, 760–765 (1966). See also California v. Byers, 402 U.S.

424, 448–58 (1971) (Justice Harlan concurring). For a critical modern view of the

privilege, see Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional

Change, 37 U. CIN. L. REV. 671 (1968). 170 Ullmann v. United States, 350 U.S. 422, 438–39 (1956). 171 Hoffman v. United States, 341 U.S. 479, 486–87 (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).

privilege was designed to protect the innocent and to further the

search for truth. 168 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. 169 In

order to protect these interests and to preserve these values, the

privilege ‘‘is not to be interpreted 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.’’ 170

‘‘The 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 . . . . [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.’’ 171 Thus, a judge who would deny a claim of the privilege

must be ‘‘‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the
AMENDMENT 5—RIGHTS OF PERSONS 1305

172 341 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 (Justices White and Stewart dissenting). Where 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). 173 Hoffman v. United States, 341 U.S. 479 (1951); Mason v. United States, 244

U.S. 362 (1917). 174 Rogers v. United States, 340 U.S. 367 (1951); United States v. Monia, 317

U.S. 424 (1943). The ‘‘waiver’’ concept here as in other recent cases 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 testify 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. 175 United States v. White, 322 U.S. 694, 701 (1944); Baltimore & O.R.R. v. ICC,

221 U.S. 612, 622 (1911); Hale v. Henkel, 201 U.S. 43, 69–70, 74–75 (1906). 176 United States v. White, supra, 699–700; 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,

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).

answer[s] cannot possibly have such tendency’ to incriminate.’’ 172

The witness must have reasonable cause to apprehend danger from

an answer, but he may not be the sole judge of the validity of his

claim. While the trial judge may not require a witness to disclose

so much of the danger as to render the privilege nugatory, he must

determine whether there is a reasonable apprehension of incrimination by considering the circumstances of the case, his knowledge

of matters surrounding the inquiry, and the nature of the evidence

which is demanded from the witness. 173 One must explicitly claim

his privilege or he will be 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. 174

The privilege against self-incrimination is a personal one and

cannot be utilized 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. 175 Neither may a corporate

official with custody of corporate documents which incriminate him

personally resist their compelled production on the assertion of his

personal privilege. 176
1306 AMENDMENT 5—RIGHTS OF PERSONS

177Thus, 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).

178 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.

179Miranda v. Arizona, 384 U.S. 436 (1966).

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. 177 Conversely, there is no

valid claim on the ground that the information sought can be used

in proceedings which are not criminal in nature. 178 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. 179 What the privilege protects against is compulsion of

‘‘testimonial’’ disclosures; 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

blood does not compel him to incriminate himself within the mean-
AMENDMENT 5—RIGHTS OF PERSONS 1307

180Schmerber 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 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. 181Fisher v. United States, 425 U.S. 391 (1976), however, holds that 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 if the documents contained the writing of the person

being compelled to produce them, that would be insufficient to trigger the privilege,

unless the government had compelled him to write in the first place. Id. at 410 n.11.

Only if by complying with the subpoena the person would be making a communication that was both ‘‘testimonial’’ and ‘‘incriminating,’’ such as by conceding the existence of the papers or indicating that these are the papers sought, would he have

a valid claim of privilege, and even there one would have to evaluate the facts and

circumstances of the particular case to reach a determination. Id. at 410. 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). But 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). 182 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,

ing of the clause, 180 although compelling him to produce private

papers may. 181

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. 182 But the compulsion need not be imprisonment; it can as
1308 AMENDMENT 5—RIGHTS OF PERSONS

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

Public Interest Research Group, 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). 183Garrity 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 can 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). 184Spevack v. Klein, 385 U.S. 511 (1967). 185 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). 186Spencer v. Texas, 385 U.S. 554, 561 (1967); cf. Michelson v. United States,

335 U.S. 469 (1948). 187 380 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

self-incrimination 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’’).

well be termination of public employment 183 or disbarment of a

lawyer 184 as a legal consequence of a refusal to make incriminating admissions. In extending the concept of coercion, however, the

Court has not developed a clear doctrinal explanation to identify

the differences between permissible and impermissible coercion. As

a general rule, it may be said that all of these cases involve the

ordering of some feature of a trial in such a way that a defendant

must choose between or among rights, with one choice being to risk

or to submit to self-incriminating disclosures by his actions.

It has long been the rule that a defendant who takes the stand

in his own behalf cannot then claim the privilege to defeat crossexamination on matters reasonably related to the subject matter of

his direct examination, 185 and that such a defendant may be impeached by proof of prior convictions. 186 But in Griffin v. California, 187 the Court refused to permit prosecutorial or judicial comment to the jury upon a defendant’s refusal to take the stand in

his own behalf, because such comment was a ‘‘penalty imposed by

courts for exercising a constitutional privilege’’ and ‘‘[i]t cuts down
AMENDMENT 5—RIGHTS OF PERSONS 1309

188While 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). 189 Chapman v. California, 386 U.S. 18 (1967); United States v. Hasting, 461

U.S. 499 (1983). 190Doyle 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). 191 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). 192Simmons 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). 193 Harrison v. United States, 392 U.S. 219 (1968). 194 Jackson v. United States, 390 U.S. 570, 583 (1968).

on the privilege by making its assertion costly.’’ 188 Prosecutors’

comments violating the Griffin rule can nonetheless constitute

harmless error. 189 Neither 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. 190 But where the defendant took the stand and testified, the Court permitted the impeachment use of his pre-arrest silence when that silence had in

no way been officially encouraged, through a Miranda warning or

otherwise. 191

Further, the Court held inadmissible at the subsequent trial a

defendant’s testimony at a hearing to suppress evidence wrongfully

seized, since 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. 192

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. 193 Most potentially

far-reaching 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. 194

While this ‘‘needless encouragement’’ test assessed the nature

of the choice required to be made by defendants against the
1310 AMENDMENT 5—RIGHTS OF PERSONS

195Parker 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 prosecution had solid evidence of their guilt; Richardson pled guilty because of his fear that

an allegedly coerced confession would be introduced into evidence. 196McGautha 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). 197Williams 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 utilized 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. 198 ‘‘The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation

strength of the governmental interest in the system requiring the

choice, the Court soon devolved 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. 195 The Court in an opinion by Justice Harlan

then formulated still another test in holding that a defendant in a

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. 196

Similarly, it has been 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. 197 Neither does it violate a

defendant’s self-incrimination privilege to create a presumption

upon the establishment of certain basic facts which the jury may

utilize to infer defendant’s guilt unless he rebuts the presumption. 198
AMENDMENT 5—RIGHTS OF PERSONS 1311

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. And see 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, infra. 199Prosecution may be precluded by tender of immunity, infra, pp. 1312–15, 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). 200 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). 201Gardner 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. 202See Slochower v. Board of 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. 203Malloy 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)). 204Murphy 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

The obligation to testify is not relieved by this clause, if, regardless of whether incriminating answers are given, a prosecution

is precluded, 199 or if the result of the answers is not incrimination,

but rather harm to reputation or exposure to infamy or disgrace. 200

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. 201 But it is unclear under

what other circumstances a public employer may discharge an employee who has claimed his privilege before another investigating

agency. 202

Finally, the rules established by the clause and the judicial interpretations are applicable against the States to the same degree

that they apply to the Federal Government, 203 and neither sovereign can compel discriminatory admissions which would incriminate the person in the other jurisdiction. 204
1312 AMENDMENT 5—RIGHTS OF PERSONS

to give testimony which might incriminate him under state law), Knapp v. Schweitzer, 357 U.S. 371 (1958) (State may compel a witness to give testimony which 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 since the State could not extend the immunity to federal courts the

Supreme Court would not permit the introduction of evidence into federal courts

which had been compelled by a State or which 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 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, supra,

378 U.S. at 58–63, 77. 205Kastigar 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). 206 9 Anne, c. 14, 3–4 (1710). See Kastigar v. United States, 406 U.S. 441, 445

n.13 (1972). 207 Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed

while testifying before Congress. 208 Ch. 11, 12 Stat. 333 (1862). 209 142 U.S. 547 (1892). The statute struck down was ch. 13, 15 Stat. 37 (1868).

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.’’ 205 Apparently the first immunity statute was

enacted by Parliament in 1710 206 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. 207

Revised in 1862 so as merely to prevent the use of the congressional testimony at a subsequent prosecution of any congressional

witness, 208 the statute was soon rendered unenforceable by the

ruling in Counselman v. Hitchcock 209 that an analogous limited
AMENDMENT 5—RIGHTS OF PERSONS 1313

210 Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). And see id. at 586. 211 Id. at 585–86. 212 ‘‘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 were subsequently prosecuted

on independent evidence for the offense. 213 Ch. 83, 27 Stat. 443 (1893). 214 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, since 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. 215 Ullmann v. United States, 350 U.S. 422, 438 (1956), (quoting Shapiro v.

United States, 335 U.S. 1, 6 (1948)). 216 ‘‘[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.’’ Id. at 438–39. The internal quotation is from Boyd v. United

States, 116 U.S. 616, 634 (1886). 217Kastigar 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

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 210

and it only prohibited future use of the compelled testimony. 211

The latter language accentuated a division between adherents of

‘‘transactional’’ immunity and of ‘‘use’’ immunity which has continued to the present. 212 In any event, following Counselman, Congress enacted a statute which conferred transactional immunity as

the price for being able to compel testimony, 213 and the Court sustained this law in a five-to-four decision. 214

‘‘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.’ ’’ 215 So spoke Justice Frankfurter in 1956, broadly

reaffirming Brown v. Walker and upholding the constitutionality of

a federal immunity statute. 216 Because all but one of the immunity

acts passed after Brown v. Walker were transactional immunity

statutes, 217 the question of the constitutional sufficiency of use im-
1314 AMENDMENT 5—RIGHTS OF PERSONS

complete immunity from a prosecution.’’ The statute also failed to prohibit the use

of derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920). 218 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. 219Malloy 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). 220Murphy 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. 221Marchetti v. United States, 390 U.S. 39, 58 (1968). 222Organized Crime Control Act of 1970, Pub. L. No. 91–452, § 201(a), 84 Stat.

922, 18 U.S.C. §§ 6002–03. 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).

munity did not arise, although dicta in cases dealing with immunity continued to assert the necessity of the former type of

grant. 218 But beginning in 1964, when it applied the self-incrimination clause to the States, the Court was faced with the problem

which 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. 219 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. 220 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. 221

Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only. 222

Soon tested, this statute was sustained in Kastigar v. United
AMENDMENT 5—RIGHTS OF PERSONS 1315

223 406 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). 224Kastigar v. United States, 406 U.S. 441, 459 (1972). 225 Id. 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 self-incrimination

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). 226 Boyd v. United States, 116 U.S. 616 (1886). Supra, p. 1225. But see Fisher

v. United States, 425 U.S. 391 (1976). 227Supra, p. 1305.

States. 223 ‘‘[P]rotection coextensive with the privilege is the degree

of protection which the Constitution requires,’’ wrote Justice Powell

for the Court, ‘‘and is all that the Constitution requires. . . .’’ 224

‘‘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.’’ 225

Required Records Doctrine.—While the privilege is applicable to one’s papers and effects, 226 it does not extend to corporate

persons, hence corporate records, as has been noted, are subject to

compelled production. 227 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 en-
1316 AMENDMENT 5—RIGHTS OF PERSONS

228Shapiro v. United States, 335 U.S. 1, 33 (1948), (quoting Davis v. United

States, 328 U.S. 582, 589–90 (1946), (quoting in turn Wilson v. United States, 221

U.S. 361, 380 (1911))). Wilson is the source of the required-records doctrine in its

dicta, the holding in 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, supra, 36, 56–70

(Justice Frankfurter dissenting). 229 Id. at 51. 230 Id. at 32. 231 Id.

forcement of restrictions validly established.’ ’’ 228 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

record-keeper. ‘‘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 record-keeping and reporting requirements. Unquestionably they are enormous in volume.’’ 229

‘‘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 recordkeeper himself.’’ 230 But the only limit which

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.’’ 231 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.
AMENDMENT 5—RIGHTS OF PERSONS 1317

232 274 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 self-incrimination 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, irrespective of whether a good-faith erroneous

assertion of the privilege could subject him to prosecution, a question not resolved. 233The expansion of the commerce power would now obviate reliance on the taxing power. 234 United States v. Kahriger, 345 U.S. 22 (1953); Lewis v. United States, 348

U.S. 419 (1955). 235 382 U.S. 70 (1965).

Reporting and Disclosure.—The line of cases begins with

United States v. Sullivan 232 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.

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 . . . .’’ Utilizing its taxing power to reach

gambling activities over which it might not have had jurisdiction

otherwise, 233 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) since the threshold decision to gamble was voluntary, the required disclosures were not compulsory, and (3) since

registration required disclosure only of prospective conduct, the

privilege, limited to past or present acts, did not apply. 234

Constitutional limitations appeared, however, in Albertson v.

SACB, 235 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

Sullivan the questions in the income tax return were neutral on

their face and directed at the public at large, but here they are di-
1318 AMENDMENT 5—RIGHTS OF PERSONS

236 Id. at 79. The decision was unanimous, 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). 237Marchetti 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). 238Marchetti v. United States, 390 U.S. 39, 48 (1968). 239 ‘‘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.’’’ Id. at 50. 240 ‘‘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.’’ Id. 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.

rected 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.’’ 236

The gambling tax reporting scheme was next struck down by

the Court. 237 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.’’ 238 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. 239 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. 240

And the privilege was not governed by a ‘‘rigid chronological distinction’’ so that it protected only past or present conduct, but also

reached future self-incrimination the danger of which is not specu-
AMENDMENT 5—RIGHTS OF PERSONS 1319

241Marchetti 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). 242Marchetti v. United States, 390 U.S. 39, 57 (1968). 243 402 U.S. 424 (1971)

lative and insubstantial. 241 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 non-criminal 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.’’ 242

Most recent of this line of cases is California v. Byers, 243

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 Albertson-Marchetti line of cases, because the
1320 AMENDMENT 5—RIGHTS OF PERSONS

244 Id. at 427–31 (Chief Justice Burger and Justices Stewart, White, and

Blackmun). 245 ‘‘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 revenues; 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.’’ Id. at 437–38. 246 Id. 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). 247 493 U.S. 549 (1990). 248 Id. 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 Albertson-Marchetti sense.

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. 244 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. 245 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. 246 Byers was

applied in Baltimore Dep’t of Social Services v. Bouknight 247 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 for ‘‘compelling reasons unrelated to criminal

law enforcement’’: concern for the child’s safety. 248 Moreover, be-
AMENDMENT 5—RIGHTS OF PERSONS 1321

249 Bram v. United States, 168 U.S. 532, 542 (1897). 250Miranda v. Arizona, 384 U.S. 436 (1966). 251 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE

§ 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id., § 2266 (McNaughton rev. 1961).

It appears that while the two rules did develop separately, 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).

cause 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 SelfIncrimination

‘‘In criminal trials, in the courts of the United 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.’ ’’ 249 This language in an 1897 case marked

a sharp if unacknowledged break with the doctrine of previous

cases in which the Court had applied the common-law test of voluntariness to determine the admissibility of confessions, and, while

the language was never expressly disavowed in subsequent cases,

the Court seems nevertheless to have proceeded along due process

standards rather than self-incrimination analysis. Because the selfincrimination clause for most of this period was not applicable to

the States, the admissibility of confessions in state courts was determined under due process standards developed from common-law

voluntariness principles. It was only after the Court extended the

self-incrimination clause to the States that a divided Court

reaffirmed and extended the 1897 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. 250 Though recent research tends to treat as

oversimplified Wigmore’s conclusion that ‘‘there never was any historical connection . . . between the constitutional clause and the

confession-doctrine,’’ 251 the fact is that the contention, coupled

with the inapplicability of the self-incrimination clause to the

States, was apparently the basis until recently for the Supreme

Court’s adjudication of confession cases.
1322 AMENDMENT 5—RIGHTS OF PERSONS

252 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). 253 Hopt v. Utah, 110 U.S. 574, 584–85 (1884). Utah at this time was a territory

and subject to direct federal judicial supervision. 254Pierce v. United States, 160 U.S. 335 (1896); Sparf 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. 255 168 U.S. 532 (1897). ‘‘[T]he generic language of the [Fifth] Amendment was

but a crystallization of the doctrine as to confessions, well settled when the Amendment was adopted. . . .’’ Id. at 543. 256 Id. at 549. 257Ziang 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. 258 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).

The Common Law Rule.—Not until the latter part of the

eighteenth century did there develop a rule excluding coerced confessions from admission at trial; prior to that time, even confessions obtained by torture were admissible. As the rule developed in

England and in early United States jurisprudence, the rationale

was the unreliability of the confession’s contents when induced by

a promise of benefit or a threat of harm. 252 In its first decision on

the admissibility of confessions, the Court adopted the common-law

rule, stressing that while a ‘‘voluntary confession of guilt is among

the most effectual proofs in the law, from the very nature of such

evidence it must be subjected to careful scrutiny and received with

great caution.’’ ‘‘[T]he 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.’’ 253

Subsequent cases followed essentially the same line of thought. 254

Then, in Bram v. United States 255 the Court assimilated the common-law rule thus mentioned as a command of the Fifth Amendment and indicated that henceforth a broader standard for judging

admissibility was to be applied. 256 Though this rule 257 and the

case itself were subsequently approved in several cases, 258 the

Court could hold within a few years that a confession should not

be excluded merely because the authorities had not warned a sus-
AMENDMENT 5—RIGHTS OF PERSONS 1323

259Powers v. United States, 223 U.S. 303 (1912). 260 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). 261 318 U.S. 332 (1943). See also Anderson v. United States, 318 U.S. 350

(1943). 262 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). 263McNabb 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. 264Gallegos 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). 265 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. 266McNabb v. United States, 318 U.S. 332, 343 (1943); Mallory v. United

States, 354 U.S. 449, 452–53 (1957).

pect of his right to remain silent, 259 and more than once later

Courts 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. . . .’’ 260

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

federal courts was that in McNabb v. United States 261 it promulgated a rule excluding confessions obtained after an ‘‘unnecessary

delay’’ in presenting a suspect for arraignment after arrest. 262 This

rule, developed pursuant to the Court’s supervisory power over the

lower federal courts 263 and hence not applicable to the States as

a constitutional rule would have been, 264 was designed to implement the guarantees assured to a defendant by the Federal Rules

of Criminal Procedure, 265 and was clearly informed with concern

over incommunicado interrogation and coerced confessions. 266

While the Court never attempted to specify a minimum time after

which delay in presenting a suspect for arraignment would invalidate confessions, Congress in 1968 legislated to set a six-hour pe-
1324 AMENDMENT 5—RIGHTS OF PERSONS

267The provision was part of the Omnibus Crime Control and Safe Streets Act

of 1968, 82 Stat. 210, 18 U.S.C. § 3501(c). 268 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. 269 Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961) (announcing judgment

of the Court). 270 Id. at 602. 271 ‘‘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 conriod for interrogation following arrest before the suspect must be

presented. 267

State Confession Cases.—In its first encounter with a confession case arising from a state court, the Supreme Court set aside

a conviction based solely on confessions of the defendants which

had been extorted from them through repeated whippings with

ropes and studded belts. 268 For some thirty 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. 269 ‘‘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.’’ 270 Obviously,

a court seeking to determine whether the making of a confession

was voluntary operated under a severe handicap, inasmuch as the

interrogation process was in secret with only police and the suspect

witness to it, and inasmuch as the concept of voluntariness referred

to the defendant’s mental condition. 271 Despite, then, a bountiful

number of cases, binding precedents were few.
AMENDMENT 5—RIGHTS OF PERSONS 1325

ceptions ordinarily characterized as rules of law but which, also, comprehend both

induction from, and anticipation of, factual circumstances.’’ Id. at 603. See Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 973–82 (1966).

272 Brown v. Mississippi, 297 U.S. 278 (1936).

273 309 U.S. 227 (1940).

274 322 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.

275 316 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).

276 Blackburn v. Alabama, 361 U.S. 199, 206 (1960).

On the one hand, many of the early cases disclosed rather

clear instances of coercion of a nature that the Court could little

doubt produced involuntary confessions. Not only physical torture, 272 but other overtly coercive tactics as well have been condemned. Chambers v. Florida 273 held that five days of prolonged

questioning following arrests without warrants and incommunicado

detention made the subsequent confessions involuntary. Ashcraft v.

Tennessee 274 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, 275 voided a conviction based on a confession obtained from a suspect who

had been arrested illegally in one county and brought some 100

miles away to a county where questioning began, and who had

then been questioned continuously over the course of three days

while being driven from county to county and being 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.’’ 276
1326 AMENDMENT 5—RIGHTS OF PERSONS

277Lisenba v. California, 314 U.S. 219 (1941). 278Watts 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) (suspect 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. Id. at 57. 279 346 U.S. 156 (1953). 280 Id. at 185. 281 373 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). 282 Id. 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).

While the Court would not hold that prolonged questioning by

itself made a resultant confession involuntary, 277 it did increasingly find coercion present even in intermittent questioning over a

period of days of incommunicado detention. 278 In Stein v. New

York, 279 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. While 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.’’ 280 But by the time Haynes v.

Washington 281 was decided, holding inadmissible a confession

made by an experienced criminal because of the ‘‘unfair and inherently coercive context’’ in which the statement was made, it was

clear that the Court was adhering to a rule which found coercion

in the fact of prolonged interrogation without regard to the individual characteristics of the suspect. 282 However, the age and intel-
AMENDMENT 5—RIGHTS OF PERSONS 1327

283Gallegos 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. 284 Colorado v. Connelly, 479 U.S. 157 (1986). 285 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). 286 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). 287Wong Sun v. United States, 371 U.S. 471 (1963). 288Fahy v. Connecticut, 375 U.S. 85 (1963). 289 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).

ligence of suspects have been repeatedly cited by the Court in appropriate cases as demonstrating the particular susceptibility of

the suspects to even mild coercion. 283 But a suspect’s mental state

alone—even insanity—is insufficient to establish involuntariness

absent some coercive police activity. 284

Where, however, interrogation was not so prolonged that the

Court would deem it ‘‘inherently coercive,’’ the ‘‘totality of the circumstances’’ was looked to in determining admissibility. Although

in some of the cases a single factor may well be thought to stand

out as indicating the involuntariness of the confession, 285 generally

the recitation of factors, including not only the age and intelligence

of the suspect but also such things as the illegality of the arrest,

the incommunicado detention, the denial of requested counsel, the

denial of access to friends, the employment of trickery, and other

things, seemed not to rank any factor above the others. 286 Of

course, confessions may be induced through the exploitation of

some illegal action, such as an illegal arrest 287 or an unlawful

search and seizure, 288 and when that occurs the confession is inadmissible. Where police obtain a subsequent confession after obtaining one that is inadmissible as involuntary, the Court will not assume that the subsequent confession was similarly involuntary, but

will independently evaluate whether the coercive actions which

produced the first continued to produce the later confession. 289

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. Ar-
1328 AMENDMENT 5—RIGHTS OF PERSONS

290 384 U.S. 436 (1966). 291 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE

§ 882, at 246 (3d ed. 1940). 292 Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S.

227 (1940); White v. Texas, 310 U.S. 530 (1940). 293 Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 162 U.S. 613

(1896). 294 314 U.S. 219, 236 (1941). 295 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 process-fairness standard while four adhered to a trustworthiness rationale. See id. 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. 296 365 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 self-incrimination have become, to some extent, assimilated.’’

izona. 290 The rationale of the confession cases changed over time

to one closely approximating the foundation purposes the Court has

attributed to the self-incrimination clause. Historically, the basis of

the rule excluding coerced and involuntary confessions was their

untrustworthiness, their unreliability. 291 It appears that this basis

informed the Court’s judgment in the early state confession

cases 292 as it had in earlier cases from the lower federal courts. 293

But in Lisenba v. California, 294 Justice Roberts drew a distinction

between the 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 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. 295

Ultimately, however, those Justices who chose to ground the

exclusionary rule on the latter consideration predominated, so that

in Rogers v. Richmond 296 Justice Frankfurter spoke for six other
AMENDMENT 5—RIGHTS OF PERSONS 1329

297 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). 298 378 U.S. 1 (1964). 299 297 U.S. 278 (1936). 300 314 U.S. 219 (1941). 301Malloy 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 self-incrimination basis for the conclusions advanced. Id. at 17–19. Bram v. United States,

168 U.S. 532 (1897), is discussed supra, p. 1321. 302 378 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.

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, the Justice said in another case, ‘‘[n]o

single litmus-paper test for constitutionally impermissible interrogation has been evolved.’’ 297 Three years later, however, in Malloy

v. Hogan, 298 in the process of applying the self-incrimination

clause to the States, Justice Brennan for the Court reinterpreted

the line of cases since Brown v. Mississippi 299 to conclude that the

Court had initially based its rulings on the common-law confession

rationale, but that beginning with Lisenba v. California, 300 a ‘‘federal standard’’ had been developed. The Court had engaged in a

‘‘shift [which] 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. 301

One week after the decision in Malloy v. Hogan, the Court essayed to define the rules of admissibility of confessions in different

terms than its previous case; while it continued to emphasize voluntariness, it did so in self-incrimination terms rather than in due

process terms. In Escobedo v. Illinois, 302 it held inadmissible the

confession obtained from a suspect in custody who had repeatedly

requested and had repeatedly been refused an opportunity to con-
1330 AMENDMENT 5—RIGHTS OF PERSONS

303Previously, 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 under Sixth Amendment, infra. 304 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). 305 384 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).

sult with his retained counsel, who was present at the police station seeking to gain access to Escobedo. 303 While 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. 304

Miranda v. Arizona.—The Sixth Amendment holding of

Escobedo was deemphasized and the Fifth Amendment self-incrimination rule made preeminent in Miranda v. Arizona, 305 in which

the Court summarized its holding 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 an-
AMENDMENT 5—RIGHTS OF PERSONS 1331

306 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. 307 Id. 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). 308 Johnson v. New Jersey, 384 U.S. 719, 731 (1966).

swered some questions or volunteered some statements on his own

does not deprive him of the right of refrain from answering any

further inquiries until he has consulted with an attorney and

thereafter consents to be questioned.’’

The basis for the Court’s conclusions was the determination

that police interrogation as conceived and practiced was inherently

coercive and that this compulsion, though informal and legally

sanctionless, was contrary to the protection assured by the self-incrimination clause, the protection afforded in a system of criminal

justice which convicted a defendant on the basis of evidence independently secured and not out of his own mouth. In the Court’s

view, this had been the law in the federal courts since 1897, and

the application of the clause to the States in 1964 necessitated the

application of the principle in state courts as well. Therefore, the

clause requires that police interrogation practices be so structured

as to secure to suspects that they 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, to this type of system. 306 ‘‘In these cases,’’ said Chief

Justice Warren, ‘‘we might not find the defendants’ statements to

have been involuntary in traditional terms.’’ 307 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. 308 It was thus not the application of the self-incrimination

clause to police interrogation in Miranda that constituted a major

change from precedent but rather the series of warnings and guar-
1332 AMENDMENT 5—RIGHTS OF PERSONS

309See, 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.’’) 310Pub. L. No. 90–351, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501. See S. Rept. No.

1097, 90th Congress, 2d sess. 37–53 (1968). 311 But cf. United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975). 312 A similar limitation applies to search and seizure exclusionary claims under

Stone v. Powell, 428 U.S. 465 (1976). See supra, pp. 1265–66. The issue of Stone’s

application to Miranda was reserved in Wainwright v. Sykes, 433 U.S. 72, 87 n.11

(1977). See Brewer v. Williams, 430 U.S. 387, 413–14 (1977) (Justice Powell concurring), and id. at 426–28 (Chief Justice Burger dissenting). Notice, however, that if

Miranda claims were made subject to Stone, the traditional voluntariness test of admitting confessions and admissions, with its varying emphases on reliability, trustworthiness, and constitutional fairness, might well qualify those claims for exemption from Powell (see Rose v. Mitchell, 443 U.S. 545 (1979)), and could reduce the

value in the Court’s perspective of limiting habeas claims raising Miranda issues. 313 417 U.S. 433 (1974). 314 It is not clear that the witness’ testimony was suppressible in any event. Cf.

United States v. Ceccolini, 435 U.S. 268 (1978) (a Fourth Amendment case). 315See Johnson v. New Jersey, 384 U.S. 719 (1966).

antees which the Court imposed as security for the observance of

the privilege.

While the Court’s decision rapidly became highly controversial

and the source of much political agitation, including a prominent

role in the 1968 presidential election, the Court has continued to

adhere to it, 309 albeit not without considerable qualification. In

1968, Congress enacted a statute designed to set aside Miranda in

the federal courts and to reinstate the traditional voluntariness

test; an effort to enact a companion provision applicable to the

state courts was defeated. 310 The statute, however, appears to lie

unimplemented because of constitutional doubts about it, 311 and

changing membership of the Court has resulted only in some curtailing of the case’s principles.

In one respect, though, it appears that the Court, by suggesting that Miranda claims could be disallowed in most instances in

federal habeas corpus cases, has constructed a rationale that could

lead to a substantial limitation on Miranda’s operation. 312 This potential limitation flows from the analysis in Michigan v. Tucker, 313

in which the Court was confronted with the question whether Miranda required the exclusion of the testimony of a witness who had

been discovered because of the defendant’s statement during interrogation following an inadequate Miranda warning. 314 The interrogation had taken place prior to Miranda, but the trial had followed

the Court’s decision, 315 leading to the exclusion of defendant’s

statement but not of the testimony of the witness. The actual holding of the Court and the concurrence of two Justices turned on the

fact that the interrogation preceded Miranda and that warnings

had been given, although not the full Miranda warnings; thus, in
AMENDMENT 5—RIGHTS OF PERSONS 1333

316Michigan v. Tucker, 417 U.S. 433, 439 (1974). Justices Rehnquist, Stewart,

Blackmun, Powell, and Chief Justice Burger joined the opinion of the Court. Justices Brennan and Marshall concurred on retroactivity grounds, id. at 453, and Justice Stewart noted he could have joined this opinion as well. Id. Justice White, continuing to think Miranda was wrongly decided, concurred because he did not think

the ‘‘fruits’’ of a Miranda violation should be excluded. Id. at 460. 317 Id. at 446–52. The similarity with opinions interpreting the search and seizure exclusionary rule is striking. Supra, pp. 1264–69. 318While the exclusionary rule may not be directly mandated by the constitutional provision in issue, it must be a constitutional standard, because if it were not

the Court could not impose it on the States. See Monaghan, Foreword: Constitutional Common Law, 89 HARV. L. REV. 1 (1975); Schrock, Welsh & Collins,

Interrogational Rights: Reflections on Miranda v. Arizona, 52 SO. CAL. L. REV. 1

(1978). 319Miranda v. Arizona, 384 U.S. 436, 444 (1966). 320Mathis v. United States, 391 U.S. 1 (1968) (suspect in state jail questioned

by federal officer about a federal crime). But even though a suspect is in jail, hence

in custody ‘‘in a technical sense,’’ a conversation 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. Illinois

v. Perkins, 110 S. Ct. 2394 (1990).

some respects, the decision is in the line of retroactivity cases. But

of great possible significance was the language of the Court in considering ‘‘whether the police conduct complained of directly infringed upon respondent’s rights against compulsory self-incrimination or whether it instead violated only the prophylactic rules developed to protect that right.’’ 316 Finding that the defendant’s

statement had not been coerced or otherwise procured in violation

of his privilege, the Court found that good-faith, inadvertent error

in not fully complying with the ‘‘prophylactic’’ Miranda rules did

not require exclusion of the testimony, because the error preceded

Miranda, because exclusion would not deter wrongful conduct, and

because admission would not implicate the trial court in the use of

possibly untrustworthy evidence. 317 Obviously, dividing the question in this way between a constitutional right and a judicially-created enforcement mechanism permits courts a considerable degree

of flexibility to apply or not apply the exclusionary rule previously

thought to be fairly rigid under Miranda. 318

In any event, the Court has established several lines of decisions interpreting Miranda.

First, persons who are questioned while they are in custody

must be given the Miranda warnings. Miranda applies 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.’’ 319 Clearly, a suspect detained in jail

is in custody, even if the detention is for some offense other than

the one about which he is questioned. 320 If he is placed under ar-
1334 AMENDMENT 5—RIGHTS OF PERSONS

321Orozco v. Texas, 394 U.S. 324 (1969) (four policemen entered suspect’s bedroom at 4 a.m. and questioned him; though not formally arrested, he was in custody).322Oregon 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). See also Minnesota v. Murphy, 465 U.S.

420 (1984) (required reporting to probationary officer is not custodial situation). 323 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). 324 Cf. United States v. Mendenhall, 446 U.S. 544 (1980); Reid v. Georgia, 448

U.S. 438 (1980); Brown v. Texas, 443 U.S. 47 (1979); Berkemer v. McCarty, 468 U.S.

420, 440 (1984) (roadside questioning of motorist stopped for traffic violation is not

custodial interrogation until his ‘‘freedom of action is curtailed to a ‘degree associated with formal arrest’’’). 325 446 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 Innis Court indicated that the definitions are not the same for each

Amendment. 446 U.S. at 300 n.4.

rest, even if he is in his own home, the questioning is custodial. 321

But the fact that a suspect may be present in a police station does

not, in the absence of indicia that he was in custody, mean that the

questioning is custodial, 322 and the fact that he is in his home or

other familiar surroundings will ordinarily lead to a conclusion that

the inquiry was noncustodial. 323 As with investigative stops under

the Fourth Amendment, there is a wide variety of police-citizen

contacts, and the Supreme Court has not explored at any length

the application of Miranda to questioning on the street and elsewhere in situations in which the police have not asserted authority

sufficient to place the citizen in custody. 324

Second, persons who are interrogated while they are in custody

must be given the Miranda warnings. 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. 325

There, police had apprehended the defendant as a murder suspect

but had not found the weapon 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
AMENDMENT 5—RIGHTS OF PERSONS 1335

326 Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980). 327 Id. at 302–04. Justices Marshall, Brennan, and Stevens dissented, Id. at 305,

307. Similarly, the Court found no functional equivalent of interrogation when police

allowed a suspect’s wife to talk to him in the presence of a police officer who openly

tape recorded the conversation. Arizona v. Mauro, 481 U.S. 520 (1987). 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). 328 451 U.S. 454 (1981). 329 Id. at 467.

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.’’ 326 A divided Court then concluded that the officers’ conversation did not amount to a functional equivalent of questioning and that the evidence was admissible. 327

In Estelle v. Smith, 328 the Court held that a court-ordered jailhouse interview with the defendant by a psychiatrist seeking to determine his competency to stand trial, when the defense had raised

no issue of insanity or incompetency, constituted interrogation for

Miranda purposes; 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. 329 Other instances of questioning in

less formal contexts in which the issues of custody and interroga-
1336 AMENDMENT 5—RIGHTS OF PERSONS

330Miranda v. Arizona, 384 U.S. 436, 444 (1966). See id. at 469–73. 331 Id. 332 Id. at 469. 333 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. Egan, 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’’). 334Miranda v. Arizona, 384 U.S. 436, 472, 473–74 (1966). 335 451 U.S. 477 (1981).

tion 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. 330 The Court recognized that ‘‘other fully effective means’’

could be devised to convey the right to remain silent, 331 but it was

firm that the prosecution was not permitted to show that an

unwarned suspect knew of his rights in some manner. 332 But 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. 333

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 before interrogation, the questioning must cease

until he has counsel. 334 At least with respect to counsel, the Court

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. Thus, in Edwards v. Arizona, 335

the Court ruled that Miranda had been violated when police

reinitiated questioning after the suspect had requested counsel.

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
AMENDMENT 5—RIGHTS OF PERSONS 1337

336 Id. 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). 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). 337 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). 338Fare v. Michael C., 442 U.S. 707 (1979) (juvenile requested to see his parole

officer, rather than counsel). Also, waivers signed by the accused following Miranda

warnings are not vitiated by police having kept from the accused information that

an attorney had been retained for him by a relative. Moran v. Burbine, 475 U.S.

412 (1986). 339Michigan 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).

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.’’ 336 The Edwards rule bars police-initiated questioning stemming from a separate investigation as well as

questioning relating to the crime for which the suspect was arrested. 337

However, the suspect must specifically ask for counsel; if he requests the assistance of someone else he thinks may be helpful to

him, that is not a valid assertion of Miranda rights. 338 Moreover,

the rigid Edwards rule is not applicable to other aspects of the

warnings. That is, if the suspect asserts his right to remain silent,

the questioning must cease, but officers are not precluded from

subsequently initiating a new round of interrogation, provided only

that they again give the Miranda warnings. 339

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 re-
1338 AMENDMENT 5—RIGHTS OF PERSONS

340Miranda v. Arizona, 384 U.S. 436, 475 (1966). 341 North Carolina v. Butler, 441 U.S. 369 (1979). 342 Id. at 373. But silence, ‘‘coupled with an understanding of his rights and a

course of conduct indicating waiver,’’ may support a conclusion of waiver. Id. 343Tague 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). 344 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. And see 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 relative). 345Miranda v. Arizona, 384 U.S. 436, 479 (1966). 346 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. 347 Cf. Harrison v. United States, 392 U.S. 219 (1968) (after confessions obtained in violation of McNabb-Mallory were admitted against him, defendant took

the stand to rebut them and made damaging admissions; after his first conviction

was reversed, he was retried without the confessions, but the prosecutor introduced

his rebuttal testimony from the first trial; Court reversed conviction because testimony was tainted by the admission of the confessions). But see Michigan v. Tucker,

417 U.S. 433 (1974). 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).

spond to questioning, but the Court cautioned that the prosecution

bore a ‘‘heavy burden’’ to establish that a valid waiver had occurred. 340 While the waiver need not be express in order for it to

be valid, 341 neither may a suspect’s silence or similar conduct constitute a waiver. 342 It must be shown that the suspect was competent to understand and appreciate the warning and to be able to

waive his rights. 343 Essentially, 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.’ ’’ 344

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 345 or for determining the

sentence, at least in bifurcated trials in capital cases, 346 and neither may the ‘‘fruits’’ of such a confession or admission be used. 347

The Court, in opinions which bespeak a sense of necessity to narrowly construe Miranda, has broadened the permissible impeachment purposes for which unlawful confessions and admissions may
AMENDMENT 5—RIGHTS OF PERSONS 1339

348 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. 349 401 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). 350 420 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). 351 E.g., Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. Portash, 440

U.S. 450 (1979). 352 467 U.S. 649 (1984). 353The 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.

be used. 348 Thus, in Harris v. New York, 349 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 and denied commission of the offense. Subsequently, in

Oregon v. Hass, 350 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. 351

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, 352 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, 353 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
1340 AMENDMENT 5—RIGHTS OF PERSONS

354 467 U.S. at 658–59. 355 Berkemer v. McCarty, 468 U.S. 420, 432 (1984). 356 468 U.S. at 434. 357 Culombe v. Connecticut, 367 U.S. 568, 603–06 (1961). 358 Id. 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).

questions necessary to secure their own safety or the safety of the

public and questions designed solely to elicit testimonial evidence

from a suspect.’’ 354 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. 355 ‘‘[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.’’ 356

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, 357 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.’’ 358

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—
AMENDMENT 5—RIGHTS OF PERSONS 1341

359 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). 360 ‘‘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 re-examine 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.

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—where this is all that appears in the

record—a State judgment that the confession was voluntary cannot

stand.’’ 359 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. 360

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; oth-
1342 AMENDMENT 5—RIGHTS OF PERSONS

361 Jackson v. Denno, 378 U.S. 368, 410–23 (1964) (appendix to opinion of Justice Black concurring in part and dissenting in part). 362 346 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). 363 378 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). 364 385 U.S. 538 (1967). 365 Jackson v. Denno, 378, 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).

erwise, 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 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. 361

The New York method was upheld against constitutional attack in Stein v. New York, 362 but eleven years later a five-to-four

decision in Jackson v. Denno, 363 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. Since 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, 364 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 utilization of either the orthodox or the Massachusetts

method for determining admissibility. 365 It has held that the prosecution bears the burden of establishing voluntariness by a prepon-
AMENDMENT 5—RIGHTS OF PERSONS 1343

366Lego v. Twomey, 404 U.S. 477 (1972). 367 Colorado v. Connelly, 479 U.S. 157 (1986). 1Solesbee 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). 2 Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).

3Text 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 (Cambridge: 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. 4 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. 5W. MCKECHNIE, MAGNA CARTA—A COMMENTARY ON THE GREAT CHARTER OF

KING JOHN (Glasgow: 2d rev. ed. 1914); J. HOLT, MAGNA CARTA (Cambridge: 1965).

derance of the evidence, rejecting a contention that it should be determined only upon proof beyond a reasonable doubt, 366 or by clear

and convincing evidence. 367

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.’’ 1 The content of due

process is ‘‘a historical product’’ 2 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.’’ 3 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.’’ 4 Though Magna Carta was in essence the result of a struggle over interest between the King and

his barons, 5 this particular clause over time transcended any such

limitation of scope, and throughout the fourteenth century par-
1344 AMENDMENT 5—RIGHTS OF PERSONS

6F. THOMPSON, MAGNA CARTA—ITS ROLE IN THE MAKING OF THE ENGLISH CONSTITUTION, 1300–1629 (Minneapolis: 1948). 7SIR EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND, Part II, 50–51 (London: 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). 8The 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.

liamentary interpretation expanded far beyond the intention of any

of its drafters. 6 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 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.’’ 7 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. 8

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
AMENDMENT 5—RIGHTS OF PERSONS 1345

9Murray’s Lessee v. Hoboken Land and 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.) 518–82 (1819). And see Chief Justice Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857). 10Sinking Fund Cases, 99 U.S. 700, 719 (1879). 11Wong Wing v. United States, 163 U.S. 228, 238 (1896). 12 United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927). 13South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966). 14Wight v. Davidson, 181 U.S. 371, 384 (1901). 15Lovato v. New Mexico, 242 U.S. 199, 201 (1916). 16Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920). 17 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. 18 Compare the remarks of Justices Chase and Iredell in Calder v. Bull, 3 U.S.

(3 Dall.) 386, 388–89, 398–99 (1798). 19The 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).

free to make any process ‘due process of law’ by its mere will.’’ 9 All

persons within the territory of the United States are entitled to its

protection, including corporations, 10 aliens, 11 and presumptively

citizens seeking readmission to the United States, 12 but States as

such are not so entitled. 13 It is effective in the District of Columbia 14 and in territories which are part of the United States, 15 but

it does not apply of its own force to unincorporated territories. 16

Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States. 17

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. 18 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. 19 Thus, Chief Justice Taney was not innovating when in his opinion in the Dred

Scott case he pronounced, without elaboration, that one of the reasons the Missouri Compromise was unconstitutional was that an
1346 AMENDMENT 5—RIGHTS OF PERSONS

20Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857). 21French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).

act of Congress which deprived ‘‘a citizen 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.’’ 20 Following the War, with the ratification

of the 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 which was not to be removed until

the crisis of the 1930’s, and which 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. While 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.’’ 21 The most obvious difference between the two

due process clauses is that the Fifth Amendment clause as it binds

the Federal Government coexists with a number of 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 do impose such implicit requirements of

fair trials, fair hearings, and the like, which exist separately from,

though they are informed with, 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, discussion of the meaning of due process is largely reserved for the

section on the Fourteenth Amendment. Finally, it should be noted

that some Fourteenth Amendment interpretations have been carried back to broaden interpretations of the Fifth Amendment’s due
AMENDMENT 5—RIGHTS OF PERSONS 1347

22Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.)

272, 276–77, 280 (1856). A similar approach was followed 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).

process clause, such as, e.g., 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 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 for recovering debts owned the

Crown not unlike the law in question. Thus, ‘‘tested 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. . . .’’ 22

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 meaning

of the Court in Murray’s Lessee was ‘‘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
1348 AMENDMENT 5—RIGHTS OF PERSONS

23 Hurtado v. California, 110 U.S. 516, 528–29 (1884). 24 Id. at 531–32, 535, 537. This flexible approach has been the one 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). 25Davidson v. City of New Orleans, 96 U.S. 97, 102 (1878); Public Clearing

House v. Coyne, 194 U.S. 497, 508 (1904). 26 Ex parte Wall, 107 U.S. 265, 289 (1883). 27 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). 28 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 163 (1951) (Justice Frankfurter concurring). 29Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941). 30 321 U.S. 503, 521 (1944).

of progress or improvement.’’ 23 Therefore, in observing the due

process guarantee, it was concluded, the Court must look ‘‘not [to]

particular forms of procedures, but [to] 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, 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.’’ 24

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. 25 ‘‘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.’’ 26

What is unfair in one situation may be fair in another. 27 ‘‘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.’’ 28

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. 29

In Bowles v. Willingham, 30 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
AMENDMENT 5—RIGHTS OF PERSONS 1349

31 Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938). 32 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907); Lipke v. Lederer, 259

U.S. 557 (1922). 33Phillips 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). 34Wong 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). 35Margan 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 which

culminated in Justice Department’s 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-tofour 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).

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. 31 Although a taxpayer must be afforded a fair opportunity for hearing in connection with the collection of taxes, 32 collection by distraint of personal property is lawful if the taxpayer

is allowed a hearing thereafter. 33

When the Constitution requires a hearing it requires a fair

one, held before a tribunal which meets currently prevailing standards of impartiality. 34 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. 35 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
1350 AMENDMENT 5—RIGHTS OF PERSONS

36 NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 349–50 (1938). 37Western Chem. Co. v. United States, 271 U.S. 268 (1926). See also United

States v. Abilene & So. Ry., 265 U.S. 274, 288 (1924). 38 Richardson v. Perales, 402 U.S. 389 (1971). 39Londoner v. Denver, 210 U.S. 373 (1908). 40FCC 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), wherein 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 pretrial conference, amounted to a taking of property without due process of law. 41 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 900–01

(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 reamisunderstanding as to the basis of the complaint. 36 The mere admission of evidence which would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency. 37

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 rational 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. 38 While the Court has recognized that in some circumstances a ‘‘fair hearing’’ implies a right to oral argument, 39 it

has refused to lay down a general rule that would cover all cases. 40

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 which 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 trial-type hearing in every conceivable case of governmental impairment of private interest. 41 Since the Civil Rights
AMENDMENT 5—RIGHTS OF PERSONS 1351

sonable 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.

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). 42 363 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. No. 91–521, § 4, 84 Stat. 1357 (1970), 42 U.S.C.

§ 1975a(e). Cf. Jenkins v. McKeithen, 395 U.S. 411 (1969).

Commission acts solely as an investigative and fact-finding agency

and makes no adjudications, the Court, in Hannah v. Larche, 42

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
1352 AMENDMENT 5—RIGHTS OF PERSONS

43 United States v. Ju Toy, 198 U.S. 253, 263 (1905). See also The Japanese Immigrant Case, 189 U.S. 86, 100 (1903). Cf. United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537 (1950). 44Shaughnessy v. United States ex rel. Mezel, 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), wherein 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. The Knauff case was distinguished on the ground that the seaman’s status was not that of an entrant, but

rather that of a resident alien. And see Leng May Ma v. Barber, 357 U.S. 185

(1958). 45Oceanic Navig. Co. v. Stranahan, 214 U.S. 320 (1909). 46Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v. United States, 208 U.S. 8 (1908).

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.

Aliens: Entry and Deportation.—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. 43 Since 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. 44 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. 45 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. 46 Where the statute made

the decision of an immigration inspector final unless an appeal was
AMENDMENT 5—RIGHTS OF PERSONS 1353

47 United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy v.

Johnson, 273 U.S. 352, 358 (1927). 48 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). 49Zakonaite v. Wolf, 226 U.S. 272 (1912). See Jay v. Boyd, 351 U.S. 345 (1956),

wherein 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 which contemplates full disclosure of the considerations, specifically, information of a confidential nature pertaining to national security, which 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 which may amount to no more

than uncorroborated hearsay. 50 339 U.S. 33 (1950). See also Kimm v. Rosenberg, 363 U.S. 405, 408, 410, 415

(1960), wherein 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 inasmuch 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 utilized as evidence of

dubious character. Justice Brennan also thought the Government was requiring the

alien to prove non-membership when no one had intimated that he was a Communist. 51 5 U.S.C. §§ 551 et seq.

taken to the Secretary of the Treasury, a person who failed to take

such an appeal did not, by an allegation of citizenship, acquire a

right to a judicial hearing on habeas corpus. 47

Deportation proceedings are not criminal prosecutions within

the meaning of the Bill of Rights. 48 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. 49 In Wong Yang Sung v. McGrath, 50 however,

the Court intimated that a hearing before a tribunal which did not

meet the standards of impartiality embodied in the Administrative

Procedure Act 51 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 de-
1354 AMENDMENT 5—RIGHTS OF PERSONS

52 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. Mendoza-Lopez, 481 U.S. 828

(1987). 53 198 U.S. 253 (1905). 54 Ng Fung Ho v. White, 259 U.S. 276, 281 (1922). 55Ludecke 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. 56 298 U.S. 38 (1936). 57 Id. at 51–54. Justices Brandeis, Stone, and Cardozo, while concurring in the

result, took exception to this proposition. 58FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); FPC v. Hope Gas

Co., 320 U.S. 591 (1944). 59FPC v. Hope Gas Co., 320 U.S. 591, 602 (1944).

nial of due process which may be corrected on habeas corpus. 52 In

contrast with the decision in United States v. Ju Toy 53 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 a day in court if he denies that

he is an alien. 54 A closely divided Court has ruled that in time of

war the deportation of an enemy alien may be ordered summarily

by executive action; due process of law does not require the courts

to determine the sufficiency of any hearing which is gratuitously

afforded to the alien. 55

Judicial Review of Administrative 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, 56

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. 57 Subsequent cases sustaining rate orders

of the Federal Power Commission have not dealt explicitly with

this point. 58 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.’’ 59
AMENDMENT 5—RIGHTS OF PERSONS 1355

60 327 U.S. 1 (1946). 61 339 U.S. 763 (1950). Justices Douglas, Black, and Burton dissented. 62 339 U.S. 103 (1950). 63 Id. at 111. 64 346 U.S. 137, 140–41, 146, 147, 148, 150, 153 (1953).

There has been a division of opinion in the Supreme 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, 60 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 since the military commission, in admitting evidence to which objection was 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. Again, in Johnson

v. Eisentrager, 61 the Court overruled a lower court decision, which

in reliance upon the dissenting opinion in the Yamashita case, 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.

Without dissent, the Court, in Hiatt v. Brown, 62 reversed the

judgment of a lower court which had discharged a prisoner serving

a sentence imposed by a court-martial because of errors whereby

the prisoner had been deprived 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 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.’’ 63 Similarly, in Burns v. Wilson, 64 the Court denied

a petition for the writ to review a conviction by a military tribunal

on the Island of Guam wherein the petitioners asserted that their

imprisonment resulted from proceedings violative of their basic

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
1356 AMENDMENT 5—RIGHTS OF PERSONS

65 367 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 noted,

supra, pp. 1343–47 and is treated infra, under the Fourteenth Amendment. 66Detroit Bank v. United States, 317 U.S. 329, 337 (1943); Helvering v. Lerner

Stores Corp., 314 U.S. 463, 468 (1941). 67Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937). See also Currin v.

Wallace, 306 U.S. 1, 13–14 (1939). 68Truax v. Corrigan, 257 U.S. 312, 331 (1921). See also Hirabayashi v. United

States, 320 U.S. 81, 100 (1943). 69 347 U.S. 497, 499–500 (1954).

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, 65 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.—‘‘Unlike the Fourteenth Amendment, the

Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.’’ 66 At other

times, however, the Court assumed that ‘‘discrimination, if gross

enough, is equivalent to confiscation and subject under the Fifth

Amendment to challenge and annulment.’’ 67 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.’’ 68 Thus, in Bolling v. Sharpe, 69 a companion case to Brown
AMENDMENT 5—RIGHTS OF PERSONS 1357

70 347 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). 71 Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S.

636, 638 n.2 (1975). 72Frontiero 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). 73 Compare Jiminez v. Weinberger, 417 U.S. 628 (1974) with Mathews v. Lucas,

427 U.S. 495 (1976).

v. Board of Education, 70 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 Columbia 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.’’

‘‘Equal protection analysis in the Fifth Amendment area,’’ the

Court has said, ‘‘is the same as that under the Fourteenth Amendment.’’ 71 So saying, the court has applied much of its Fourteenth

Amendment jurisprudence to strike down sex classifications in federal legislation, 72 reached classifications with an adverse impact

upon illegitimates, 73 and invalidated some welfare assistance pro-
1358 AMENDMENT 5—RIGHTS OF PERSONS

74Department of Agriculture v. Murry, 413 U.S. 508 (1973). See also Department of Agriculture v. Moreno, 413 U.S. 528 (1973). 75 Richardson v. Belcher, 404 U.S. 78, 81 (1971); 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). 76 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). 77 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 register for the draft does not deny equal protection, there being no showing that

these men were selected for prosecution because of their protest activities). 78 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

Cases, 130 U.S. 581 (1889), and the power continues today, e.g., Dunn v. INS, 499

F.2d 856, 858 (9th Cir.), 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.

visions with some interesting exceptions. 74 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. 75 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. 76 A veterans’

law which 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, it 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. 77

‘‘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.’’ 78 The paramount federal power over

immigration and naturalization is the principal example, although
AMENDMENT 5—RIGHTS OF PERSONS 1359

79 United States v. New York S.S. Co., 269 U.S. 304 (1925). 80 United States v. Carolene Products Co., 304 U.S. 144 (1938); Carolene Products Co. v. United States, 323 U.S. 18 (1944). 81Kentucky Whip & Collar Co. v. Illinois Cent. R.R., 299 U.S. 334 (1937). 82 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 Employees’ 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). 83 Ex parte Jackson, 96 U.S. 727 (1878); Rowan v. Post Office Dep’t, 397 U.S.

728 (1970). 84St. 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). 85 320 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

there are undoubtedly others, of the national government 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. 79 It may prohibit the transportation in interstate

commerce of filled milk 80 or the importation of convict-made goods

into any State where their receipt, possession, or sale is a violation

of local law. 81 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. 82 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. 83

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. 84 A few years

later, in FPC v. Hope Gas Co., 85 the Court adopted an entirely dif-
1360 AMENDMENT 5—RIGHTS OF PERSONS

(1942), to the effect that the Commission was not bound to the use of any single

formula or combination of formulas in determining rates. 86 A. T. & T. Co. v. United States, 299 U.S. 232 (1936); United States v. New

York Tel. Co., 326 U.S. 638 (1946); Northwestern Co. v. FPC, 321 U.S. 119 (1944). 87 Valvoline Oil Co. v. United States, 308 U.S. 141 (1939); Champlin Rfg. Co.

v. United States, 329 U.S. 29 (1946). 88 Isbrandtsen-Moller Co. v. United States, 300 U.S. 146 (1937). 89St. Louis S.W. Ry. v. United States, 245 U.S. 136, 143 (1917). 90 New England Divisions Case, 261 U.S. 184 (1923). 91Dayton-Goose Creek Ry. v. United States, 263 U.S. 456, 481, 483 (1924). 92 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).

ferent approach. It took the position 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 which 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, 86 and statutes requiring a private carrier

to furnish the Interstate Commerce Commission with information

for valuing its property 87 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. 88

Congressional Regulation of Railroads.—Legislation or 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, 89 as has its division of

joint rates to give a weaker group of carriers a greater share of

such rates where the proportion allotted to the stronger group was

adequate to avoid confiscation. 90 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. 91 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. 92 Similarly, the fact that a rule concerning the allot-
AMENDMENT 5—RIGHTS OF PERSONS 1361

93 Assigned Car Cases, 274 U.S. 564, 575 (1927). 94 United States v. Delaware & Hudson Co., 213 U.S. 366, 405, 411, 415 (1909). 95 United States v. Lowden, 308 U.S. 225 (1939). 96Louisville & Nashville R.R. v. Mottley, 219 U.S. 467 (1911). 97 B. & O. R.R. v. United States, 345 U.S. 146 (1953). 98 Chicago, R.I. & P. Ry. v. United States, 284 U.S. 80 (1931). 99 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). 100 United States v. Bennett, 232 U.S. 299, 307 (1914). 101 Cook v. Tait, 265 U.S. 47 (1924).

ment of coal cars operated to restrict the use of private cars did not

amount to a taking of property. 93 Railroad companies were not denied due process of law by a statute forbidding them to transport

in interstate commerce commodities which have been manufactured, mined or produced by them. 94 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 95 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 whereby the carrier bound itself to issue such passes annually for life, in settlement of a claim for personal injuries. 96 A nonarbitrary 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 the

public interest thereby is served and the rates as a whole yield just

compensation. 97

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. 98 A retirement act which 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 without any contribution therefor, and treated all carriers as a single

employer and pooled their assets, without regard to their individual obligations, was held unconstitutional. 99

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, 100 and it may tax the income

of a citizen resident abroad, which is derived from property located

at his residence. 101 The difference is explained by the fact that pro-
1362 AMENDMENT 5—RIGHTS OF PERSONS

102 Helvering v. Lerner Stores Co., 314 U.S. 463, 468 (1941). But see supra,

pp. 1356–59.

103 Brushaber v. Union Pac. R.R., 240 U.S. 1, 24 (1916). 104McCray v. United States, 195 U.S. 27, 61 (1904). 105Treat v. White, 181 U.S. 264 (1901). 106Flint v. Stone Tracy Co., 220 U.S. 107 (1911). 107 National Paper Co. v. Bowers, 266 U.S. 373 (1924). 108 Billings v. United States, 232 U.S. 261, 282 (1914). 109Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301

U.S. 619 (1937). 110 Bromley v. McCaughn, 280 U.S. 124 (1929). 111 Haavik v. Alaska Packers’ Ass’n, 263 U.S. 510 (1924). 112 Alaska Fish Co. v. Smith, 255 U.S. 44 (1921). 113LaBelle Iron Works v. United States, 256 U.S. 377 (1921). 114 Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940). 115Fernandez v. Wiener, 326 U.S. 340 (1945); cf. Coolidge v. Long, 282 U.S. 582

(1931).

tection 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.

. . .’’ 102 It has sustained, over charges of unfair differentiation between persons, a graduated income tax, 103 a higher tax on oleomargarine than on butter, 104 an excise tax on ‘‘puts’’ but not on

‘‘call,’’ 105 a tax on the income of business operated by corporations

but not on similar enterprises carried on by individuals, 106 an income tax on foreign corporations, based on their income from

sources within the United States, while domestic corporations are

taxed on income from all sources, 107 a tax on foreign-built but not

upon domestic yachts, 108 a tax on employers of eight or more persons, with exemptions for agricultural labor and domestic service, 109 a gift tax law embodying a plan of graduations and exemptions under which donors of the same amount might be liable for

different sums, 110 an Alaska statute imposing license taxes only on

nonresident fisherman, 111 an act which taxed the manufacture of

oil and fertilizer from herring at a higher rate than similar processing of other fish or fish offal, 112 an excess profits tax which defined

‘‘invested capital’’ with reference to the original cost of the property

rather than to its present value, 113 an undistributed profits tax in

the computation of which special credits were allowed to certain

taxpayers, 114 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, 115 and a tax on nonprofit mutual insurers although

such insurers organized before a certain date were exempt inas-
AMENDMENT 5—RIGHTS OF PERSONS 1363

116 United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4 (1970). 117 United States v. Darusmont, 449 U.S. 292, 296–97 (1981). 118Stockdale 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). 119Welch v. Henry, 305 U.S. 134, 146–47 (1938). 120 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). 121 Cooper v. United States, 280 U.S. 409 (1930); see also Reinecke v. Smith, 289

U.S. 172 (1933). 122 Helvering v. Mitchell, 303 U.S. 391 (1938). 123 Helvering v. National Grocery Co., 304 U.S. 282 (1938). 124Patton v. Brady, 184 U.S. 608 (1902).

much as a continuing exemption for all insurers would have led to

their multiplication to the detriment of other federal programs. 116

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. 117

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. 118 ‘‘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.’’ 119 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. 120 An income tax law, made retroactive to the beginning of the calendar year in which it was adopted, was found constitutional as applied to the gain from the sale,

shortly before its enactment, of property received as a gift during

the year. 121 Retroactive assessment of penalties for fraud or negligence, 122 or of an additional tax on the income of a corporation

used to avoid a surtax on its shareholder, 123 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. 124 Similarly upheld were a

transfer tax measured in part by the value of property held jointly
1364 AMENDMENT 5—RIGHTS OF PERSONS

125Tyler v. United States, 281 U.S. 497 (1930); United States v. Jacobs, 306

U.S. 363 (1939). 126 Reinecke v. Smith, 289 U.S. 172 (1933). 127 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).

Untermyer was distinguished in United States v. Hemme, 476 U.S. 558 (1986), upholding retroactive application of unified estate and gift taxation to a taxpayer as

to whom the overall impact was minimal and not oppressive. 128 Heiner v. Donnan, 285 U.S. 312 (1932). 129 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 cost-spreading).

by a husband and wife, including that which comes to the joint tenancy as a gift from the decedent spouse 125 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. 126

However, the Court has treated differently gift taxes imposed

retroactively upon gifts that were made and completely vested before the enactment of the taxing statute, 127 at least in part on the

basis that such imposition unfairly treats a taxpayer who could

have altered his behavior to avoid the tax if it could have been anticipated by him at the time the transaction was effected. Also, a

conclusive presumption that gifts made within two years of death

were made in contemplation of death was condemned as arbitrary

and capricious, even with respect to subsequent transfers. 128

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. 129 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 applica-
AMENDMENT 5—RIGHTS OF PERSONS 1365

130Pension 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). 131Fleming v. Rhodes, 331 U.S. 100, 107 (1947). 132FHA 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. 133Woods v. Stone, 333 U.S. 472 (1948). 134Mulford 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 (1942). 135Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 551 (1871). 136 Norman v. Baltimore & Ohio R.R., 294 U.S. 240 (1935).

tion 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.’’ 130

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. 131 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 which expressly excluded such use. 132

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. 133 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 since it operated, not upon production, but upon the marketing of the product after the act was

passed. 134

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 135 and may invalidate provisions in private contracts calling for payment in gold

coin, 136 but rights against the United States arising out of contract
1366 AMENDMENT 5—RIGHTS OF PERSONS

137Perry v. United States, 294 U.S. 330 (1935). 138Lynch 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). 139 Noble v. Union River Logging R.R., 147 U.S. 165 (1893). 140Danzer Co. v. Gulf R.R., 268 U.S. 633 (1925). 141 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). 142 Holt v. Henley, 232 U.S. 637, 639–40 (1914). See also Auffm’ordt v. Rasin,

102 U.S. 620, 622 (1881).

are more 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, 137 and a statute abrogating contracts of war risk insurance was held unconstitutional as applied

to outstanding policies. 138

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. 139 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. 140

Bankruptcy Legislation.—In acting pursuant to its power to

enact uniform bankruptcy legislation, Congress has regularly authorized retrospective impairment of contractual obligations, 141 but

the due process clause (by itself or infused with takings principles)

constitutes a limitation upon Congress’ 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, 142 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 authorized a court to stay proceedings for the foreclosure of
AMENDMENT 5—RIGHTS OF PERSONS 1367

143Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). 144Wright 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 Mutual 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). 145 Continental Illinois Nat’l Bank & Trust Co. v. Chicago, R.I. & P. Ry., 294

U.S. 648 (1935). 146Kuchner v. Irving Trust Co., 299 U.S. 445 (1937). 147 In re 620 Church Street Corp., 299 U.S. 24 (1936). In the context of Congress’ plan to save major railroad systems, see Regional Rail Reorganization Act

Cases, 419 U.S. 102 (1974). 148Lynch v. United States, 292 U.S. 571, 581 (1934). 149Dodge v. Osborn, 240 U.S. 118 (1916).

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. 143 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. 144

Without violation of the due process clause, the sale of collateral under the terms of a contract may be enjoined, 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. 145 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. 146 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. 147

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. 148 The right to sue for recovery of taxes paid may

be conditioned upon an appeal to the Commissioner and his refusal

to refund. 149 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
1368 AMENDMENT 5—RIGHTS OF PERSONS

150Graham & Foster v. Goodcell, 282 U.S. 409 (1931). 151 Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937). 152 United States v. Heinszen & Co., 206 U.S. 370, 386 (1907). 153Second Employers’ Liability Cases, 223 U.S. 1, 50 (1912). See also Silver v.

Silver, 280 U.S. 117, 122 (1929) (a state case). 154The intimation stems from New York Central 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. 155 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). 156Paramino Co. v. Marshall, 309 U.S. 370 (1940).

mistake of administrative officials in allowing the statute of limitations to run before collecting a tax. 150 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. 151 Congress may cut off the right to recover taxes illegally collected by ratifying the imposition and collection thereof, where it could lawfully have authorized such exactions

prior to their collection. 152

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.’’ 153 It

follows, therefore, that Congress in its discretion may abolish common law 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. 154 Such a holding seems only remotely likely, 155 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 risen in state contexts. In one interesting decision, the Court did sustain 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. 156

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 invoca-
AMENDMENT 5—RIGHTS OF PERSONS 1369

157See ‘‘liberty of contract’’ heading under Fourteenth Amendment, infra. 158 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). 159 E.g., United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1981);

Schweiker v. Wilson, 450 U.S. 221 (1981). 160 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’

THE LAW OF EMINENT DOMAIN (J. Sackman, 3d rev. ed. 1973); and R. Meltz, When

the United States Takes Property: Legal Principles, CONGRESSIONAL RESEARCH SERVICE REPORT 91–339 A (1991) (revised periodically). 161 Boom Co. v. Patterson, 98 U.S. 403, 406 (1879). 162Prior 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 first general

statutory authority for proceedings in federal courts was not enacted until 1888. Act

of Aug. 1, 1888, ch. 728, 25 Stat. 357. See 1 NICHOLS’ THE LAW OF EMINENT DOMAIN

§ 1.24 (J. Sackman, 3d rev. ed. 1973). 163 91 U.S. 367 (1876). 164 United States v. Gettysburg Electric Ry., 160 U.S. 668, 679 (1896).

tion against legislation deemed to abridge liberty of contract. 157

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. 158 The Court’s ‘‘handsoff’’ policy with regard to reviewing economic legislation is quite

pronounced. 159

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.’’ 160 Eminent domain ‘‘appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.’’ 161 In the early years of the nation the federal power of

eminent domain lay dormant, 162 and it was not until 1876 that its

existence was recognized by the Supreme Court. In Kohl v. United

States 163 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, 164 but once this is conceded the ambit

of national powers is so wide-ranging that vast numbers of objects
1370 AMENDMENT 5—RIGHTS OF PERSONS

165 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

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). 166Kohl v. United States, 91 U.S. 367 374 (1876). 167 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. Guy F. 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). 168Green v. Frazier, 253 U.S. 233, 238 (1920). 169 Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). 170Davidson 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. 171 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).

may be effected. 165 This prerogative of the National Government

can neither be enlarged nor diminished by a State. 166 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. 167

‘‘Prior to the adoption of the Fourteenth Amendment,’’ the

power of eminent domain of state governments ‘‘was unrestrained

by any federal authority.’’ 168 The just compensation provision of

the Fifth Amendment did not apply to the States, 169 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. 170 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.’’ 171 While the guarantees of just compensation flow from two
AMENDMENT 5—RIGHTS OF PERSONS 1371

172 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 is Curtiss v. Georgetown &

Alexandria Turnpike Co., 10 U.S. (6 Cr.) 233 (1810). 173Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–59 (1896); Cole v.

La Grange, 113 U.S. 1, 6 (1885). 174 ‘‘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). 175 Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in

District of Columbia). 176Green v. Frazier, 253 U.S. 283, 240 (1920); City of Cincinnati v. Vester, 281

U.S. 439, 446 (1930). And see Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984)

(appeals court erred in applying more stringent standard to action of state legislature).177 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 Pacific 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.

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.

It should be borne in mind that while the power of eminent domain, though it is inherent in organized governments, may only be

exercised through legislation or through legislative delegation, usually to another governmental body, the power may be delegated as

well to private corporations, such as public utilities, railroad and

bridge companies, when they are promoting a valid public purpose.

Such delegation has long been approved. 172

Public Use

Explicit in the just compensation clause is the requirement

that the taking of private property be for a public use; the Court

has long accepted the principle that one is deprived of his property

in violation of this guarantee if a State takes the property for any

reason other than a public use. 173 The question whether a particular intended use is a public use is clearly a judicial one, 174 but the

Court has always insisted on a high degree of judicial deference to

the legislative determination. ‘‘The role of the judiciary in determining whether that power is being exercised for a public purpose

is an extremely narrow one.’’ 175 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. 176 As early as 1908, the Court

was obligated to admit that notwithstanding its retention of the

power of judicial review, ‘‘no 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. . . .’’ 177 How-
1372 AMENDMENT 5—RIGHTS OF PERSONS

178 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). 179 Id. at 552. 180 Id. So it seems to have been considered in Berman v. Parker, 348 U.S. 26,

32 (1954). 181 Rindge Co. v. Los Angeles County, 262 U.S. 700, 709 (1923); Bragg v. Weaver, 251 U.S. 57, 58 (1919); Berman v. Parker, 358 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). 182 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).

ever, 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

agency authorized to do the taking may do so to the full extent of

its statutory authority.’’ 178 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, 179 but it may well be that the case simply stands for the

necessity for great judicial restraint. 180 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. 181

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. 182 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
AMENDMENT 5—RIGHTS OF PERSONS 1373

183 Berman v. Parker, 348 U.S. 26, 32, 33 (1954). 184 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. 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. 185 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. No. 90–545, § 3, 82

Stat. 931 (1968), 16 U.S.C. § 79(c) (taking land for creation of Redwood National

Park); Pub. L. No. 93–444, 88 Stat. 1304 (1974) (taking lands for addition to

Piscataway Park, Maryland); Pub. L. No. 100–647, § 10002 (1988) (taking lands for

addition to Mannassas National Battlefield Park). 186 348 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

eminent domain is merely the means to the end.’’ 183 Traditionally,

eminent domain has been utilized to facilitate transportation, the

supplying of water, and the like, 184 but the use of the power to establish public parks, to preserve places of historic interest, and to

promote beautification has substantial precedent. 185

The Supreme Court has 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, 186 a unanimous Court ob-
1374 AMENDMENT 5—RIGHTS OF PERSONS

through an agency of private enterprise than through a department of government—or so the Congress might conclude.’’ Id. at 33–34 (citations omitted). 187 467 U.S. 229, 243 (1984). 188 467 U.S. at 243. 189 467 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’’). 190 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 573, 575 (1898). 191 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 (1926) and Stoehr v. Wallace, 255 U.S. 239 (1921), with Silesian-American

Corp. v. Clark, 332 U.S. 469 (1947), Russian Fleet v. United States, 282 U.S. 481

(1931), and Guessefeldt v. McGrath, 342 U.S. 308 (1952). 192Monongahela 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. United

States ex rel. TVA v. Powelson, 319 U.S. 266, 281 (1943); United States v. Miller,

served: ‘‘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. Berman was applied

in Hawaii Housing Auth. v. Midkiff, 187 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.’’ 188

‘‘The ‘public use’ requirement is . . . coterminous with the scope of

a sovereign’s police powers,’’ the Court concluded. 189

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.’’ 190 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.’’ 191

The just compensation required by the Constitution is that

which constitutes ‘‘a full and perfect equivalent for the property

taken.’’ 192 Originally the Court required that the equivalent be in
AMENDMENT 5—RIGHTS OF PERSONS 1375

317 U.S. 369, 375 1943); Roberts v. New York City, 295 U.S. 264 (1935). 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).

193 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).

194 Regional Rail Reorganization Act Cases, 419 U.S. 102, 150–51 (1974). 195 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). 196 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). 197 United States v. Miller, 317 U.S. 369, 374 (1943). 198 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. 199 United States v. Felin & Co., 334 U.S. 624 (1948); United States v. Commodities Trading Corp., 339 U.S. 121 (1950). And see Vogelstein & Co. v. United States,

262 U.S. 337 (1923).

money, not in kind, 193 but more recently has cast some doubt on

this assertion. 194 Just compensation is measured ‘‘by reference to

the uses for which the property is suitable, having regard to the

existing business 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.’ ’’ 195 The general standard thus is the market

value of the property, i.e., what a willing buyer would pay a willing

seller. 196 If fair market value does not exist or cannot be calculated, resort must be had to other data which will yield a fair

compensation. 197 However, the Court is resistent to alternative

standards, having repudiated reliance on the cost of substitute facilities. 198 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. 199 By a five-to-four decision, the Court ruled that the Government was not obliged to pay
1376 AMENDMENT 5—RIGHTS OF PERSONS

200 United States v. Cors, 337 U.S. 325 (1949). And see United States v. Toronto

Navigation Co., 338 U.S. 396 (1949). 201 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. 202 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. 203Danforth 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). 204 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).

the present market value of a tug when the value had been greatly

enhanced as a consequence of the Government’s wartime needs. 200

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 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. 201 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. 202

Interest.—Ordinarily, property is taken under a condemnation

suit upon the payment of the money award by the condemner, and

no interest accrues. 203 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.’’ 204 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 5—RIGHTS OF PERSONS 1377

205 Albrecht v. United States, 329 U.S. 599 (1947). 206 Henkels v. Sutherland, 271 U.S. 298 (1926); see also Phelps v. United States,

274 U.S. 341 (1927). 207 United States v. Welch, 217 U.S. 333 (1910). 208 United States v. General Motors, 323 U.S. 373 (1945). 209 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). 210 Bauman v. Ross, 167 U.S. 548 (1897). 211Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893). 212 Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932). 213Lynch v. United States, 292 U.S. 571, 579 (1934); Omnia Commercial Corp.

v. United States, 261 U.S. 502, 508 (1923). 214 James v. Campbell, 104 U.S. 356, 358 (1882). See also Hollister v. Benedict

Mfg. Co., 113 U.S. 59, 67 (1885). 215 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).

Amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed. 205

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. 206

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 of property which cause problems in computing just compensation. It is not only the full fee simple interest in land that is compensable ‘‘property,’’ but also such lesser interests as easements 207

and leaseholds. 208 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. 209 On the other hand, if

the taking has in fact benefited the owner, the benefit may be set

off against the value of the land condemned, 210 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. 211 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. 212

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, 213 patent rights, 214 and

trade secrets. 215 So too, the franchise of a private corporation is

property which 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 fran-
1378 AMENDMENT 5—RIGHTS OF PERSONS

216Monongahela Navigation Co. v. United States, 148 U.S. 312, 345 (1983). 217Omnia Commercial Co. v. United States, 261 U.S. 502 (1923). 218 International Paper Co. v. United States, 282 U.S. 399 (1931). 219 Armstrong v. United States, 364 U.S. 40, 50 (1960). 220Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 88 n.32 (1978). 221 Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S.

41 (1986). 222 ‘‘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). 223Mitchell 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).

chise to take tolls as well as for the tangible property. 216 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, 217 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. 218 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. 219 As a general matter, there is no property interest in the

continuation of a rule of law. 220 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. 221 Similarly, there is no right

to the continuation of governmental welfare benefits. 222

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. 223 ‘‘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’
AMENDMENT 5—RIGHTS OF PERSONS 1379

224 United States v. General Motors Corp., 323 U.S. 373, 382 (1945). 225 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). 226 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. 227 United States v. Jones, 109 U.S. 513 (1883); Bragg v. Weaver, 251 U.S. 57

(1919). 228 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 Presault v. ICC, 494 U.S. 1 (1990). 229 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 deteras that conception has been defined in such cases. Even so the consequences often are harsh. For these whatever remedy may exist

lies with Congress.’’ 224 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 long-term 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. 225 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. 226

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. 227 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. 228 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 commission or other body. 229 Federal courts may ap-
1380 AMENDMENT 5—RIGHTS OF PERSONS

mination 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). 230 Rule 71A(h), Fed. R. Civ. P. These commissions have the same powers as a

court-appointed master. 231Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893). 232Long 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). 233 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569, (1898). 234McGovern v. City of New York, 229 U.S. 363, 370–71 (1913). 235 Id. at 371. And see Provo Bench Canal Co. v. Tanner, 239 U.S. 323 (1915);

Appleby v. City of Buffalo, 221 U.S. 524 (1911).

point a commission in condemnation actions to resolve the compensation issue. 230 If a body other than a court is designated to determine just compensation, its decision must be subject to judicial

review, 231 although the scope of review may be limited by the legislature. 232 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.’’ 233 ‘‘[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.’’ 234 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. 235

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, whether there has been

a taking in the Fifth Amendment sense becomes critical.

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
AMENDMENT 5—RIGHTS OF PERSONS 1381

236Legal 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. 237Meyer v. City of Richmond, 172 U.S. 82 (1898). 238Sauer 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). 239 Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897). 240Manigault v. Springs, 199 U.S. 473 (1905). 241Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177–78 (1872). 242 United States v. Dickinson, 331 U.S. 745, 748 (1947). 243Portsmouth 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). 244 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

the exercise of lawful power.’’ 236 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; 237 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. 238 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, 239 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. 240

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 government floods land. 241 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.’’ 242 It was thus held that

the government had imposed a servitude 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. 243 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. 244 Eventually, the term ‘‘inverse condemnation’’ came to
1382 AMENDMENT 5—RIGHTS OF PERSONS

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). 245 ‘‘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). 246Gibson 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). 247 United States v. Virginia Elec. & Power Co., 365 U.S. 624, 628 (1961). 248 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). 249Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn v. Vermillion

Corp., 444 U.S. 206 (1979).

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. 245

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. 246

This exception does not apply to lands above the ordinary highwater mark of a stream, 247 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 improvements. 248 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. 249

Regulatory Takings.—While 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 due to a police

regulation designed to secure the common welfare, especially in the
AMENDMENT 5—RIGHTS OF PERSONS 1383

250Mugler 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). 251 1 NICHOLS’ THE LAW OF EMINENT DOMAIN § 1.42 (J. Sackman, 3d rev. ed.

1973). 252 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). 253Mugler 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). 254Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). See also Lucas

v. South Carolina Coastal Council, 112 S. Ct. 2886, 2895 (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). 255 260 U.S. at 414–15.

area of health and safety regulations. 250 ‘‘The distinguishing characteristic between eminent domain and 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.’’ 251 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. 252 The older

cases flatly denied the possibility of compensation for this diminution of property values, 253 but the Court in 1922 established as a

general principle that ‘‘if regulation goes too far it will be recognized as a taking.’’ 254

In the Mahon case, Justice Holmes for the Court, over Justice

Brandeis’ vigorous dissent, held unconstitutional a state statute

prohibiting subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased

by deeds which reserved to the coal companies ownership of subsurface mining rights and which 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.’’ 255 The regulation, therefore, in precluding the companies from
1384 AMENDMENT 5—RIGHTS OF PERSONS

256 Id. 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. 257 480 U.S. 470 (1987). The decision was 5–4. Justice Stevens’ opinion of the

Court was joined by Justices Brennan, White, Marshall, and Blackmun; Chief Justice Rehnquist’s dissent was joined by Justices Powell, O’Connor, and Scalia. 258 480 U.S. at 485. 259 Id. at 495–96. 260 Id. at 498–502. How to define the property interest to be measured for diminution in value or economic impact remains largely unresolved. Recent dictum suggests that the answer to segmentation ‘‘may lie in how the owner’s reasonable expectations have been shaped by the State’s law of property—i.e., whether and to

what degree the State’s law has accorded legal recognition and protection to the particular interest in land. . . .’’ Lucas v. South Carolina Coastal Council, 112 S. Ct.

2886, 2894 n.7 (1992). Application of this test could have led to invalidation in Keystone, inasmuch as Pennsylvania law recognized a support estate allegedly totally

eliminated by the mining restriction. 261 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 Eastern Pipe Line Co. v.

State Comm’n, 294 U.S. 613 (1935); Atchison, T. & S. F. Ry. v. Public Utility

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).

exercising any mining rights whatever, went ‘‘too far.’’ 256 However,

when presented 65 years later with a very similar restriction on

coal mining, the Court upheld it in Keystone Bituminous Coal Ass’n

v. DeBenedictis. 257 Unlike its precursor, the Court explained, the

newer law ‘‘does not merely involve a balancing of the private economic interests of coal companies against the private interests of

the surface owners.’’ 258 Instead, the state had identified ‘‘important

public interests’’ (e.g., conservation, protection of water supplies,

preservation of land values for taxation) and had broadened the

law to apply regardless of whether the surface and mineral estates

were in separate ownership. A second factor distinguishing Keystone from Mahon, the Court explained, was the absence of proof

that the new subsidence law made it ‘‘commercially impracticable’’

for the coal companies to continue mining. 259 The Court rejected

efforts to define separate segments of property for taking purposes—either the coal in place under protected structures, or the

‘‘support estate’’ recognized under Pennsylvania law. 260 Economic

impact is measured by reference to the property as a whole; consideration of the coal placed off limits to mining as merely part of a

larger estate and not as a separate estate undermined the commercial impracticability argument.

The Court had been early concerned with the imposition upon

one or a few individuals of the costs of furthering the public interest. 261 But it was with respect to zoning that the Court first experienced some difficulty in this regard. The Court’s first zoning case
AMENDMENT 5—RIGHTS OF PERSONS 1385

262 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 263 Id. at 395. See also Zahn v. Board of Public Works, 274 U.S. 325 (1927). 264 Nectow v. City of Cambridge, 277 U.S. 183 (1928). 265 But see Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (considering and

sustaining single-family zoning as applied to group of college students sharing a

house), and Moore v. City of East Cleveland, 431 U.S. 494 (1977) (considering and

voiding single-family zoning so strictly construed as to bar a grandmother from living with two grandchildren of different children). Some due process cases were also

considered. Eubank v. City of Richmond, 226 U.S. 137 (1912); Washington ex rel.

Seattle Trust Co. v. Roberge, 278 U.S. 116 (1928); City of Eastlake v. Forest City

Enterprises, 426 U.S. 668 (1976). 266Penn 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). 267Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme

Court Expropriation Law, 1962 SUP. CT. REV. 63. For an effort to ground taking 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). A comprehensive analysis of the law in context is Developments

in the Law-Zoning, 91 HARV. L. REV. 1427 (1978).

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. 262 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 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.’’ 263 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. 264 But then the Court withdrew from the landuse scene for about 50 years, leaving the States and their municipalities mostly free to develop increasingly more comprehensive

zoning techniques. 265

As governmental regulation of property has expanded over the

years—in terms of zoning and 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.’’ 266 Rather, as one commentator remarked, its decisions

constitute a ‘‘crazy quilt pattern’’ of judgments. 267 Nonetheless, the
1386 AMENDMENT 5—RIGHTS OF PERSONS

268 438 U.S. 104 (1978). Justices Rehnquist and Stevens and Chief Justice Burger dissented. Id. at 138. 269 Id. at 124 (citations omitted). 270 Id. at 124–28, 135–38. 271 260 U.S. at 413. 272 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,

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, 268 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 reasonable 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 interference arises from some public program adjusting

the benefits and burdens of economic life to promote the common

good.’’ 269

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 which 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 which served the public interest. 270

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,’’ 271 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, 272 nor does a simple rec-
AMENDMENT 5—RIGHTS OF PERSONS 1387

although permit denial resulting in prevention of economically viable use of land

may be). 273Texaco 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 (1984) (reasonable regulation of recordation of

mining claim is not a taking). 274 467 U.S. 986 (1984). 275 467 U.S. at 1011. 276 467 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. 277 475 U.S. 211 (1986). 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’’). 278 Andrus v. Allard, 444 U.S. 51 (1979).

ordation requirement. 273 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 ‘‘reasonable’’) investment-backed expectations’’ first introduced

in Penn Central. In Ruckelshaus v. Monsanto Co., 274 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 period when the statute

guaranteed confidentiality and thus ‘‘formed the basis of a reasonable investment-backed expectation,’’ would have destroyed the

property value of the trade secret and constituted a taking. 275 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. 276 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. 277 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. 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. 278 The

Court merely noted that the ban served a substantial public purpose in protecting the eagle from extinction, that the owner still
1388 AMENDMENT 5—RIGHTS OF PERSONS

279Similarly, 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). And

see the suggestion in Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886,

2899–900 (1992), that Allard may rest on a distinction between permissible regulation of personal property, on the one hand, and real property, on the other. 280The dissent was based upon this test. 438 U.S. at 144–46. 281 369 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. 282 Id. 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. Id. 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). 283 438 U.S. at 133–34 n.30.

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. 279

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. 280 The principle, it

had been contended, followed from several earlier cases, including

Goldblatt v. Town of Hempstead. 281 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 any one, for certain forbidden purposes,

is prejudicial to the public interests.’’ 282 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—expected to produce a widespread public benefit and applicable to all similarly situated property.’’ 283 More recently, in Lucas
AMENDMENT 5—RIGHTS OF PERSONS 1389

284 112 S. Ct. 2886 (1992). 285 Id. at 2899. 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. 286 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). 287The 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 Telegraph Co., 148 U.S. 92 (1893); Western

Union Telegraph Co. v. Pennsylvania R.R., 195 U.S. 540 (1904). 288Loretto 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, 112 S. Ct. 1522 (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).

v. South Carolina Coastal Council, 284 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.’’ 285

Penn Central is not the only guide to when a regulatory taking

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 physical invasions: when government permanently 286 occupies or authorizes someone else to occupy property,

the action constitutes a taking and compensation must be paid regardless of the public interests served by the occupation or the extent of damage to the parcel as a whole. 287 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 1 1/2 cubic feet of space on the exterior of each building and had only de minimis economic impact, a

divided Court held that the regulation authorized a permanent

physical occupation of the property and thus constituted a taking. 288

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 govern-
1390 AMENDMENT 5—RIGHTS OF PERSONS

289This test was derived from Nectow v. City of Cambridge, 277 U.S. 183

(1928), a due process case. 290 447 U.S. 255, 260 (1980). 291Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2895 (1992). The

Agins/Lucas total deprivation rule does not create an all-or-nothing 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 2895 n.8 (1992). 292 Id. at 2900. The emphasis on title suggests that the timing of governmental

regulation in relation to title transfer may be important. But there are apparently

limits to how far this principle may be carried. In Nollan v. California Coastal

Comm’n, 483 U.S. 825 (1987), in which Justice Scalia also authored the Court’s

opinion, the Court rejected the suggestion that title was encumbered by an easement imposed by a regulation that antedated property transfer. ‘‘So long as the

Commission could not have deprived the prior owners of the [beach access] easement without compensating them, the prior owners must be understood to have

transferred their full property rights in conveying the lot.’’ Id. at 834 n.2. 293 112 S. Ct. at 2900 n.16. 294 344 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 convenmental interests,’’ 289 or if they deny a property owner ‘‘economically viable use of his land.’’ 290 This second Agins criterion creates

a categorical rule: ‘‘when the owner of real property 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.’’ 291 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.’’ 292 Thus, while

there is no broad ‘‘noxious use’’ exception separating police power

regulations from takings, there is a much narrower exception based

on the law of nuisance and related principles.

The ‘‘or otherwise’’ reference, the Court explained in Lucas, 293

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, 294 the owners of property de-
AMENDMENT 5—RIGHTS OF PERSONS 1391

ience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured.’’ 295 357 U.S. 155 (1958). In dissent, Justice Harlan argued for the test stated

above. Id. at 179. See supra, n.6. 296 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

Fifth Amendment to every landowner which it fails to or cannot protect.’’ United

States v. Sponenbarger, 308 U.S. 256, 265 (1939). 297 Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). 298 483 U.S. 825 (1987). 299 Id. at 837. 300Dissenting Justice Brennan argued that the Court was requiring ‘‘a degree

of exactitude that is inconsistent with our standard for reviewing the rationality of

a state’s exercise of its police power for the welfare of its citizens.’’ 483 U.S. at 842–

stroyed 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., 295 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. 296

The first prong of the Agins test, 297 focusing on whether land

use controls ‘‘substantially advance legitimate governmental interests,’’ was applied in Nollan v. California Coastal Commission. 298

There the Court held that extraction of a public access easement

across a strip of beach as a condition for a permit to enlarge a

beachfront home did not ‘‘substantially advance’’ the state’s legitimate interest in preserving public view of the beach from the street

in front of the lot. The easement instead was designed to allow the

public to walk back and forth along the beach between two public

beaches. ‘‘[U]nless the permit condition serves the same governmental purpose as the development ban,’’ the Court concluded, ‘‘the

building restriction is not a valid regulation of land use but ‘an outand-out plan of extortion.’ ’’ 299 The future importance of Nollan will

depend in large measure on how broadly its principles are applied.

Unlimited application of a substantial advancement test could herald decreased deference to legislative judgments as to appropriate

regulation of property, and a resurrection of substantive due process analysis. 300 Confined to its holding, however, Nollan may be
1392 AMENDMENT 5—RIGHTS OF PERSONS

43. Justice Scalia’s opinion for the Court denied that the standards ‘‘are the same

as those applied to due process or equal protection claims,’’ indicating further that

‘‘a broad range of governmental purposes and regulations satisfies these requirements.’’ Id. at 834 n.3, 834–35. For analysis, see N. Lawrence, Means, Motives, and

Takings: The Nexus Test of Nollan v. California Coastal Commission, 12 HARV.

ENVTL. L. REV. 231 (1988). Note as well that Lucas also manifests decreased deference to legislative judgments; destruction of all beneficial use of property cannot

be justified through legislative findings of necessity, but only by reference to background principles of property law. 301 Id. at 834. 302 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. 303 Compare Pioneer Trust and Savings Bank v. Village of Mount Prospect, 22

Ill.2d 375, 176 N.E.2d 799 (1961) (required dedication of land for school and playground is invalid as resulting from the total development of the community, rather

than being specifically and uniquely attributable to the developer’s activity) with Associated Home Builders v. City of Walnut Creek, 94 Cal. Rptr. 630, 484 P.2d 606,

610 (1971) (exaction can be justified on the basis of ‘‘general public need for recreational facilities caused by present and future subdivisions’’). The Nollan Court

cited the Mount Prospect case approvingly, while contrasting the California rule. 483

U.S. at 839. 304See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) (issue not reached

because property owners challenging development density restrictions had not subrelatively unexceptional. The Court’s frame of reference was that

requiring a property owner to convey outright a public easement

across his property would ordinarily and undeniably constitute a

taking; the question posed was ‘‘whether requiring [the easement]

to be conveyed as a condition for issuing a land use permit alters

the outcome.’’ 301 However, for many conditions attached to permits

(e.g., building code requirements relating to safety, quality of materials, or soundness of construction) the starting point is different:

these conditions do not stand alone. And, even where Nollan issues

apparently could be raised (as, e.g., with respect to requirements

that subdivision developers dedicate land for recreation needs generated by their developments), it may often be possible to establish

that the condition ‘‘substantially advances’’ the same legitimate

governmental purpose served by the permit requirement. 302 Important to Nollan’s application will be how narrowly or how broadly

a reviewing court is willing to construe the public interests underlying the regulation of property. 303

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. 304 The remedy question arises
AMENDMENT 5—RIGHTS OF PERSONS 1393

mitted a development plan); Hodel v. Virginia Surface Mining & Reclamation 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). 305 482 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). 306 482 U.S. at 321. 307 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 Andrus v. Allard, 444 U.S. 51, 65 (1979). 308Webb’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).

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. 305 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.’’ 306

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 Fifth Amendment’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.’’ 307 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 promotion of the public good. 308 Similarly, the Court looks
1394 AMENDMENT 5—RIGHTS OF PERSONS

309Penn 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). 310 Andrus v. Allard, 444 U.S. 51, 65–66 (1979) (denial of most profitable use

of artifacts—the right to sell them—does not constitute a taking, since rights to possession, transportation, display, donation, and devise were retained). 311 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). 312 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). 313See n.260, supra.

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.’’ 309

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. The Court emphasizes that the taking

of one ‘‘strand’’ or ‘‘stick’’ in the ‘‘bundle’’ of property rights does not

necessarily constitute a taking as long as the property as a whole

retains economic viability, 310 but 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. 311 Similarly valued is the right to pass on property to one’s heirs. 312

Even though takings were found or assumed in the recent decisions in First English, Nollan, and Lucas, considerable obstacles remain for future litigants challenging regulatory restrictions on land

use. As suggested above, regulatory takings will most likely remain

difficult to establish in spite of Nollan. The Lucas fact situation, in

which governmental regulation rendered property ‘‘valueless,’’ may

prove to be relatively rare (although how the ‘‘segmentation’’

issue 313 is handled may prove pivotal in this regard). And even if

a taking can be established, the Court cautioned in First English

that its holding was limited ‘‘to the facts presented [a taking was

assumed] and [did] not deal with the quite different questions that

would arise in the case of normal delays in obtaining building per-
AMENDMENT 5—RIGHTS OF PERSONS 1395

314 482 U.S. at 321.

315 473 U.S. 172 (1985).

316 477 U.S. 340 (1986).

317 Id. at 348.

318 Id. at 352.

319Pennell v. City of San Jose, 485 U.S. 1 (1988).

320See, e.g., Hodel v. Virginia Surface Mining & Reclamation 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).

mits, changes in zoning ordinances, variances, and the like.’’ 314

Failure to incur such delays can result in dismissal of an as-applied

taking claim on ripeness grounds. In Williamson County Regional

Planning Comm’n v. Hamilton Bank, 315 for example, the landowner had failed to seek a variance following a planning commission’s rejection of a subdivision plat, and had failed to pursue state

inverse condemnation procedures. Similarly, in MacDonald,

Sommer & Frates v. County of Yolo, 316 the landowner had failed

to obtain a ‘‘final and authoritative determination of the type and

intensity of development legally permitted on the . . . property.’’ As

the Court explained, ‘‘[a] court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation

goes.’’ 317 The landowner had been denied approval for one subdivision plan calling for intense development, but that one denial had

not foreclosed ‘‘the possibility that some deveopment [would] be

permitted.’’ 318 So too, a challenge to a municipal rent control ordinance was considered ‘‘premature’’ in the absence of evidence that

a tenant hardship provision had in fact ever been applied to reduce

what would otherwise be considered to be a reasonable rent increase. 319 Facial challenges present the same difficulties—without

pursuing administrative remedies, a claimant often lacks evidence

that a statute’s effect is to deny all economically viable uses of

property. 320