1359

FIFTH AMENDMENT 

RIGHTS OF PERSONS 

CONTENTS

Page

Indictment by Grand Jury ........................................................................................................ 1361 

Double Jeopardy ........................................................................................................................ 1367 

Development and Scope ..................................................................................................... 1367

Reprosecution Following Mistrial ...................................................................................... 1373 

Reprosecution Following Acquittal .................................................................................... 1377 

Acquittal by Jury ......................................................................................................... 1378

Acquittal by the Trial Judge ...................................................................................... 1379 

Trial Court Rulings Terminating Trial Before Verdict ............................................ 1380 

Reprosecution Following Conviction ................................................................................. 1381 

Reprosecution After Reversal on Defendant’s Appeal .............................................. 1381 

Sentence Increases ...................................................................................................... 1384 

‘‘For the Same Offence’’ ...................................................................................................... 1386

Legislative Discretion as to Multiple Sentences ....................................................... 1386 

Successive Prosecutions for ‘‘The Same Offense’’ ..................................................... 1388 

The ‘‘Same Transaction’’ Problem .............................................................................. 1390 

Self-Incrimination ...................................................................................................................... 1392 

Development and Scope ..................................................................................................... 1392

The Power to Compel Testimony and Disclosure ............................................................ 1403 

Immunity ..................................................................................................................... 1403

Required Records Doctrine ......................................................................................... 1406 

Reporting and Disclosure ............................................................................................ 1407 

Confessions: Police Interrogation, Due Process, and Self-Incrimination ....................... 1411 

The Common Law Rule .............................................................................................. 1412 

McNabb-Mallory Doctrine .......................................................................................... 1413 

State Confession Cases ............................................................................................... 1414 

From the Voluntariness Standard to Miranda ......................................................... 1418 

Miranda v. Arizona ..................................................................................................... 1420 

The Operation of the Exclusionary Rule .......................................................................... 1431 

Supreme Court Review ............................................................................................... 1431 

Procedure in the Trial Courts .................................................................................... 1433 

Due Process ................................................................................................................................ 1434 

History and Scope ............................................................................................................... 1434 

Scope of the Guaranty ................................................................................................. 1436 

Procedural Due Process ..................................................................................................... 1438

Generally ...................................................................................................................... 1439 

Administrative Proceedings: A Fair Hearing ............................................................ 1440 

Aliens: Entry and Deportation ................................................................................... 1443 

Judicial Review of Administrative Proceedings ........................................................ 1445 

Substantive Due Process .................................................................................................... 1447

Discrimination ............................................................................................................. 1447

Congressional Police Measures .................................................................................. 1450 

Congressional Regulation of Public Utilities ............................................................ 1451 

Congressional Regulation of Railroads ...................................................................... 1452 

1360 AMENDMENT 5—RIGHTS OF PERSONS 

Due Process—Continued 

Substantive Due Process—Continued 

Taxation ....................................................................................................................... 1453 

Retroactive Taxes ........................................................................................................ 1454 

Deprivation of Property: Retroactive Legislation ..................................................... 1456 

Bankruptcy Legislation ............................................................................................... 1459 

Right to Sue the Government ..................................................................................... 1460 

Congressional Power to Abolish Common Law Judicial Actions ............................. 1460 

Deprivation of Liberty: Economic Legislation ........................................................... 1461 

National Eminent Domain Power ..................................................................................... 1461 

Overview ...................................................................................................................... 1461

Public Use .................................................................................................................... 1463

Just Compensation ...................................................................................................... 1467 

Interest .................................................................................................................. 1469

Rights for Which Compensation Must Be Made ............................................... 1469 

Consequential Damages ...................................................................................... 1471 

Enforcement of Right to Compensation ............................................................. 1472 

When Property Is Taken ............................................................................................. 1473 

Government Activity Not Directed at the Property .......................................... 1473 

Navigable Waters ................................................................................................. 1474 

Regulatory Takings .............................................................................................. 1475 

1361

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 Capital or Criminal 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 

1362 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 1363

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); 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 quesin 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 perVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00003 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1364 AMENDMENT 5—RIGHTS OF PERSONS 

tions 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). 11Dionisio, 410 U.S. at 9. 12 410 U.S. at 9–13. 13 410 U.S. at 13–15. The privacy rationale proceeds from Katz v. United States, 

389 U.S. 347 (1967). 

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 1365

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. See discussion under ‘‘Juries,’’ infra. 16 Ex parte Wilson, 114 U.S. 417 (1885). 17 114 U.S. 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 

1366 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. Ex parte Bain was also overruled to the extent 

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

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

v. Cotton, 122 S. Ct. 1781 (2002). While a defendant’s failure to challenge an error 

of substantive law at trial level may result in waiver of such issue for purpose of 

appeal, challenges to subject-matter jurisdiction may be made at any time. Thus, 

where a defendant failed to assert his right to a non-defective grand jury indictment, appellate review of the matter would limited to a ‘‘plain error’’ analysis. 122 

S. Ct. at 1784-85. 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). 

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 

AMENDMENT 5—RIGHTS OF PERSONS 1367

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 ‘‘Trial and Punishment of Offenses: Servicemen, Civilian Employees, and Dependents’’ under Article I. 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. 37 483 U.S. 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. 

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 language’’ 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 

1368 AMENDMENT 5—RIGHTS OF PERSONS 

40M. FRIEDLAND, DOUBLE JEOPARDY part 1 (1969); Crist v. Bretz, 437 U.S. 28, 

32–36 (1978), and id. at 40 (Justice Powell dissenting); United States v. Wilson, 420 

U.S. 332, 340 (1975). 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). 

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 

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 

AMENDMENT 5—RIGHTS OF PERSONS 1369

46 302 U.S. at 325, 326. 47 302 U.S. 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). 

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, 

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 

1370 AMENDMENT 5—RIGHTS OF PERSONS 

53 260 U.S. at 382. See also Hebert v. Louisiana, 272 U.S. 312 (1924); Screws 

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

(1943). 54 Benton v. Maryland, 395 U.S. 784 (1969), extended the clause to the States. 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). 

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 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 

AMENDMENT 5—RIGHTS OF PERSONS 1371

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

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

89 Firearms, 465 U.S. 354 (1984); United States v. Halper, 490 U.S. 435 (1989) (civil 

penalty under the False Claims Act constitutes punishment if it is overwhelmingly 

disproportionate to compensating the government for its loss, and if it can be explained only as serving retributive or deterrent purposes); Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767 (1994) (tax on possession of illegal drugs, ‘‘to 

be collected only after any state or federal fines or forfeitures have been satisfied,’’ 

constitutes punishment for purposes of double jeopardy). But see Seling v. Young, 

531 U.S. 250 (2001) (a statute that has been held to be civil and not criminal in 

nature cannot be deemed punitive ‘‘as applied’’ to a single individual). The issue of 

whether a law is civil or punitive in nature is essentially the same for ex post 

facto and for double jeopardy analysis. 531 U.S. at 263. 

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

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

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

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

(forfeiture of distillery used in defrauding government of tax on spirits), and United 

States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant 

to 18 U.S.C. § 924(d), of firearms ‘‘used or intended to be used in’’ firearms offenses). 

A two-part inquiry is followed. First, the Court inquires whether Congress intended 

the forfeiture proceeding to be civil or criminal. Then, if Congress intended that the 

proceeding be civil, the court determines whether there is nonetheless the ‘‘clearest 

proof’’ that the sanction is ‘‘so punitive’’ as to transform it into a criminal penalty. 

89 Firearms, 465 U.S. at 366. 62Kansas v. Hendricks, 521 U.S. 346, 369–70 (1997) (commitment under State’s 

Sexually Violent Predator Act). 63 Abney v. United States, 431 U.S. 651 (1977). 64See United States v. DiFrancesco, 449 U.S. 117, 126–27 (1980) (citing cases). 

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 

are civil in form if they clearly are applied in a manner that constitutes ‘‘punishment.’’ 60 Ordinarily, however, civil in rem forfeiture

proceedings may not be considered punitive for purposes of double 

jeopardy analysis. 61 and the same is true of civil commitment following expiration of a prison term. 62

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. 63

During the 1970s especially, the Court decided an uncommonly 

large number of cases raising double jeopardy claims. 64 Instead of 

the clarity that often emerges from intense consideration of a particular issue, however, double jeopardy doctrine has descended into 

1372 AMENDMENT 5—RIGHTS OF PERSONS 

65 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). 66See Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting opinion). Justice Powell, 

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

jeopardy clause so interpreted the due process clause could be relied on to prevent 

prosecutorial abuse during the trial designed to abort the trial and obtain a second 

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

prosecutorial abuse. E.g., United States v. Scott, 437 U.S. 82, 92–94 (1978); Oregon 

v. Kennedy, 456 U.S. 667 (1982) (but narrowing scope of concept). 67 United States v. Scott, 437 U.S. 82, 101 (1978) (dissenting opinion) (Justices 

Brennan, White, Marshall, and Stevens). 68Thus, 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). 

a state of ‘‘confusion,’’ with the Court acknowledging that its decisions ‘‘can hardly be characterized as models of consistency and 

clarity.’’ 65 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. 66 Others have expressed the view that the clause not only protects the 

integrity of final judgments but, more important, that it protects 

the accused against the strain and burden of multiple trials, which 

would also enhance the ability of government to convict. 67 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. 68 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. 

AMENDMENT 5—RIGHTS OF PERSONS 1373

69The 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). 70 Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v. United States, 372 

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

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

prolongs the period in which he is stigmatized by an unresolved accusation of 

wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is 

aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.’’ Arizona 

v. Washington, 434 U.S. 497, 503–05 (1978). 71Wade v. Hunter, 336 U.S. 684, 689 (1949). 72 United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion). 73 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. 

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. 69 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. 70 The reasons the Court has given for fixing the attachment of jeopardy at a point prior to judgment and thus making 

some terminations of trials before judgment final insofar as the defendant is concerned is that a defendant has a ‘‘valued right to 

have his trial completed by a particular tribunal.’’ 71 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,’’ 72 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. 73 These reasons both 

1374 AMENDMENT 5—RIGHTS OF PERSONS 

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

75 Id.; Logan v. United States, 144 U.S. 263 (1892). 

76Simmons 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). 77 Illinois v. Somerville, 410 U.S. 458, 463 (1973). 

78 410 U.S. at 464. 

79Downum v. United States, 372 U.S. 734 (1963). 

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,’’ 74 such as 

where, for example, the jury cannot reach a verdict 75 or circumstances plainly prevent the continuation of the trial. 76 Answers

become more difficult, 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. 77 Thus, when, after jeopardy attached, a mistrial was granted because of a defective indictment, 

the Court held that retrial was not barred; a trial judge ‘‘properly 

exercises his discretion’’ in cases in which an impartial verdict cannot be reached or in which a verdict on conviction would have to 

be reversed on appeal because of an obvious error. ‘‘If an error 

could make reversal on appeal a certainty, it would not serve ‘the 

ends of public justice’ to require that the Government proceed with 

its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.’’ 78 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. 79 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 

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80 Illinois v. Somerville, 410 U.S. 458, 464–65, 468–69 (1973). 81 434 U.S. 497 (1978). 82 ‘‘Manifest necessity’’ characterizes the burden the prosecutor must shoulder in 

justifying retrial. 434 U.S. at 505–06. But ‘‘necessity’’ cannot be interpreted literally; 

it means rather a ‘‘high degree’’ of necessity, and some instances, such as hung juries, easily meet that standard. Id. at 506–07. In a situation like that presented in 

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

in the best position to determine the extent of the possible bias, having observed 

the jury’s response, and to respond by the course he deems best suited to deal with 

it. Id. at 510–14. Here, ‘‘the trial judge acted responsibly and deliberately, and accorded careful consideration to respondent’s interest in having the trial concluded 

in a single proceeding. [H]e exercised ‘sound discretion’. . . .’’ Id. at 516. 83 367 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). 

ceeding successfully and to obtain a new trial in which his advantage would be increased. 80

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

v. Washington, 81 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. 82

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

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

mistrial or granting the prosecutor’s motion. The cases are in doctrinal disarray. Thus, in Gori v. United States, 83 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 

1376 AMENDMENT 5—RIGHTS OF PERSONS 

84 United States v. Jorn, 400 U.S. 470, 483 (1971). 85 400 U.S. at 485. The opinion of the Court was by a plurality of four, but two 

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

Government’s appeal. 86 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.) 87 United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion). 88 United States v. Scott, 437 U.S. 82, 93 (1978). 89 424 U.S. 600 (1976). See also Lee v. United States, 432 U.S. 23 (1977) (defendant’s motion to dismiss because the information was improperly drawn made 

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

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

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

their constitutional rights. 84 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.’’ 85 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. 86

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.’’ 87

‘‘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.’’ 88 In United States 

v. Dinitz, 89 the trial judge had excluded defendant’s principal attorney 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 

AMENDMENT 5—RIGHTS OF PERSONS 1377

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

States v. Tateo, 377 U.S. 463, 468 n.3 (1964). 91 456 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. 92 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). 93 United States v. Scott, 437 U.S. 82, 91 (1978) (quoting Green v. United 

States, 355 U.S. 184, 188 (1957)). For the conceptually related problem of trial for 

a ‘‘separate’’ offense arising out of the same ‘‘transaction,’’ see discussion under ‘‘The 

‘Same Transaction’ Problem,’’ infra. 94 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 

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, 90 but in Oregon v. Kennedy, 91 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.’’ 92 ‘‘[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably 

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

might wear down the defendant so that ‘even though innocent he 

may be found guilty.’’’ 93 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.’’ 94

1378 AMENDMENT 5—RIGHTS OF PERSONS 

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. 95 195 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). 96 In dissent, Justice Holmes, joined by three other Justices, propounded a theory of ‘‘continuing jeopardy,’’ so that until the case was finally concluded one way 

or another, through judgment of conviction or acquittal, and final appeal, there was 

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

134. The Court has numerous times rejected any concept of ‘‘continuing jeopardy.’’ 

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

U.S. 332, 351–53 (1975); Breed v. Jones, 421 U.S. 519, 533–35 (1975). 97Palko v. Connecticut, 302 U.S. 319 (1937). Palko is no longer viable. Cf.

Greene v. Massey, 437 U.S. 19 (1978). 98The 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). 99Title 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). 

The acquittal being final, there is no governmental appeal constitutionally possible from such a judgment. This was firmly established in Kepner v. United States, 95 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. 96 Previously, under the 

due process clause, there was no barrier to state provision for prosecutorial appeals from acquittals. 97 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, 98 but in that year Congress enacted a new statute permitting appeals in all criminal cases in which indictments are dismissed, except in those cases in which the double jeopardy clause 

prohibits further prosecution. 99 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 prosecuVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00018 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
AMENDMENT 5—RIGHTS OF PERSONS 1379

100What constitutes a jury acquittal may occasionally be uncertain. In Schiro 

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

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

counts, and that consequently conviction on the remaining count, alleged to be duplicative of one of the blank counts, could not constitute double jeopardy. In any 

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

result from an initial sentencing proceeding in the course of an initial prosecution. 101 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 discussion infra under ‘‘Reprosecution After Reversal on 

Defendant’s Appeal.’’ 102 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). 103 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. 104 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). 105 430 U.S. at 570–76. See also United States v. Scott, 437 U.S. 82, 87–92 

(1978); Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer sustained on basis 

of insufficiency of evidence is acquittal). 106 437 U.S. 54 (1978). 

tion, place the defendant on trial again. 100 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. 101

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

acquits a defendant, that action concludes the matter. 102 There is 

no possibility of retrial for the same offense. 103 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.’’ 104 Thus, an appeal by the Government was held 

barred in a case in which the deadlocked jury had been discharged, 

and the trial judge had granted the defendant’s motion for a judgment of acquittal under the appropriate federal rule, explicitly 

based on the judgment that the Government had not proved facts 

constituting the offense. 105 Even if, as happened in Sanabria v. 

United States, 106 the trial judge erroneously excludes evidence and 

1380 AMENDMENT 5—RIGHTS OF PERSONS 

107 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. 

108Serfass 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). 

109See ‘‘Reprosecution After Reversal on Defendant’s Appeal,’’ supra. 

110See ‘‘Acquittal by the Trial Judge,’’ supra. 

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. 107 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. 108

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; 109 if, after jeopardy attaches, but before a jury conviction occurs, the trial judge 

acquits, perhaps on the basis that the prosecution has presented 

insufficient evidence or that the defendant has proved a requisite 

defense such as insanity or entrapment, the defendant is not subject to retrial. 110 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 

AMENDMENT 5—RIGHTS OF PERSONS 1381

111 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). 112See United States v. Scott, 437 U.S. 82, 84–86 (1978); United States v. 

Sisson, 399 U.S. 267, 291–96 (1970). 113 Cf. Lee v. United States, 432 U.S. 23 (1977). 114 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). 115 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). 116 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 

prejudicial preindictment delay. 111 The prosecution may not simply 

begin a new trial but must seek first to appeal and overturn the 

dismissal, a course that was not open to federal prosecutors until 

enactment of the Omnibus Crime Control Act in 1971. 112 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. 113 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; 114 if further proceedings, such as continuation of the trial or some further factfinding, was necessary, 

appeal was not permitted. 115 Now, but by a close division of the 

Court, the determining factor is not whether further proceedings 

must be had but whether the action of the trial judge, whatever its 

label, correct or not, resolved some or all of the factual elements 

of the offense charged in defendant’s favor, whether, that is, the 

court made some determination related to the defendant’s factual 

guilt or innocence. 116 Such dismissals relating to guilt or innocence 

1382 AMENDMENT 5—RIGHTS OF PERSONS 

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. 117 North Carolina v. Pearce, 395 U.S. 711, 717 (1969). 118 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). 119 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). 120 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). 121Green 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). 122 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 discussion, supra. In some cases, a 

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.’’ 117 It is ‘‘settled’’ that ‘‘no man can be twice lawfully 

punished for the same offense.’’ 118 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. 119 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. 120 Although it has characterized the ‘‘waiver’’ theory as ‘‘totally unsound and indefensible,’’ 121 the Court has been hesitant in formulating a new theory 

in maintaining the practice. 122

AMENDMENT 5—RIGHTS OF PERSONS 1383

concept of ‘‘election’’ by the defendant has been suggested, United States v. Scott, 

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

it is not clear how this formulation might differ from ‘‘waiver.’’ Chief Justice Burger 

has suggested that ‘‘probably a more satisfactory explanation’’ for permissibility of 

retrial in this situation ‘‘lies in analysis of the respective interests involved,’’ Breed 

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

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

(1982). 123 355 U.S. 184 (1957). 124The 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). 125See 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. 126 437 U.S. 1 (1978). 

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, 123 the defendant had been placed on trial 

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

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

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

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

was an implicit acquittal of the first degree murder charge. 124

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. 125

Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States, 126

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 

1384 AMENDMENT 5—RIGHTS OF PERSONS 

127 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. 128Tibbs 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). 129Lockhart 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). 130 Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874); North Carolina v. Pearce, 

395 U.S. 711, 717 (1969). 131 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874). 

the evidence to be insufficient.’’ 127 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. 128 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. 129

Sentence Increases.—The double jeopardy clause protects 

against imposition of multiple punishment for the same offense. 130

The application of the principle leads, however, to a number of 

complexities. In a simple case, it was held that where a court inadvertently imposed both a fine and imprisonment for a crime for 

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

not, after the fine had been paid and the defendant had entered his 

short term of confinement, recall the defendant and change its 

judgment by sentencing him to imprisonment only. 131 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 

AMENDMENT 5—RIGHTS OF PERSONS 1385

132 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. 133 North Carolina v. Pearce, 395 U.S. 711, 719–21 (1969). See also Chaffin v. 

Stynchcombe, 412 U.S. 17, 23–24 (1973). The principle of implicit acquittal of an offense drawn from Green v. United States, 355 U.S. 184 (1957), does not similarly 

apply to create an implicit acquittal of a higher sentence. Pearce does hold that a 

defendant must be credited with the time served against his new sentence. 395 U.S. 

at 717–19. 134 Bullington v. Missouri, 451 U.S. 430 (1981). Four Justices dissented. Id. at 

447 (Justices Powell, White, Rehnquist, and Chief Justice Burger). The Court disapproved Stroud v. United States, 251 U.S. 15 (1919), although formally distinguishing it. Bullington was followed in Arizona v. Rumsey, 467 U.S. 203 (1984), also 

involving a separate sentencing proceeding in which a life imprisonment sentence 

amounted to an acquittal on imposition of the death penalty. Rumsey was decided 

by 7–2 vote, with only Justices White and Rehnquist dissenting. In Monge v. California, 524 U.S. 721 (1998), the Court refused to extend the ‘‘narrow’’ Bullington exception outside the area of capital punishment. 135 United States v. DiFrancesco, 449 U.S. 117 (1980). Four Justices dissented. 

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

court may recall him and increase his sentence. 132 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. 133 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. 134

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. 135 The Court held that the 

provision did not offend the double jeopardy clause. Sentences had 

never carried the finality that attached to acquittal, and its precedents indicated to the Court that imposition of a sentence less than 

the maximum was in no sense an ‘‘acquittal’’ of the higher sentence. Appeal resulted in no further trial or other proceedings to 

which a defendant might be subjected, only the imposition of a new 

sentence. An increase in a sentence would not constitute multiple 

punishment, the Court continued, inasmuch as it would be within 

the allowable sentence and the defendant could have no legitimate 

expectation of finality in the sentence as first given because the 

statutory scheme alerted him to the possibility of increase. SimiVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00025 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1386 AMENDMENT 5—RIGHTS OF PERSONS 

136 Jones v. Thomas, 491 U.S. 376, 381–82 (1989). 137 United States v. Watts, 519 U.S. 148, 154 (1997) (relying on Witte v. United 

States, 515 U.S. 389 (1995), and holding that a sentencing court may consider earlier conduct of which the defendant was acquitted, so long as that conduct is proved 

by a preponderance of the evidence). See also Almendarez-Torres v. United States, 

523 U.S. 224 (1998) (Congress’ decision to treat recidivism as a sentencing factor 

does not violate due process); Monge v. California, 524 U.S. 721 (1998) (retrial is 

permissible following appellate holding of failure of proof relating to sentence enhancement). Justice Scalia, whose dissent in Almendarez-Torres argued that there 

was constitutional doubt over whether recidivism factors that increase a maximum 

sentence must be treated as a separate offense for double jeopardy purposes (523 

U.S. at 248), answered that question affirmatively in his dissent in Monge. 524 U.S. 

740-41. 138See discussion supra under ‘‘Development and Scope.’’ 

larly 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. 136

The Court is also quite deferential to legislative classification 

of recidivism sentencing enhancement factors as relating only to 

sentencing and as not constituting elements of an ‘‘offense’’ that 

must be proved beyond a reasonable doubt. Ordinarily, therefore, 

sentence enhancements cannot be construed as additional punishment for the previous offense, and the Double Jeopardy Clause is 

not implicated. ‘‘Sentencing enhancements do not punish a defendant for crimes for which he was not convicted, but rather increase 

his sentence because of the manner in which he committed his 

crime of conviction.’’ 137

‘‘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. 138 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 

AMENDMENT 5—RIGHTS OF PERSONS 1387

139There 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. 140 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). 141Missouri 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. 142 United States v. Universal C.I.T. Corp., 344 U.S. 218, 221–22 (1952). 

one or more laws or that one or more violations may be charged. 139

Although the question is not totally free of doubt, it appears that 

the double jeopardy clause does not limit the legislative power to 

split a single transaction into separate crimes so as to give the 

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

thereby making multiple punishments possible for essentially one 

transaction. 140 ‘‘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.’’ 141

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’’ 142 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, 

1388 AMENDMENT 5—RIGHTS OF PERSONS 

143 284 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). 

144 357 U.S. 386 (1958). 

145See 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). 

146 United States v. Felix, 503 U.S. 378, 391 (1992). But cf. Rutledge v. United 

States, 517 U.S. 292 (1996) (21 U.S.C. § 846, prohibiting conspiracy to commit drug 

offenses, does not require proof of any fact that is not also a part of the continuing 

criminal enterprise offense under 21 U.S.C. § 848, so there are not two separate offenses).

147Garrett 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). 

148 445 U.S. 684 (1980). 

announced in Blockburger v. United States, 143 ‘‘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, 144 the Court held that defendant’s one act of selling narcotics had violated three distinct criminal statutes, each of which 

required proof of a fact not required by the others; prosecuting him 

on all three counts in the same proceeding was therefore permissible. 145 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,’’ 146 or

the related principle that Congress may prescribe that predicate offenses and ‘‘continuing criminal enterprise’’ are separate offenses. 147 On the other hand, in Whalen v. United States, 148 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 

AMENDMENT 5—RIGHTS OF PERSONS 1389

149The 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). 150 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). 151See Grady v. Corbin, 495 U.S. 508, 518–19 (1990). 152 432 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). 153See 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). 154 Illinois v. Vitale, 447 U.S. 410 (1980). 

the separate offenses punished. 149 In this as in other areas, a 

guilty plea ordinarily precludes collateral attack. 150

Successive Prosecutions for ‘‘the Same Offense’’.—Successive prosecutions raise fundamental double jeopardy concerns extending beyond those raised by enhanced and multiple punishments. It is more burdensome for a defendant to face charges in 

separate proceedings, and if those proceedings are strung out over 

a lengthy period the defendant is forced to live in a continuing 

state of uncertainty. At the same time, multiple prosecutions allow 

the state to hone its trial strategies through successive attempts at 

conviction. 151 In Brown v. Ohio, 152 the Court, apparently for the 

first time, applied the same evidence test to bar successive prosecutions in state court for different statutory offenses involving the 

same conduct. The defendant had been convicted of ‘‘joyriding,’’ defined as operating a motor vehicle without the owner’s consent, and 

was then prosecuted and convicted of stealing the same automobile. 

Because the state courts had conceded that joyriding was a lesser 

included offense of auto theft, the Court observed that each offense 

required the same proof and for double jeopardy purposes met the 

Blockburger test. The second conviction was overturned. 153 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. 154

In 1990, the Court modified the Brown approach, stating that the 

1390 AMENDMENT 5—RIGHTS OF PERSONS 

155Grady v. Corbin, 495 U.S. 508 (1990) (holding that the state could not prosecute a traffic offender for negligent homicide because it would attempt to prove 

conduct for which the defendant had already been prosecuted—driving while intoxicated and failure to keep to the right of the median). A subsequent prosecution is 

barred, the Court explained, if the government, to establish an essential element of 

an offense, will prove conduct that constitutes an offense for which the defendant 

has already been prosecuted. Id. at 521. 156 United States v. Dixon, 509 U.S. 688, 709 (1993) (applying Blockburger test

to determine whether prosecution for a crime, following conviction for criminal contempt for violation of a court order prohibiting that crime, constitutes double jeopardy). 157The Court suggested that if the legislature had provided that joyriding is a 

separate offense for each day the vehicle is operated without the owner’s consent, 

so that the two indictments each specifying a different date on which the offense 

occurred would have required different proof, the result might have been different, 

but this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S. 161, 169 

n.8 (1977). The Court also suggested that an exception might be permitted where 

the State is unable to proceed on the more serious charge at the outset because the 

facts necessary to sustain that charge had not occurred or had not been discovered. 

Id. at 169 n.7. See also Jeffers v. United States, 432 U.S. 137, 150–54 (1977) (plurality opinion) (exception where defendant elects separate trials); Ohio v. Johnson, 

467 U.S. 493 (1984) (trial court’s acceptance of guilty plea to lesser included offense 

and dismissal of remaining charges over prosecution’s objections does not bar subsequent prosecution on those ‘‘remaining’’ counts). 158 United States v. Felix, 503 U.S. 378, 389 (1992). The fact that Felix constituted a ‘‘large exception’’ to Grady was one of the reasons the Court cited in overruling Grady. United States v. Dixon, 509 U.S. 688, 709–10 (1993). 159Witte v. United States, 515 U.S. 389 (1995) (consideration of defendant’s alleged cocaine dealings in determining sentence for marijuana offenses does not bar 

subsequent prosecution on cocaine charges). 160Monge v. California, 524 U.S. 721, 728 (1998). 

appropriate focus is on same conduct rather than same evidence. 155

That interpretation held sway only three years, however, before 

being repudiated as ‘‘wrong in principle [and] unstable in application.’’ 156 The Brown Court had noted some limitations applicable to 

its holding, 157 and more have emerged subsequently. Principles appropriate 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.’’ 158 For double jeopardy purposes, a defendant is ‘‘punished . . . only for the offense of which [he] is convicted’’; a later prosecution or later punishment is not barred simply because the underlying criminal activity has been considered at 

sentencing for a different offense. 159 Similarly, recidivism-based 

sentence enhancement does not constitute multiple punishment for 

the ‘‘same’’ prior offense, but instead is a stiffened penalty for the 

later crime. 160

The ‘‘Same Transaction’’ Problem.—The same conduct may 

also give rise to multiple offenses in a way that would satisfy the 

AMENDMENT 5—RIGHTS OF PERSONS 1391

161 356 U.S. 464 (1958). See also Ciucci v. Illinois, 356 U.S. 571 (1958). 162 397 U.S. 436 (1970). 163 ‘‘‘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). 164 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. 165 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). 166Garrett 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) 

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, 161 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, 162 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 163 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. 164 Several Justices would have gone further and 

required a compulsory joinder of all charges against a defendant 

growing out of a single criminal act, occurrence, episode, or transaction, except where a crime is not discovered until prosecution 

arising from the same transaction has begun or where the same jurisdiction does not have cognizance of all the crimes. 165 But the 

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

of the Double Jeopardy Clause.’’ 166

1392 AMENDMENT 5—RIGHTS OF PERSONS 

(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). 167Maguire, 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). 168The 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). 169 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 HampSELF-INCRIMINATION

Development and Scope 

The source of the self-incrimination clause was the maxim 

‘‘nemo tenetur seipsum accusare,’’ that ‘‘no man is bound to accuse 

himself.’’ The maxim is but one aspect of two different systems of 

law enforcement which competed in England for acceptance; the 

accusatorial and the inquisitorial. In the accusatorial system, 

which predated the reign of Henry II but was expanded and extended by him, first the community and then the state by grand 

and petit juries proceeded against alleged wrongdoers through the 

examination of 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. 167

The use of this oath in Star Chamber proceedings, especially 

to root out political heresies, combined with opposition to the ecclesiastical oath ex officio, led over a long period of time to general 

acceptance of the principle that a person could not be required to 

accuse himself under oath in any proceeding before an official tribunal seeking information looking to a criminal prosecution, or before a magistrate investigating an accusation against him with or 

without oath, or under oath in a court of equity or a court of common law. 168 The precedents in the colonies are few in number, but 

following the Revolution six states had embodied the privilege 

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AMENDMENT 5—RIGHTS OF PERSONS 1393

shire); 5 id. at 2787 (North Carolina), 3038 (Pennsylvania); 6 id. at 3741 (Vermont); 

7 id. at 3813 (Virginia). 170 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. 171 Id. at 753 (August 17, 1789). 172 ‘‘It reflects many of our fundamental values and most noble aspirations; our 

unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements 

will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load, . . .’; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ . . . , our distrust of 

self-deprecatory 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). 173 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). 174 ‘‘[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 

lege was one of those recommended by several state ratifying conventions for inclusion in a federal bill of rights. 170 Madison’s

version of the clause read ‘‘nor shall be compelled to be a witness 

against himself,’’ but a House amendment inserted ‘‘in any criminal 

case’’ into the provision. 171

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. 172 Commonly mentioned in numerous cases was the assertion that the 

privilege was designed to protect the innocent and to further the 

search for truth. 173 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. 174 In

1394 AMENDMENT 5—RIGHTS OF PERSONS 

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). 175 Ullmann v. United States, 350 U.S. 422, 438–39 (1956). 176 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). 177 341 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). 

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.’’ 175

‘‘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.’’ 176 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 

answer[s] cannot possibly have such tendency’ to incriminate.’’ 177

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 

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178 Hoffman v. United States, 341 U.S. 479 (1951); Mason v. United States, 244 

U.S. 362 (1917). 179Ohio v. Reiner, 523 U.S. 17 (2001). 180 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. 181 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). 182 United States v. White, 322 U.S. 694, 699–700 (1944); Wilson v. United 

States, 221 U.S. 361, 384–385 (1911). But the government may make no evidentiary 

use of the act of production in proceeding individually against the corporate custodian. Braswell v. United States, 487 U.S. 99 (1988). Cf. George Campbell Painting 

Corp. v. Reid, 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). 

nation 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. 178 The fact that a witness 

has previously asserted her innocence of any wrongdoing does not 

obviate the right, as truthful responses of an innocent witness may 

provide the government with incriminating evidence. 179 The witness must explicitly claim her privilege, however, or she 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. 180

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. 181 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. 182

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 

1396 AMENDMENT 5—RIGHTS OF PERSONS 

183Thus, 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). 184 Estelle v. Smith, 451 U.S. 454, 462–63 (1981) (‘‘We can discern no basis to 

distinguish between the guilt and penalty phases of respondent’s capital murder 

trial so far as the protection of the Fifth Amendment privilege is concerned’’); Mitchell v. United States, 526 U.S. 314 (1999) (non-capital sentencing). 185 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. 186Miranda v. Arizona, 384 U.S. 436 (1966). 187Schmerber 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, 

uncover other evidence against him. 183 Incrimination is not complete once guilt has been adjudicated, and hence the privilege may 

be asserted during the sentencing phase of trial. 184 Conversely,

there is no valid claim on the ground that the information sought 

can be used in proceedings which are not criminal in nature. 185

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. 186

What the privilege protects against is compulsion of ‘‘testimonial’’ disclosures. Thus, the clause is not offended by such 

non-testimonial compulsions as requiring a person in custody to 

stand or walk in a police lineup, to speak prescribed words, to 

model particular clothing, or to give samples of handwriting, fingerprints, or blood. 187 A person may be compelled to produce specific 

AMENDMENT 5—RIGHTS OF PERSONS 1397

preferring not to apply the sometimes difficult distinction between testimonial and 

physical evidence. In another case, involving roadside videotaping of a drunk driving 

suspect, the Court found that the slurred nature of the suspect’s speech, as well as 

his answers to routine booking questions as to name, address, weight, height, eye 

color, date of birth, and current age, were not testimonial in nature. Pennsylvania 

v. Muniz, 496 U.S. 582 (1990). On the other hand, the suspect’s answer to a request 

to identify the date of his sixth birthday was considered testimonial. Id. Two Justices recently challenged the interpretation limiting application to ‘‘testimonial’’ disclosures, claiming that the original understanding of the word ‘‘witness’’ was not 

limited to someone who gives testimony, but included someone who gives any kind 

of evidence. United States v. Hubbell, 530 U.S. 27, 49 (2000) (Justice Thomas, joined 

by Justice Scalia, concurring). 188Fisher v. United States, 425 U.S. 391 (1976). Compelling a taxpayer by subpoena to produce documents produced by his accountants from his own papers does 

not involve testimonial self-incrimination and is not barred by the privilege. ‘‘[T]he 

Fifth Amendment does not independently proscribe the compelled production of 

every sort of incriminating evidence but applies only when the accused is compelled 

to make a testimonial communication that is incriminating.’’ Id. at 408 (emphasis 

by Court). Even further removed from the protection of the privilege is seizure pursuant to a search warrant of business records in the handwriting of the defendant. 

Andresen v. Maryland, 427 U.S. 463 (1976). A court order compelling a target of 

a grand jury investigation to sign a consent directive authorizing foreign banks to 

disclose records of any and all accounts over which he had a right of withdrawal 

is not testimonial in nature, since the factual assertions are required of the banks 

and not of the target. Doe v. United States, 487 U.S. 201 (1988). 189 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). 190 United States v. Hubbell, 530 U.S. 27 (2000). 191 E.g., Marchetti v. United States, 390 U.S. 39 (1968) (criminal penalties attached to failure to register and make incriminating admissions); Malloy v. Hogan, 

378 U.S. 1 (1964) (contempt citation on refusal to testify). See also South Dakota 

v. Neville, 459 U.S. 553 (1983) (no compulsion in introducing evidence of suspect’s 

documents even though they contain incriminating information. 188

If, however, the existence of specific documents is not known to the 

government, and the act of production informs the government 

about the existence, custody, or authenticity of the documents, then 

the privilege is implicated. 189 Application of these principles resulted in a holding that the Independent Counsel could not base a 

prosecution on incriminating evidence identified and produced as 

the result of compliance with a broad subpoena for all information 

relating to the individual’s income, employment, and professional 

relationships. 190

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. 191 The compulsion need not be imprisonment, but can also 

1398 AMENDMENT 5—RIGHTS OF PERSONS 

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). 192Garrity 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). 193Spevack v. Klein, 385 U.S. 511 (1967). 194McKune v. Lile, 122 S. Ct. 2017 (2002). The transfer was mandated for refusal to participate in a sexual abuse treatment program that required revelation 

of sexual history and admission of responsibility. The plurality declared that rehabilitation programs are permissible if the adverse consequences for non-participation 

are ‘‘related to the program objectives and do not constitute atypical and significant 

hardships in relation to the ordinary incidents of prison life.’’ 122 S. Ct. at 2027 

(opinion of Justice Kennedy). Concurring Justice O’Connor stated her belief that the 

‘‘minor’’ change in living conditions seemed ‘‘very unlikely to actually compel [the 

prisoner] to participate.’’ Id. at 2034. 195See, in addition to McKune v. Lile, Baxter v. Palmigiano, 425 U.S. 308 (1976) 

(adverse inference from inmate’s silence at prison disciplinary hearing); and Ohio 

Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (adverse inference from 

inmate’s silence at clemency hearing). 196Minnesota v. Murphy, 465 U.S. 420 (1984) (the possibility of revocation of 

probation was not so coercive as to compel a probationer to provide incriminating 

answers to probation officer’s questions ). 197The Court in McKune v. Lile was split 5–4, with no opinion of the Court. 198 Brown v. Walker, 161 U.S. 591, 597–98 (1896); Fitzpatrick v. United States, 

178 U.S. 304, 314–16 (1900); Brown v. United States, 356 U.S. 148 (1958). See also 

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (testimony at a clemency interview is voluntary, and cannot be compelled). 

be termination of public employment 192 or disbarment of a lawyer 193 as a legal consequence of a refusal to make incriminating 

admissions. The degree of coercion may also prove decisive, the 

Court having ruled that moving a prisoner from a medium security 

unit to a maximum security unit was insufficient to compel him to 

incriminate himself in spite of the attendant loss of privileges and 

the harsher living conditions. 194 However, while it appears that 

prisoners 195 and probationers 196 have less protection than others, 

the Court has not yet developed a clear doctrinal explanation to 

identify the differences between permissible and impermissible coercion. 197

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

in his own behalf does so voluntarily, and cannot then claim the 

privilege to defeat cross-examination on matters reasonably related 

to the subject matter of his direct examination, 198 and that such 

AMENDMENT 5—RIGHTS OF PERSONS 1399

199Spencer v. Texas, 385 U.S. 554, 561 (1967); cf. Michelson v. United States, 

335 U.S. 469 (1948). 200 380 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’’). 201While 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). 202 Chapman v. California, 386 U.S. 18 (1967); United States v. Hasting, 461 

U.S. 499 (1983). 203Doyle v. Ohio, 426 U.S. 610 (1976). Post-arrest silence, the Court stated, is 

inherently ambiguous, and to permit use of the silence would be unfair since the 

Miranda warning told the defendant he could be silent. The same result had earlier 

been achieved under the Court’s supervisory power over federal trials in United 

States v. Hale, 422 U.S. 171 (1975). The same principles apply to bar a prosecutor’s 

use of Miranda silence as evidence of an arrestee’s sanity. Wainwright v. Greenfield, 

474 U.S. 284 (1986). In determining whether a state prisoner is entitled to federal 

habeas corpus relief because the prosecution violated due process by using his postMiranda silence for impeachment purposes at trial, the proper standard for harmless-error review is that announced in Kotteakos v. United States, 328 U.S. 750, 776 

(1946)—whether the due process error had substantial and injurious effect or influence in determining the jury’s verdict—not the stricter ‘‘harmless beyond a reasonable doubt’’ standard of Chapman v. California, 386 U.S. 18, 24 (1967), applicable 

on direct review. Brecht v. Abrahamson, 507 U.S. 619 (1993). 204 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). 

a defendant may be impeached by proof of prior convictions. 199 But

in Griffin v. California, 200 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 on the privilege by making its assertion costly.’’ 201 Prosecutors’ comments violating the Griffin rule can nonetheless constitute harmless error. 202 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. 203 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. 204

1400 AMENDMENT 5—RIGHTS OF PERSONS 

205Simmons 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). 206 Harrison v. United States, 392 U.S. 219 (1968). 207 Jackson v. United States, 390 U.S. 570, 583 (1968). 208Parker 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. 209McGautha 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. 

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. 205

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. 206 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. 207

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

of the choice required to be made by defendants against the 

strength of the governmental interest in the system requiring the 

choice, the Court soon 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. 208 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. 209

AMENDMENT 5—RIGHTS OF PERSONS 1401

Cf. Corbitt v. New Jersey, 439 U.S. 212 (1978); Bordenkircher v. Hayes, 434 U.S. 

357 (1978). 210Williams 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. 211 ‘‘The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation 

were made by the evidence. The necessity of an explanation by the accused would 

be quite as compelling in that case as in this; but the constraint upon him to give 

testimony would arise there, as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.’’ 

Yee Hem v. United States, 268 U.S. 178, 185 (1925), quoted with approval in Turner 

v. United States, 396 U.S. 398, 418 n.35 (1970). Justices Black and Douglas dissented on self-incrimination grounds. Id. at 425. 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, ‘‘Proof, Burden of 

Proof, and Presumptions,’’ infra. 212Prosecution may be precluded by tender of immunity, (see next topic for discussion of immunity) infra, 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). 213 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). 

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. 210 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. 211

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

is precluded, 212 or if the result of the answers is not incrimination, 

but rather harm to reputation or exposure to infamy or disgrace. 213

The clause does not prevent a public employer from discharging an 

employee who, in an investigation specifically and narrowly diVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00041 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1402 AMENDMENT 5—RIGHTS OF PERSONS 

214Gardner 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. 215See 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. 216Malloy 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)). 217Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964), (overruling United States 

v. Murdock, 284 U.S. 141 (1931) (Federal Government could compel a witness to 

give testimony 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, 378 

U.S. at 58–63, 77. 218 United States v. Balsys, 524 U.S. 666 (1998). 

rected 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. 214 But it is unclear under 

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

agency. 215

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, 216 and neither sovereign can compel discriminatory admissions which would incriminate the person in the other jurisdiction. 217 There is no ‘‘cooperative internationalism’’ that parallels the cooperative federalism and 

cooperative prosecution on which application against states is premised, and consequently concern with foreign prosecution is beyond 

the scope of the Self-Incrimination Clause. 218

AMENDMENT 5—RIGHTS OF PERSONS 1403

219Kastigar 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). 220 9 Anne, c. 14, 3–4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 

n.13 (1972). 221 Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed 

while testifying before Congress. 222 Ch. 11, 12 Stat. 333 (1862). 223 142 U.S. 547 (1892). The statute struck down was ch. 13, 15 Stat. 37 (1868). 224 Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). And see id. at 586. 225 142 U.S. at 585–86. 226 ‘‘Transactional’’ immunity means that once a witness has been compelled to 

testify about an offense, he may never be prosecuted for that offense, no matter how 

much independent evidence might come to light; ‘‘use’’ immunity means that no testimony compelled to be given and no evidence derived from or obtained because of 

the compelled testimony may be used if the person is subsequently prosecuted on 

independent evidence for the offense. 

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.’’ 219 Apparently the first immunity statute was 

enacted by Parliament in 1710 220 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. 221

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

witness, 222 the statute was soon rendered unenforceable by the ruling in Counselman v. Hitchcock 223 that an analogous limited immunity statute was unconstitutional because it did not confer an 

immunity coextensive with the privilege it replaced. Counselman

was ambiguous with regard to its grounds because it identified two 

faults in the statute: it did not proscribe ‘‘derivative’’ evidence 224

and it prohibited only future use of the compelled testimony. 225

The latter language accentuated a division between adherents of 

‘‘transactional’’ immunity and of ‘‘use’’ immunity which has continued to the present. 226 In any event, following Counselman, Congress enacted a statute which conferred transactional immunity as 

1404 AMENDMENT 5—RIGHTS OF PERSONS 

227 Ch. 83, 27 Stat. 443 (1893). 228 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. 229 Ullmann v. United States, 350 U.S. 422, 438 (1956), (quoting Shapiro v. 

United States, 335 U.S. 1, 6 (1948)). 230 ‘‘[The] sole concern [of the privilege] is . . . with the danger to a witness 

forced to give testimony leading to the infliction of ‘penalties affixed to the criminal 

acts’. . . . Immunity displaces the danger. Once the reason for the privilege ceases, 

the privilege ceases.’’ 350 U.S. at 438–39. The internal quotation is from Boyd v. 

United States, 116 U.S. 616, 634 (1886). 231Kastigar v. United States, 406 U.S. 441, 457–58 (1972); Piccirillo v. New 

York, 400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an 

immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. § 

25(a)(10), repealed by 84 Stat. 931 (1970). The right of a bankrupt to insist on his 

privilege against self-incrimination as against this statute was recognized in McCarthy v. Arndstein, 266 U.S. 34, 42 (1924), ‘‘because the present statute fails to afford 

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

of derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920). 232 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. 233Malloy 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). 

the price for being able to compel testimony, 227 and the Court sustained this law in a five-to-four decision. 228

‘‘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.’’’ 229 So spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker and upholding the constitutionality of a federal immunity statute. 230 Because all but one of the immunity acts 

passed after Brown v. Walker were transactional immunity statutes, 231 the question of the constitutional sufficiency of use immunity did not arise, although dicta in cases dealing with immunity 

continued to assert the necessity of the former type of grant. 232 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. 233 On the 

AMENDMENT 5—RIGHTS OF PERSONS 1405

234Murphy 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. 235Marchetti v. United States, 390 U.S. 39, 58 (1968). 236Organized 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). 237 406 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). 238Kastigar v. United States, 406 U.S. 441, 459 (1972). See also United States 

v. Hubbell, 530 U.S. 27 (2000) (because the statute protects against derivative use 

of compelled testimony, a prosecution cannot be based on incriminating evidence revealed only as the result of compliance with an extremely broad subpoena). 

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. 234 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. 235

Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only. 236

Soon tested, this statute was sustained in Kastigar v. United 

States. 237 ‘‘[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. . . .’’ 238

‘‘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 

1406 AMENDMENT 5—RIGHTS OF PERSONS 

239 406 U.S. at 453. Joining Justice Powell in the opinion were Justices Stewart, 

White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dissented, contending that a ban on use could not be enforced even if a use ban was 

constitutionally adequate. Id. at 462, 467. Justices Brennan and Rehnquist did not 

participate but Justice Brennan’s views that transactional immunity was required 

had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) (dissenting). See also New Jersey v. Portash, 440 U.S. 451 (1979) (prosecution use of 

defendant’s immunized testimony to impeach him at trial violates 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). 240 Boyd v. United States, 116 U.S. 616 (1886). But see Fisher v. United States, 

425 U.S. 391 (1976). 241See discussion supra under ‘‘Development and Scope.’’ 242Shapiro 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, 335 U.S. at 36, 

56–70 (Justice Frankfurter dissenting). 

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.’’ 239

Required Records Doctrine.—While the privilege is applicable to an individual’s papers and effects, 240 it does not extend to 

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

subject to compelled production. 241 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 enforcement of restrictions validly established.’’’ 242 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 

AMENDMENT 5—RIGHTS OF PERSONS 1407

243 335 U.S. at 51. 244 335 U.S. at 32. 245 335 U.S. at 32 246 274 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. 

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.’’ 243

‘‘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.’’ 244 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.’’ 245 That there are limits established by the selfincrimination 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. 

Reporting and Disclosure.—The line of cases begins with 

United States v. Sullivan 246 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. 

1408 AMENDMENT 5—RIGHTS OF PERSONS 

247The expansion of the commerce power would now obviate reliance on the taxing power. 248 United States v. Kahriger, 345 U.S. 22 (1953); Lewis v. United States, 348 

U.S. 419 (1955). 249 382 U.S. 70 (1965). 250 382 U.S. 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). 251Marchetti 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 preHowever, ‘‘[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, 247 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. 248

Constitutional limitations appeared, however, in Albertson v. 

SACB, 249 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 directed 

at a highly selective group inherently suspect of criminal activities. 

Petitioners’ claims are not asserted in an essentially noncriminal 

and regulatory area of inquiry, but against an inquiry in an area 

permeated with criminal statutes, where response to any of the 

form’s questions in context might involve the petitioners in the admission of a crucial element of a crime.’’ 250

The gambling tax reporting scheme was next struck down by 

the Court. 251 Because of the pervasiveness of state laws prohibiting 

AMENDMENT 5—RIGHTS OF PERSONS 1409

scribed 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). 252Marchetti v. United States, 390 U.S. 39, 48 (1968). 253 ‘‘Every element of these requirements would have served to incriminate petitioners; to have required him to present his claim to Treasury officers would have 

obliged him ‘to prove guilt to avoid admitting it.’’’ 390 U.S. at 50. 254 ‘‘The question is not whether petitioner holds a ‘right’ to violate state law, 

but whether, having done so, he may be compelled to give evidence against himself. 

The constitutional privilege was intended to shield the guilty and imprudent as well 

as the innocent and foresighted; if such an inference of antecedent choice were alone 

enough to abrogate the privilege’s protection, it would be excluded from the situations in which it has historically been guaranteed, and withheld from those who 

most require it.’’ 390 U.S. at 51. But cf. California v. Byers, 402 U.S. 424, 434 (1971) 

(plurality opinion), in which it is suggested that because there is no ‘‘right’’ to leave 

the scene of an accident a requirement that a person involved in an accident stop 

and identify himself does not violate the self-incrimination clause. 255Marchetti 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). 

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.’’ 252 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. 253 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. 254 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 speculative and insubstantial. 255 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 

1410 AMENDMENT 5—RIGHTS OF PERSONS 

256Marchetti v. United States, 390 U.S. 39, 57 (1968). 257 402 U.S. 424 (1971) 258 402 U.S. at 427–31 (Chief Justice Burger and Justices Stewart, White, and 

Blackmun). 259 ‘‘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 ‘imagiknown 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.’’ 256

Most recent of this line of cases is California v. Byers, 257 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 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. 258 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. 259

AMENDMENT 5—RIGHTS OF PERSONS 1411

nary’ 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.’’ 402 U.S. at 437–38. 260 402 U.S. at 448–58. The four dissenters argued that it was unquestionable 

that Byers would have faced real risks of self-incrimination by compliance with the 

statute and that this risk was sufficient to invoke the privilege. Id. at 459, 464 (Justices Black, Douglas, Brennan, and Marshall). 261 493 U.S. 549 (1990). 262 493 U.S. at 561. By the same token, the Court concluded that the targeted 

group—persons who care for children pursuant to a juvenile court’s custody order— 

is not a group ‘‘inherently suspect of criminal activities’’ in the AlbertsonMarchetti sense. 263 Bram v. United States, 168 U.S. 532, 542 (1897). 

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. 260 Byers was applied in Baltimore Dep’t of Social Services 

v. Bouknight 261 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. 262 Moreover, because the mother had custody of her previously 

abused child only as a result of the juvenile court’s order, the Court 

analogized to the required records cases to conclude that the mother had submitted to the requirements of the civil regulatory regime 

as the child’s ‘‘custodian.’’ 

Confessions: Police Interrogation, Due Process, and 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.’’’ 263 This language in an 1897 case marked a 

1412 AMENDMENT 5—RIGHTS OF PERSONS 

264Miranda v. Arizona, 384 U.S. 436 (1966). 265 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. at § 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 SELFINCRIMINATION 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). 266 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). 

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. 264 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,’’ 265 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. 

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

eighteenth century did courts 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. 266 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 

AMENDMENT 5—RIGHTS OF PERSONS 1413

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

and subject to direct federal judicial supervision. 268Pierce 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. 269 168 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. 270 168 U.S. at 549. 271Ziang 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. 272 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). 273Powers v. United States, 223 U.S. 303 (1912). 274 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). 275 318 U.S. 332 (1943). See also Anderson v. United States, 318 U.S. 350 (1943). 

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.’’ 267

Subsequent cases followed essentially the same line of thought. 268

Then, in Bram v. United States, 269 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. 270 Though this rule 271 and the case 

itself were subsequently approved in several cases, 272 the Court 

could hold within a few years that a confession should not be excluded merely because the authorities had not warned a suspect of 

his right to remain silent, 273 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. . . .’’ 274

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 275 it promulgated a rule excluding confessions obtained after an ‘‘unnecessary 

1414 AMENDMENT 5—RIGHTS OF PERSONS 

276 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). 277McNabb 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. 278Gallegos 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). 279 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. 280McNabb v. United States, 318 U.S. 332, 343 (1943); Mallory v. United States, 

354 U.S. 449, 452–53 (1957). 281The provision was part of the Omnibus Crime Control and Safe Streets Act 

of 1968, 82 Stat. 210, 18 U.S.C. § 3501(c). 282 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. 

delay’’ in presenting a suspect for arraignment after arrest. 276 This

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

lower federal courts 277 and hence not applicable to the States as 

a constitutional rule would have been, 278 was designed to implement the guarantees assured to a defendant by the Federal Rules 

of Criminal Procedure, 279 and was clearly informed with concern 

over incommunicado interrogation and coerced confessions. 280

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 period for interrogation following arrest before the suspect must be 

presented. 281

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. 282 For some thirty years thereafter the 

Court attempted through a consideration of the ‘‘totality of the cirVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00054 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
AMENDMENT 5—RIGHTS OF PERSONS 1415

283 Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961) (announcing judgment 

of the Court). 284 367 U.S. at 602. 285 ‘‘The inquiry whether, in a particular case, a confession was voluntarily or 

involuntarily made involves, at the least, a three-phased process. First, there is the 

business of finding the crude historical facts, the external ‘phenomenological’ occurrences and events surrounding the confession. Second, because the concept of ‘voluntariness’ is one which concerns a mental state, there is the imaginative recreation, 

largely inferential, of internal, ‘psychological’ fact. Third, there is the application to 

this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both 

induction from, and anticipation of, factual circumstances.’’ 367 U.S. at 603. See Developments in the Law—Confessions, 79 HARV. L. REV. 935, 973–82 (1966). 286 Brown v. Mississippi, 297 U.S. 278 (1936). 287 309 U.S. 227 (1940). 288 322 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 selfcumstances’’ 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. 283 ‘‘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.’’ 284 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. 285 Despite, then, a bountiful 

number of cases, binding precedents were few. 

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, 286 but other overtly coercive tactics as well have been condemned. Chambers v. Florida 287 held that five days of prolonged 

questioning following arrests without warrants and incommunicado 

detention made the subsequent confessions involuntary. Ashcraft v. 

Tennessee 288 held inadmissible a confession obtained near the end 

1416 AMENDMENT 5—RIGHTS OF PERSONS 

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. 289 316 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). 290 Blackburn v. Alabama, 361 U.S. 199, 206 (1960). 291Lisenba v. California, 314 U.S. 219 (1941). 292Watts 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. 338 U.S. at 57. 293 346 U.S. 156 (1953). 

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, 289 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.’’ 290

While the Court would not hold that prolonged questioning by 

itself made a resultant confession involuntary, 291 it did increasingly find coercion present even in intermittent questioning over a 

period of days of incommunicado detention. 292 In Stein v. New 

York, 293 however, the Court affirmed convictions of experienced 

AMENDMENT 5—RIGHTS OF PERSONS 1417

294 346 U.S. at 185. 295 373 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). 296 373 U.S. at 514. See also Spano v. New York, 360 U.S. 315 (1959). (After 

eight hours of almost continuous questioning, suspect was induced to confess by 

rookie policeman who was a childhood friend and who played on suspect’s sympathies by falsely stating that his job as a policeman and the welfare of his family 

was at stake); Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours but yielded when officers threatened to bring his invalid wife 

to headquarters). More recent cases include Davis v. North Carolina, 384 U.S. 737 

(1966) (escaped convict held incommunicado 16 days but periods of interrogation 

each day were about an hour each); Greenwald v. Wisconsin, 390 U.S. 519 (1968); 

Darwin v. Connecticut, 391 U.S. 346 (1968). 297Gallegos 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. 298 Colorado v. Connelly, 479 U.S. 157 (1986). 299 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 

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.’’ 294 But by the time Haynes v. 

Washington 295 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. 296 However, the age and intelligence of suspects have been repeatedly cited by the Court in appropriate cases as demonstrating the particular susceptibility of 

the suspects to even mild coercion. 297 But a suspect’s mental state 

alone—even insanity—is insufficient to establish involuntariness 

absent some coercive police activity. 298

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, 299 generally

1418 AMENDMENT 5—RIGHTS OF PERSONS 

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). 300 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). 301Wong Sun v. United States, 371 U.S. 471 (1963). 302Fahy v. Connecticut, 375 U.S. 85 (1963). 303 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). 304 384 U.S. 436 (1966). 305 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 882, at 246 (3d ed. 1940). 306 Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 

(1940); White v. Texas, 310 U.S. 530 (1940). 307 Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 162 U.S. 613 

(1896). 308 314 U.S. 219, 236 (1941). 

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. 300 Of

course, confessions may be induced through the exploitation of 

some illegal action, such as an illegal arrest 301 or an unlawful 

search and seizure, 302 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. 303

From the Voluntariness Standard to Miranda.—Invocation by the Court of a self-incrimination standard for judging the 

fruits of police interrogation was no unheralded novelty in Miranda

v. Arizona. 304 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. 305 It appears that 

this basis informed the Court’s judgment in the early state confession cases 306 as it had in earlier cases from the lower federal 

courts. 307 But in Lisenba v. California, 308 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 

AMENDMENT 5—RIGHTS OF PERSONS 1419

309 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 338

U.S. at 57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 

U.S. 156, 192 (1953), the trustworthiness rationale had secured the adherence of six 

Justices. The primary difference between the two standards is the admissibility 

under the trustworthiness standard of a coerced confession if its trustworthiness can 

be established, if, that is, it can be corroborated. 310 365 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.’’ 311 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). 312 378 U.S. 1 (1964). 

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. 309

Ultimately, however, those Justices who chose to ground the 

exclusionary rule on the latter consideration predominated, so that 

in Rogers v. Richmond 310 Justice Frankfurter spoke for six other 

Justices in writing: ‘‘Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into 

evidence of confessions which are involuntary, i.e., the product of 

coercion, either physical or psychological, cannot stand. This is so 

not because such confessions are unlikely to be true but because 

the methods used to extract them offend an underlying principle in 

the enforcement of our criminal law: that ours is an accusatorial 

and not an inquisitorial system—a system in which the State must 

establish guilt by evidence independently and freely secured and 

may not by coercion prove its charges against an accused out of his 

own mouth.’’ Nevertheless, the Justice said in another case, ‘‘[n]o 

single litmus-paper test for constitutionally impermissible interrogation has been evolved.’’ 311 Three years later, however, in Malloy

v. Hogan, 312 in the process of applying the self-incrimination clause 

to the States, Justice Brennan for the Court reinterpreted the line 

1420 AMENDMENT 5—RIGHTS OF PERSONS 

313 297 U.S. 278 (1936). 314 314 U.S. 219 (1941). 315Malloy 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 under ‘‘Confessions: Police Interrogation, 

Due Process, and Self-Incrimination,’’ supra. 316 378 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. 317Previously, it had been held that a denial of a request to consult counsel was 

but one of the factors to be considered in assessing voluntariness. Crooker v. California, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504 (1958). Chief Justice 

Warren and Justices Black, Douglas, and Brennan were prepared in these cases to 

impose a requirement of right to counsel per se. Post-indictment interrogation without the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315 

(1959), and this was confirmed in Massiah v. United States, 377 U.S. 201 (1964). 

See discussion of ‘‘Custodial Interrogation’’ under Sixth Amendment, infra. 

318 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). 

of cases since Brown v. Mississippi 313 to conclude that the Court 

had initially based its rulings on the common-law confession rationale, but that beginning with Lisenba v. California, 314 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. 315

One week after the decision in Malloy v. Hogan, the Court defined the rules of admissibility of confessions in different terms; 

while it continued to emphasize voluntariness, it did so in self-incrimination terms rather than in due process terms. In Escobedo

v. Illinois, 316 it held inadmissible the confession obtained from a 

suspect in custody who had repeatedly requested and had repeatedly been refused an opportunity to consult with his retained counsel, who was present at the police station seeking to gain access to 

Escobedo. 317 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. 318

Miranda v. Arizona.—The Sixth Amendment holding of 

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319 384 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). 

nation rule made preeminent in Miranda v. Arizona, 319 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 answered 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 

1422 AMENDMENT 5—RIGHTS OF PERSONS 

320 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. 321 384 U.S. at 457. For the continuing recognition of the difference between the 

traditional involuntariness test and the Miranda test, see Michigan v. Tucker, 417 

U.S. 433, 443–46 (1974); Mincey v. Arizona, 437 U.S. 385, 396–402 (1978). 322 Johnson v. New Jersey, 384 U.S. 719, 731 (1966). 323See, 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.’’) 

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. 320 ‘‘In these cases,’’ said Chief 

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

have been involuntary in traditional terms.’’ 321 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. 322 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 guarantees 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, 323 albeit not without considerable qualification. For 

years, the constitutional status of the Miranda warnings was 

clouded in uncertainty. Had the Court announced a constitutional 

rule, or merely set forth supervisory rules that could be superseded 

by statutory rules? The fact that Miranda itself applied the rules 

to a state court proceeding, and that the Court in subsequent cases 

consistently applied the warnings to state proceedings, was strong 

evidence of constitutional moorings. In 1968, however, Congress enVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00062 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
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324Pub. L. No. 90-351, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501. See S. Rep. No. 

1097, 90th Cong., 2d Sess. 37-53 (1968). An effort to enact a companion measure 

applicable to the state courts was defeated. 325 New York v. Quarles, 467 U.S. 549, 653 (1984). 326Michigan v. Tucker, 417 U.S. 433, 444 (1974). 327 , 530 U.S. 428 (2000). 328 530 U.S. at 438. 329 530 U.S. at 439 (quoting from Miranda, 384 U.S. at 441-42). 330 530 U.S. at 443. 

acted a statute designed to set aside Miranda in the federal courts 

and to reinstate the traditional voluntariness test. 324 The statute 

lay unimplemented, for the most part, due to constitutional doubts 

about it. The Court also created exceptions to the Miranda warnings over the years, and referred to the warnings as ‘‘prophylactic’’ 325 and ‘‘not themselves rights protected by the Constitution.’’ 326 There were even hints that some Justices might be willing 

to overrule the decision. 

In Dickerson v. United States, 327 the Court resolved the basic 

issue, holding that Miranda was a constitutional decision that 

could not be overturned by statute, and consequently that 18 

U.S.C. § 3501 was unconstitutional. Application of Miranda warnings to state proceedings necessarily implied a constitutional base, 

the Court explained, since federal courts ‘‘hold no supervisory authority over state judicial proceedings.’’ 328 Moreover, Miranda itself

had purported to ‘‘give concrete constitutional guidance to law enforcement agencies and courts to follow.’’ 329 That the Miranda

rules are constitution-based does not mean that they are ‘‘immutable,’’ however. The Court repeated its invitation for legislative action that would be ‘‘at least as effective’’ in protecting a suspect’s 

right to remain silent during custodial interrogation. Section 3501, 

however, merely reinstated the ‘‘totality-of-the-circumstances’’ rule 

held inadequate in Miranda, so that provision could not be considered as effective as the Miranda warnings.

The Dickerson Court also rejected a request to overrule Miranda. ‘‘Whether or not we would agree with Miranda’s reasoning

and its resulting rule, were we addressing the issue in the first instance,’’ Chief Justice Rehnquist wrote for a seven-Justice majority, 

‘‘the principles of stare decisis weigh heavily against overruling it 

now.’’ There was no special justification for overruling the decision; 

subsequent cases had not undermined the decision’s doctrinal 

underpinnings, but rather had ‘‘reaffirm[ed]’’ its ‘‘core ruling.’’ 

Moreover, Miranda warnings had ‘‘become so embedded in routine 

police practice [that they] have become part of our national culture.’’ 330

1424 AMENDMENT 5—RIGHTS OF PERSONS 

331 In Michigan v. Tucker, 417 U.S. 433, 439 (1974), the Court had suggested 

a distinction between a constitutional violation and a violation of ‘‘the prophylactic 

rules developed to protect that right.’’ The actual holding in Tucker, however, had 

turned on the fact that the interrogation had preceded the Miranda decision and 

that warnings—albeit not full Miranda warnings—had been given. 332 428 U.S. 465 (1976). 333 507 U.S. 680 (1993). 334 367 U.S. 643 (1961). 335 507 U.S. at 691–92. 336 507 U.S. at 693. 337Miranda v. Arizona, 384 U.S. 436, 444 (1966). 338Mathis 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, 496 U.S. 292 (1990). 339Orozco 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).

Although the Court had suggested in 1974 that most Miranda claims could be disallowed in federal habeas corpus cases, 331

such a course was squarely rejected in 1993. The Stone v. Powell 332 rule, precluding federal habeas corpus review of a state prisoner’s claim that his conviction rests on evidence obtained through 

an unconstitutional search or seizure, does not extend to preclude 

federal habeas review of a state prisoner’s Miranda claim, the 

Court ruled in Withrow v. Williams. 333 The Miranda rule differs 

from the Mapp v. Ohio 334 exclusionary rule denied enforcement in 

Stone, the Court explained. While both are prophylactic rules, Miranda unlike Mapp, safeguards a fundamental trial right, the 

privilege against self-incrimination. Miranda also protects against 

the use at trial of unreliable statements, hence, unlike Mapp, relates to the correct ascertainment of guilt. 335 A further consideration was that eliminating review of Miranda claims would not significantly reduce federal habeas review of state convictions, since 

most Miranda claims could be recast in terms of due process denials resulting from admission of involuntary confessions. 336

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.’’ 337 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. 338 If he is placed under arrest, even if he is in his own home, the questioning is custodial. 339

AMENDMENT 5—RIGHTS OF PERSONS 1425

340Oregon 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). 341 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). 342 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 a motorist stopped for traffic violation is 

not custodial interrogation until his ‘‘freedom of action is curtailed to a ‘degree associated with formal arrest’’’). 343Stansbury v. California, 511 U.S. 318 (1994). 344 446 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. 

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, 340 and the fact that he is in his home or 

other familiar surroundings will ordinarily lead to a conclusion that 

the inquiry was noncustodial. 341 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. 342 Whether a person is ‘‘in 

custody’’ is an objective test assessed in terms of how a reasonable 

person in the suspect’s shoes would perceive his or her freedom to 

leave; a police officer’s subjective and undisclosed view that a person being interrogated is a suspect is not relevant for Miranda purposes. 343

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. 344

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 

1426 AMENDMENT 5—RIGHTS OF PERSONS 

345 Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980). 346 446 U.S. 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). 347 451 U.S. 454 (1981). 348 451 U.S. at 467. 

hoped the weapon was found before a child discovered it and was 

injured. The defendant then took them to the weapon’s hiding 

place.

Unanimously rejecting a contention that Miranda would have 

been violated only by express questioning, the Court said: ‘‘We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words 

or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. 

The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This 

focus reflects the fact that the Miranda safeguards were designed 

to vest a suspect in custody with an added measure of protection 

against coercive police practices, without regard to objective proof 

of the underlying intent of the police.’’ 345 A divided Court then concluded that the officers’ conversation did not amount to a functional equivalent of questioning and that the evidence was admissible. 346

In Estelle v. Smith, 347 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. 348 Other instances of questioning in 

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349Miranda v. Arizona, 384 U.S. 436, 444 (1966). See id. at 469–73. 350 384 U.S. at 444. 351 384 U.S. at 469. 352 California v. Prysock, 453 U.S. 355 (1981). Rephrased, the test is whether 

the warnings ‘‘reasonably conveyed’’ a suspect’s rights, the Court adding that reviewing courts ‘‘need not examine Miranda warnings as if construing a will or defining the terms of an easement.’’ Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (upholding warning that included possibly misleading statement that a lawyer would 

be appointed ‘‘if and when you go to court’’). 353Miranda v. Arizona, 384 U.S. 436, 472, 473–74 (1966). 354 451 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. 349 The Court recognized that ‘‘other fully effective means’’ 

could be devised to convey the right to remain silent, 350 but it was 

firm that the prosecution was not permitted to show that an 

unwarned suspect knew of his rights in some manner. 351 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. 352

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. 353 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, 354

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 

1428 AMENDMENT 5—RIGHTS OF PERSONS 

355 451 U.S. at 484–85. The decision was unanimous, but three concurrences objected to a special rule limiting waivers with respect to counsel to suspect-initiated 

further exchanges. Id. at 487, 488 (Chief Justice Burger and Justices Powell and 

Rehnquist). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court held, albeit 

without a majority of Justices in complete agreement as to rationale, that an accused who had initiated further conversations with police had knowingly and intelligently waived his right to have counsel present. So too, an accused who expressed 

a willingness to talk to police, but who refused to make a written statement without 

presence of counsel, was held to have waived his rights with respect to his oral 

statements. Connecticut v. Barrett, 479 U.S. 523 (1987). 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). 356 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). 357Fare 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). 358Michigan 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.’’ 355 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. 356

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. 357 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. 358

Fifth, a properly warned suspect may waive his Miranda rights

and submit to custodial interrogation. Miranda recognized that a 

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359Miranda v. Arizona, 384 U.S. 436, 475 (1966). 360 North Carolina v. Butler, 441 U.S. 369 (1979). 361 441 U.S. 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. 362Tague 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). 363 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). 364Davis v. United States, 512 U.S. 452 (1994) (suspect’s statement that ‘‘maybe 

I should talk to a lawyer,’’ uttered after Miranda waiver and after an hour and a 

half of questioning, did not constitute such a clear request for an attorney when, 

in response to a direct follow-up question, he said ‘‘no, I don’t want a lawyer’’). 365Miranda v. Arizona, 384 U.S. 436, 479 (1966). 366 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. 367 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 violaspond to questioning, but the Court cautioned that the prosecution 

bore a ‘‘heavy burden’’ to establish that a valid waiver had occurred. 359 While the waiver need not be express in order for it to 

be valid, 360 neither may a suspect’s silence or similar conduct constitute a waiver. 361 It must be shown that the suspect was competent to understand and appreciate the warning and to be able to 

waive his rights. 362 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.’’’ 363 After a suspect has knowingly and voluntarily waived his Miranda rights, police officers may continue 

questioning until and unless the suspect clearly requests an attorney. 364

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 365 or for determining the 

sentence, at least in bifurcated trials in capital cases, 366 and neither may the ‘‘fruits’’ of such a confession or admission be used. 367

1430 AMENDMENT 5—RIGHTS OF PERSONS 

tions, 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). 368 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. 369 401 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). 370 420 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). 371 E.g., Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. Portash, 440 

U.S. 450 (1979). 372 467 U.S. 649 (1984). 373The 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. 

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 

be used. 368 Thus, in Harris v. New York, 369 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, 370 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. 371

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, 372 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, 373 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 reVerDate Apr<15>2004 15:27 Aug 16, 2004 Jkt 077500 PO 00000 Frm 00070 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
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374 467 U.S. at 658–59. 375 Berkemer v. McCarty, 468 U.S. 420, 432 (1984). 376 468 U.S. at 434. 377 Culombe v. Connecticut, 367 U.S. 568, 603–06 (1961). 378 367 U.S. at 603. See Ashcraft v. Tennessee, 322 U.S. 143, 152–53 (1944); 

Lyons v. Oklahoma, 322 U.S. 596, 602–03 (1944); Watts v. Indiana, 338 U.S. 49, 

50–52 (1949); Gallegos v. Nebraska, 342 U.S. 55, 60–62 (1951); Stein v. New York, 

346 U.S. 156, 180–82 (1953); Payne v. Arkansas, 356 U.S. 560, 561–62 (1958). 

sulting evidence will be excluded at trial. While acknowledging that 

the exception itself will ‘‘lessen the desirable clarity of the rule,’’ 

the Court predicted that confusion would be slight: ‘‘[w]e think that 

police officers can and will distinguish almost instinctively between 

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

public and questions designed solely to elicit testimonial evidence 

from a suspect.’’ 374 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. 375

‘‘[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.’’ 376

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, 377 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.’’ 378

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. 

1432 AMENDMENT 5—RIGHTS OF PERSONS 

379 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). 380 ‘‘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. 381 507 U.S. 680 (1993). 382 428 U.S. 465 (1976). See discussion of Stone v. Powell under the Fourth 

Amendment, infra.

‘‘No more restricted scope of review would suffice adequately to 

protect federal constitutional rights. For the mental state of 

involuntariness upon which the due process question turns can 

never be affirmatively established other than circumstantially— 

that is, by inference; and it cannot be competent to the trier of fact 

to preclude our review simply be declining to draw inferences 

which the historical facts compel. Great weight, of course, is to be 

accorded to the inferences which are drawn by the state courts. In 

a dubious case, it is appropriate . . . that the state court’s determination should control. But where, on the uncontested external 

happenings, coercive forces set in motion by state law enforcement 

officials are unmistakably in action; where these forces, under all 

the prevailing states of stress, are powerful enough to draw forth 

a confession; where, in fact, the confession does come forth and is 

claimed by the defendant to have been extorted from him; and 

where he has acted as a man would act who is subjected to such 

an extracting process—where this is all that appears in the 

record—a State judgment that the confession was voluntary cannot 

stand.’’ 379 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. 380

In Withrow v. Williams, 381 the Court held that the rule of 

Stone v. Powell, 382 precluding federal habeas corpus review of a 

state prisoner’s claim that his conviction rests on evidence obtained 

through an unconstitutional search or seizure, does not extend to 

preclude federal habeas review of a state prisoner’s claim that his 

conviction rests on statements obtained in violation of the safeguards mandated by Miranda.

AMENDMENT 5—RIGHTS OF PERSONS 1433

383 Jackson v. Denno, 378 U.S. 368, 410–23 (1964) (appendix to opinion of Justice Black concurring in part and dissenting in part). 384 346 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). 385 378 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).

Procedure in the Trial Courts.—The Court has placed constitutional limitations upon the procedures followed by trial courts 

for determining the admissibility of confessions and other incriminating admissions. Three procedures were developed over time to 

deal with the question of admissibility when involuntariness was 

claimed. By the orthodox method, the trial judge heard all the evidence on voluntariness in a separate and preliminary hearing, and 

if he found the confession involuntary the jury never received it, 

while if he found it voluntary the jury received it with the right 

to consider its weight and credibility, which consideration included 

the circumstances of its making. By the New York method, the 

judge first reviewed the confession under a standard leading to its 

exclusion only if he found it not possible that ‘‘reasonable men 

could differ over the [factual] inferences to be drawn’’ from it; otherwise, the jury would receive the confession with instructions to 

first determine its voluntariness and to consider it if it were voluntary and to disregard it if it were not. By the Massachusetts 

method, the trial judge himself determined the voluntariness question and if he found the 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. 383

The New York method was upheld against constitutional attack in Stein v. New York, 384 but eleven years later a five-to-four 

decision in Jackson v. Denno, 385 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 

1434 AMENDMENT 5—RIGHTS OF PERSONS 

386 385 U.S. 538 (1967). 387 Jackson v. Denno, 378 U.S. 368 and n.8 (1964); Lego v. Twomey, 404 U.S. 

477, 489–90 (1972) (rejecting contention that jury should be required to pass on voluntariness following judge’s determination). 388Lego v. Twomey, 404 U.S. 477 (1972). 389 Colorado v. Connelly, 479 U.S. 157 (1986). 390Solesbee 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). 391 Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922). 392Text and commentary on this chapter may be found in W. MCKECHNIE,

MAGNA CARTA—A COMMENTARY ON THE GREAT CHARTER OF KING JOHN 375–95

(Glasgow, 2d rev. ed. 1914). The chapter became chapter 29 in the Third Reissue 

of Henry III in 1225. Id. at 504, and see 139–59. As expanded, it read: ‘‘No free man 

shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon 

him or send against him, except by a legal judgment of his peers or by the law of 

the land.’’ See also J. HOLT, MAGNA CARTA 226–29 (1965). The 1225 reissue also 

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, 386 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. 387 It has held that the prosecution bears the burden of establishing voluntariness by a preponderance of the evidence, rejecting a contention that it should be determined only upon proof beyond a reasonable doubt, 388 or by clear 

and convincing evidence. 389

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.’’ 390 The content of due 

process is ‘‘a historical product’’ 391 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.’’ 392 The phrase ‘‘due process of law’’ first appeared in a 

AMENDMENT 5—RIGHTS OF PERSONS 1435

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. 393 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. 394W. MCKECHNIE, MAGNA CARTA—A COMMENTARY ON THE GREAT CHARTER OF

KING JOHN (Glasgow, 2d rev. ed. 1914); J. HOLT, MAGNA CARTA (1965). 395F. THOMPSON, MAGNA CARTA—ITS ROLE IN THE MAKING OF THE ENGLISH

CONSTITUTION, 1300–1629 (1948). 396SIR EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND, Part II, 50–51 

(1641). For a review of the influence of Magna Carta and Coke on the colonies and 

the new nation, see, e.g., A. HOWARD, THE ROAD FROM RUNNYMEDE—MAGNA CARTA

AND CONSTITUTIONALISM IN AMERICA (1968). 397The 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 

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.’’ 393 Though Magna Carta was in essence the result of a struggle over interest between the King and 

his barons, 394 this particular clause over time transcended any 

such limitation of scope, and throughout the fourteenth century 

parliamentary interpretation expanded far beyond the intention of 

any of its drafters. 395 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.’’ 396 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. 397

1436 AMENDMENT 5—RIGHTS OF PERSONS 

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. 398Murray’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 (1819). And see Chief Justice 

Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857). 399Sinking Fund Cases, 99 U.S. 700, 719 (1879). 400Wong Wing v. United States, 163 U.S. 228, 238 (1896). 401 United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. 

Johnson, 273 U.S. 352 (1927). 402South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966). 403Wight v. Davidson, 181 U.S. 371, 384 (1901). 404Lovato v. New Mexico, 242 U.S. 199, 201 (1916). 405Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920). 406 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. 407 Compare the remarks of Justices Chase and Iredell in Calder v. Bull, 3 U.S. 

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

Scope of the Guaranty.—Standing by itself, the phrase ‘‘due 

process’’ would seem to refer solely and simply to procedure, to 

process in court, and therefore to be so limited that ‘‘due process 

of law’’ would be what the legislative branch enacted it to be. But 

that is not the interpretation which has been placed on the term. 

‘‘It is manifest that it was not left to the legislative power to enact 

any process which might be devised. The article is a restraint on 

the legislative as well as on the executive and judicial powers of 

the government, and cannot be so construed as to leave congress 

free to make any process ‘due process of law’ by its mere will.’’ 398

All persons within the territory of the United States are entitled 

to its protection, including corporations, 399 aliens, 400 and presumptively citizens seeking readmission to the United States, 401 but

States as such are not so entitled. 402 It is effective in the District 

of Columbia 403 and in territories which are part of the United 

States, 404 but it does not apply of its own force to unincorporated 

territories. 405 Nor does it reach enemy alien belligerents tried by 

military tribunals outside the territorial jurisdiction of the United 

States. 406

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. 407 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 

AMENDMENT 5—RIGHTS OF PERSONS 1437

408The 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). 409Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857). 410French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901). 

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. 408 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 

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.’’ 409 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.’’ 410 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 fairVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00077 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
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411Murray’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). 

ness 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 

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. . . .’’ 411

This formal approach to the meaning of due process could obviously have limited both Congress and the state legislatures in the 

AMENDMENT 5—RIGHTS OF PERSONS 1439

412 Hurtado v. California, 110 U.S. 516, 528–29 (1884). 413 110 U.S. 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). 414Davidson v. City of New Orleans, 96 U.S. 97, 102 (1878); Public Clearing 

House v. Coyne, 194 U.S. 497, 508 (1904). 415 Ex parte Wall, 107 U.S. 265, 289 (1883). 416 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). 

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 s 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 

of progress or improvement.’’ 412 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.’’ 413

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. 414 ‘‘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.’’ 415

What is unfair in one situation may be fair in another. 416 ‘‘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— 

1440 AMENDMENT 5—RIGHTS OF PERSONS 

417 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 163 (1951) (Justice Frankfurter concurring). 418Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941). 419 321 U.S. 503, 521 (1944). 420 Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938). 421 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907); Lipke v. Lederer, 259 

U.S. 557 (1922). 422Phillips 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). 423Wong 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). 424Margan 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 

these are some of the considerations that must enter into the judicial judgment.’’ 417

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. 418

In Bowles v. Willingham, 419 the Court sustained orders fixing maximum rents issued without a hearing at any stage, saying ‘‘where 

Congress has provided for judicial review after the regulations or 

orders have been made effective it has done all that due process 

under the war emergency requires.’’ But where, after consideration 

of charges brought against an employer by a complaining union, 

the National Labor Relations Board undertook to void an agreement between an employer and another independent union, the latter was entitled to notice and an opportunity to participate in the 

proceedings. 420 Although a taxpayer must be afforded a fair opportunity for hearing in connection with the collection of taxes, 421 collection by distraint of personal property is lawful if the taxpayer 

is allowed a hearing thereafter. 422

When the Constitution requires a hearing it requires a fair 

one, held before a tribunal which meets currently prevailing standards of impartiality. 423 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. 424 But a variance between the charges 

AMENDMENT 5—RIGHTS OF PERSONS 1441

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). 425 NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 349–50 (1938). 426Western Chem. Co. v. United States, 271 U.S. 268 (1926). See also United

States v. Abilene & So. Ry., 265 U.S. 274, 288 (1924). 427 Richardson v. Perales, 402 U.S. 389 (1971). 428Londoner v. Denver, 210 U.S. 373 (1908). 429FCC 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. 

and findings will not invalidate administrative proceedings where 

the record shows that at no time during the hearing was there any 

misunderstanding as to the basis of the complaint. 425 The mere admission of evidence which would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency. 426

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. 427 While the Court has recognized that in some circumstances a ‘‘fair hearing’’ implies a right to oral argument, 428 it

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

cases. 429

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 emVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00081 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
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430 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 reasonable doubt as to the loyalty of the petitioner by a Loyalty Review Board which, 

on its own initiative, reopened his case after he had twice been cleared by his Agency Loyalty Board, and arrived at its conclusion on the basis of adverse information 

not offered under oath and supplied by informants, not all of whom were known to 

the Review Board and none of whom was disclosed to petitioner for cross-examination by him. The Board was found not to possess any power to review on its own 

initiative. Concurring, Justices Douglas and Black condemned as irreconcilable with 

due process and fair play the use of faceless informers whom the petitioner is unable to confront and cross-examine. 

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). 431 363 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 

ployment 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. 430 Since the Civil Rights 

Commission acts solely as an investigative and fact-finding agency 

and makes no adjudications, the Court, in Hannah v. Larche, 431

AMENDMENT 5—RIGHTS OF PERSONS 1443

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). 432 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). 433Shaughnessy 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 

upheld supplementary rules of procedure adopted by the Commission, independently of statutory authorization, under which state 

electoral officials and others accused of discrimination and summoned to appear at its hearings, are not apprised of the identity 

of their accusers, and witnesses, including the former, are not accorded a right to confront and cross-examine witnesses or accusers 

testifying at such hearings. Such procedural rights, the Court 

maintained, have not been granted by grand juries, congressional 

committees, or administrative agencies conducting purely fact-finding investigations in no way determining private rights. 

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. 432 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. 433 The complete authority of Congress in the 

1444 AMENDMENT 5—RIGHTS OF PERSONS 

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

(1958). 434Oceanic Navig. Co. v. Stranahan, 214 U.S. 320 (1909). 435Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v. 

United States, 208 U.S. 8 (1908). 436 United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy 

v. Johnson, 273 U.S. 352, 358 (1927). 437 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). 438Zakonaite 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. 439 339 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 

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. 434 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. 435 Where

the statute made the decision of an immigration inspector final unless an appeal was taken to the Secretary of the Treasury, a person 

who failed to take such an appeal did not, by an allegation of citizenship, acquire a right to a judicial hearing on habeas corpus. 436

Deportation proceedings are not criminal prosecutions within 

the meaning of the Bill of Rights. 437 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. 438 In Wong Yang Sung v. McGrath, 439 however,

AMENDMENT 5—RIGHTS OF PERSONS 1445

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. 440 5 U.S.C. §§ 551 et seq. 441 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). 442 198 U.S. 253 (1905). 443 Ng Fung Ho v. White, 259 U.S. 276, 281 (1922). 444Zadvydas v. Davis, 533 U.S. 678, 691 (2001) (construing a statute so as to 

avoid a ‘‘serious constitutional threat’’ (id. at 699), and recognizing a ‘‘presumptively 

reasonable’’ detention period of six months for removable aliens). 445Ludecke 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. 

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

meet the standards of impartiality embodied in the Administrative 

Procedure Act 440 might not satisfy the requirements of due process 

of law. To avoid such constitutional doubts, the Court construed 

the law to disqualify immigration inspectors as presiding officers in 

deportation proceedings. Except in time of war, deportation without 

a fair hearing or on charges unsupported by any evidence is a denial of due process which may be corrected on habeas corpus. 441 In

contrast with the decision in United States v. Ju Toy 442 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. 443 Because aliens within the United States are protected by due process, Congress must give ‘‘clear indication’’ of an 

intent to authorize indefinite detention of illegal aliens, and probably must also cite ‘‘special justification,’’ as, e.g., for ‘‘suspected 

terrorists.’’ 444 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. 445

Judicial Review of Administrative Proceedings.—To the 

extent that constitutional rights are involved, due process of law 

1446 AMENDMENT 5—RIGHTS OF PERSONS 

446 298 U.S. 38 (1936). 447 298 U.S. at 51–54. Justices Brandeis, Stone, and Cardozo, while concurring 

in the result, took exception to this proposition. 448FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); FPC v. Hope Gas 

Co., 320 U.S. 591 (1944). 449FPC v. Hope Gas Co., 320 U.S. 591, 602 (1944). 450 327 U.S. 1 (1946). 451 339 U.S. 763 (1950). Justices Douglas, Black, and Burton dissented. 452 339 U.S. 103 (1950). 

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, 446

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. 447 Subsequent cases sustaining rate orders 

of the Federal Power Commission have not dealt explicitly with 

this point. 448 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.’’ 449

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, 450 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, 451 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, 452 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 

AMENDMENT 5—RIGHTS OF PERSONS 1447

453 339 U.S. at 111. 454 346 U.S. 137, 140–41, 146, 147, 148, 150, 153 (1953). 455 367 U.S. 497, 540, 541 (1961). The internal quotation is from Hurtado v. 

California, 110 U.S. 516, 532 (1884). Development of substantive due process is 

briefly noted, above under ‘‘Scope of the Guaranty’’ and is treated more extensively 

under the Fourteenth Amendment. 

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.’’ 453 Similarly, in Burns v. Wilson, 454 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 

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, 455 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 guarVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00087 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1448 AMENDMENT 5—RIGHTS OF PERSONS 

456Detroit Bank v. United States, 317 U.S. 329, 337 (1943); Helvering v. Lerner 

Stores Corp., 314 U.S. 463, 468 (1941). 457Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937). See also Currin v. 

Wallace, 306 U.S. 1, 13–14 (1939). 458Truax v. Corrigan, 257 U.S. 312, 331 (1921). See also Hirabayashi v. United 

States, 320 U.S. 81, 100 (1943). 459 347 U.S. 497, 499–500 (1954). 460 347 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).

anty against discriminatory legislation by Congress.’’ 456 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.’’ 457 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.’’ 458 Thus, in Bolling v. Sharpe, 459 a companion case to Brown

v. Board of Education, 460 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 governVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00088 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
AMENDMENT 5—RIGHTS OF PERSONS 1449

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

636, 638 n.2 (1975); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214-18 

(1995). 462Frontiero 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). 463 Compare Jiminez v. Weinberger, 417 U.S. 628 (1974) with Mathews v. Lucas, 

427 U.S. 495 (1976). 464Department of Agriculture v. Murry, 413 U.S. 508 (1973). See also Department of Agriculture v. Moreno, 413 U.S. 528 (1973). 465 Richardson v. Belcher, 404 U.S. 78, 81 (1971); FCC v. Beach Communications, 508 U.S. 307 (1993) (exemption from cable TV regulation of facilities that 

serve only dwelling units under common ownership); Lyng v. Castillo, 477 U.S. 635 

(1986) (Food Stamp Act limitation of benefits to households of related persons who 

prepare meals together). With respect to courts and criminal legislation, see Hurtado

v. United States, 410 U.S. 578 (1973); Marshall v. United States, 414 U.S. 417 

(1974); United States v. MacCollom, 426 U.S. 317 (1976). 466 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). 

mental 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, is the 

same as that under the Fourteenth Amendment.’’ 461 So saying, the 

court has applied much of its Fourteenth Amendment jurisprudence to strike down sex classifications in federal legislation, 462

reached classifications with an adverse impact upon 

illegitimates, 463 and invalidated some welfare assistance provisions 

with some interesting exceptions. 464 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. 465 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. 466 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 difVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00089 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1450 AMENDMENT 5—RIGHTS OF PERSONS 

467 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). 

468 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. 

469 United States v. New York S.S. Co., 269 U.S. 304 (1925). 

470 United States v. Carolene Products Co., 304 U.S. 144 (1938); Carolene Products Co. v. United States, 323 U.S. 18 (1944). 

471Kentucky Whip & Collar Co. v. Illinois Cent. R.R., 299 U.S. 334 (1937). 

ferent from that caused by alternative service, and for Congress to 

have so provided to make military service more attractive. 467

‘‘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.’’ 468 The paramount federal power over 

immigration and naturalization is the principal example, although 

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. 469 It may prohibit the transportation in interstate 

commerce of filled milk 470 or the importation of convict-made goods 

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

of local law. 471 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 meetVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00090 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
AMENDMENT 5—RIGHTS OF PERSONS 1451

472 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). 473 Ex parte Jackson, 96 U.S. 727 (1878); Rowan v. Post Office Dep’t, 397 U.S. 

728 (1970). 474St. 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). 475 320 U.S. 591 (1944). The result of this case had been foreshadowed by the 

opinion of Justice Stone in FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 

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

formula or combination of formulas in determining rates. 476 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). 477 Valvoline Oil Co. v. United States, 308 U.S. 141 (1939); Champlin Rfg. Co. 

v. United States, 329 U.S. 29 (1946). 

ings. 472 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. 473

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. 474 A few years 

later, in FPC v. Hope Gas Co., 475 the Court adopted an entirely different 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, 476 and statutes requiring a private carrier 

to furnish the Interstate Commerce Commission with information 

for valuing its property 477 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 requirVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00091 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1452 AMENDMENT 5—RIGHTS OF PERSONS 

478 Isbrandtsen-Moller Co. v. United States, 300 U.S. 146 (1937). 479St. Louis S.W. Ry. v. United States, 245 U.S. 136, 143 (1917). 480 New England Divisions Case, 261 U.S. 184 (1923). 481Dayton-Goose Creek Ry. v. United States, 263 U.S. 456, 481, 483 (1924). 482 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). 483 Assigned Car Cases, 274 U.S. 564, 575 (1927). 484 United States v. Delaware & Hudson Co., 213 U.S. 366, 405, 411, 415 (1909). 485 United States v. Lowden, 308 U.S. 225 (1939). 486Louisville & Nashville R.R. v. Mottley, 219 U.S. 467 (1911). 

ing it to file a summary of its books and records pertaining to its 

rates was also held not to violate the Fifth Amendment. 478

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, 479 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. 480 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. 481 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. 482 Similarly, the fact that a rule concerning the allotment of coal cars operated to restrict the use of private cars did not 

amount to a taking of property. 483 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. 484 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 485 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. 486

A non-arbitrary Interstate Commerce Commission order establishing a non-compensatory rate for carriage of certain commodities 

does not violate the due process or just compensation clauses as 

AMENDMENT 5—RIGHTS OF PERSONS 1453

487 Baltimore & Ohio R.R. v. United States, 345 U.S. 146 (1953). 488 Chicago, R.I. & P. Ry. v. United States, 284 U.S. 80 (1931). 489 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). 490 United States v. Bennett, 232 U.S. 299, 307 (1914). 491 Cook v. Tait, 265 U.S. 47 (1924). 492 Helvering v. Lerner Stores Co., 314 U.S. 463, 468 (1941). But see discussion

of ‘‘Discrimination’’ supra. 493 Brushaber v. Union Pac. R.R., 240 U.S. 1, 24 (1916). 494McCray v. United States, 195 U.S. 27, 61 (1904). 495Treat v. White, 181 U.S. 264 (1901). 496Flint v. Stone Tracy Co., 220 U.S. 107 (1911). 

long as the public interest thereby is served and the rates as a 

whole yield just compensation. 487

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. 488 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. 489

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, 490 and it may tax the income 

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

at his residence. 491 The difference is explained by the fact that protection of the Federal Government follows the citizen wherever he 

goes, whereas the benefits of state government accrue only to persons and property within the State’s borders. The Supreme Court 

has said that, in the absence of an equal protection clause, ‘‘a claim 

of unreasonable classification or inequality in the incidence or application of a tax raises no question under the Fifth Amendment. 

. . .’’ 492 It has sustained, over charges of unfair differentiation between persons, a graduated income tax, 493 a higher tax on oleomargarine than on butter, 494 an excise tax on ‘‘puts’’ but not on 

‘‘call,’’ 495 a tax on the income of business operated by corporations 

but not on similar enterprises carried on by individuals, 496 an income tax on foreign corporations, based on their income from 

sources within the United States, while domestic corporations are 

1454 AMENDMENT 5—RIGHTS OF PERSONS 

497 National Paper Co. v. Bowers, 266 U.S. 373 (1924). 498 Billings v. United States, 232 U.S. 261, 282 (1914). 499Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 

U.S. 619 (1937). 500 Bromley v. McCaughn, 280 U.S. 124 (1929). 501 Haavik v. Alaska Packers’ Ass’n, 263 U.S. 510 (1924). 502 Alaska Fish Co. v. Smith, 255 U.S. 44 (1921). 503LaBelle Iron Works v. United States, 256 U.S. 377 (1921). 504 Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940). 505Fernandez v. Wiener, 326 U.S. 340 (1945); cf. Coolidge v. Long, 282 U.S. 582 

(1931). 506 United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4 (1970). 507 United States v. Darusmont, 449 U.S. 292, 296–97 (1981). 508Stockdale 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). 

taxed on income from all sources, 497 a tax on foreign-built but not 

upon domestic yachts, 498 a tax on employers of eight or more persons, with exemptions for agricultural labor and domestic service, 499 a gift tax law embodying a plan of graduations and exemptions under which donors of the same amount might be liable for 

different sums, 500 an Alaska statute imposing license taxes only on 

nonresident fisherman, 501 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, 502 an excess profits tax which defined ‘‘invested capital’’ with reference to the original cost of the 

property rather than to its present value, 503 an undistributed profits tax in the computation of which special credits were allowed to 

certain taxpayers, 504 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, 505 and a tax on nonprofit mutual insurers 

although such insurers organized before a certain date were exempt inasmuch as a continuing exemption for all insurers would 

have led to their multiplication to the detriment of other federal 

programs. 506

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. 507

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. 508 ‘‘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 govVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00094 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
AMENDMENT 5—RIGHTS OF PERSONS 1455

509Welch v. Henry, 305 U.S. 134, 146–47 (1938). 510 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). 511 Cooper v. United States, 280 U.S. 409 (1930); see also Reinecke v. Smith, 289 

U.S. 172 (1933). 512 Helvering v. Mitchell, 303 U.S. 391 (1938). 513 Helvering v. National Grocery Co., 304 U.S. 282 (1938). 514Patton v. Brady, 184 U.S. 608 (1902). 515Tyler v. United States, 281 U.S. 497 (1930); United States v. Jacobs, 306 

U.S. 363 (1939). 516 Reinecke v. Smith, 289 U.S. 172 (1933). 517 Untermyer v. Anderson, 276 U.S. 440 (1928); Blodgett v. Holden, 275 U.S. 

142 (1927), modified, 276 U.S. 594 (1928); Nichols v. Coolidge, 274 U.S. 531 (1927). 

See also Heiner v. Donnan, 285 U.S. 312 (1932) (invalidating as arbitrary and capricious a conclusive presumption that gifts made within two years of death were made 

in contemplation of death). 

ernment 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.’’ 509 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. 510 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. 511 Retroactive assessment of penalties for fraud or negligence, 512 or of an additional tax on the income of a corporation 

used to avoid a surtax on its shareholder, 513 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. 514 Similarly upheld were a 

transfer tax measured in part by the value of property held jointly 

by a husband and wife, including that which comes to the joint tenancy as a gift from the decedent spouse 515 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. 516

Although the Court during the 1920s struck down gift taxes 

imposed retroactively upon gifts that were made and completely 

vested before the enactment of the taxing statute, 517 those decisions have recently been distinguished, and their precedential 

1456 AMENDMENT 5—RIGHTS OF PERSONS 

518 Untermyer was distinguished in United States v. Hemme, 476 U.S. 558, 568 

(1986), upholding retroactive application of unified estate and gift taxation to a taxpayer as to whom the overall impact was minimal and not oppressive. All three 

cases were distinguished in United States v. Carlton, 512 U.S. 26, 30 (1994), as having been ‘‘decided during an era characterized by exacting review of economic legislation under an approach that ‘has long since been discarded.’’’ The Court noted further that Untermyer and Blodgett had been limited to situations involving creation 

of a wholly new tax, and that Nichols had involved a retroactivity period of 12 

years. Id. 519 512 U.S. 26, 30 (1994) (quoting Usery v. Turner Elkhorn Mining Co., 428 

U.S. 1, 16–17 (1976)). These principles apply to estate and gift taxes as well as to 

income taxes, the Court added. 512 U.S. at 34. 520 512 U.S. at 33. 521 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).

value limited. 518 In United States v. Carlton, the Court declared 

that ‘‘[t]he due process standard to be applied to tax statutes with 

retroactive effect . . . is the same as that generally applicable to 

retroactive economic legislation’’– retroactive application of legislation must be shown to be ‘‘’justified by a rational legislative purpose.’’’ 519 Applying that principle, the Court upheld retroactive application of a 1987 amendment limiting application of a federal estate tax deduction originally enacted in 1986. Congress’ purpose 

was ‘‘neither illegitimate nor arbitrary,’’ the Court noted, since 

Congress had acted ‘‘to correct what it reasonably viewed as a mistake in the original 1986 provision that would have created a significant and unanticipated revenue loss.’’ Also, ‘‘Congress acted 

promptly and established only a modest period of retroactivity.’’ 

The fact that the taxpayer had transferred stock in reliance on the 

original enactment was not dispositive, since ‘‘[t]ax legislation is 

not a promise, and a taxpayer has no vested right in the Internal 

Revenue Code.’’ 520

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. 521 Legislation readjusting rights and burdens is not unlawful 

solely because it upsets otherwise settled expectations, but it must 

AMENDMENT 5—RIGHTS OF PERSONS 1457

522Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 

(1984). Accord, United States v. Sperry Corp., 493 U.S. 52, 65 (1989) (upholding imposition of user fee on claimants paid by Iran-United States Claims Tribunal prior 

to enactment of fee statute). Concrete Pipe & Products v. Construction Laborers 

Pension Trust, 508 U.S. 602, 636–41 (1993) (imposition of multiemployer pension 

plan withdrawal liability on an employer is not irrational, even though none of its 

employees had earned vested benefits by the time of withdrawal). In Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), the challenge was to a statutory requirement 

that companies formerly engaged in mining pay miner retiree health benefits, as applied to a company that had placed its mining operations in a wholly owned subsidiary three decades earlier, before labor agreements included an express promise 

of lifetime benefits. In a fractured opinion, the justices ruled 5–4 that the scheme’s 

severe retroactive effect offended the Constitution, though differing on the governing 

clause. Four of the majority justices based the judgment solely on takings law, while 

opining that ‘‘there is a question’’ whether the statute violated due process as well. 

The remaining majority justice, and the four dissenters, viewed substantive due 

process as the sole appropriate framework for resolving the case, but disagreed on 

whether a violation had occurred. 523Fleming v. Rhodes, 331 U.S. 100, 107 (1947). 524FHA 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. 

take account of the realities previously existing, i.e., that the danger may not have been known or appreciated, or that actions might 

have been taken in reliance upon the current state of the law; 

therefore, legislation imposing liability on the basis of deterrence or 

of blameworthiness might not have passed muster. The Court has 

applied Turner Elkhorn in upholding retroactive application of pension plan termination provisions to cover the period of congressional consideration, declaring that the test for retroactive application of legislation adjusting economic burdens is merely whether 

‘‘the retroactive application . . . is itself justified by a rational legislative purpose.’’ 522

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. 523 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. 524

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 

1458 AMENDMENT 5—RIGHTS OF PERSONS 

525Woods v. Stone, 333 U.S. 472 (1948). 526Mulford 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). 527Legal Tender Cases (Knox v. Lee ), 79 U.S. (12 Wall.) 457, 551 (1871). 528 Norman v. Baltimore & Ohio R.R., 294 U.S. 240 (1935). 529Perry v. United States, 294 U.S. 330 (1935). 530Lynch v. United States, 292 U.S. 571 (1934). See also De La Rama S.S. Co. 

v. United States, 344 U.S. 386 (1953). Notice that these kinds of cases are precisely 

the ones that would be condemned under the contract clause, even under the relaxed scrutiny now employed, if the action were taken by a State. E.g., United 

States Trust Co. v. New Jersey, 431 U.S. 1 (1977). ‘‘Less searching standards’’ are 

imposed by the Due Process Clauses than by the Contract Clause. Pension Benefit 

Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984). Also, statutory reservation of the right to amend an agreement can defuse most such constitutional 

issues. Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 

41 (1986) (amendment of Social Security Act to prevent termination by state when 

termination notice already filed). The Court has addressed similar issues under 

breach of contract theory. United States v. Winstar Corp., 518 U.S. 839 (1996). 531 Noble v. Union River Logging R.R., 147 U.S. 165 (1893). 

retroactivity which is condemned by law. 525 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. 526

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

coin, 528 but rights against the United States arising out of contract 

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, 529 and a statute abrogating contracts of war risk insurance was held unconstitutional as applied 

to outstanding policies. 530

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. 531 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 

AMENDMENT 5—RIGHTS OF PERSONS 1459

532Danzer Co. v. Gulf R.R., 268 U.S. 633 (1925). 533 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). 534 Holt v. Henley, 232 U.S. 637, 639–40 (1914). See also Auffm’ordt v. Rasin, 

102 U.S. 620, 622 (1881). 535Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). 536Wright v. Vinton Branch, 300 U.S. 440 (1937). The relatively small modifications that the Court accepted as making the difference in validity, and the fact that 

subsequently the Court interpreted the statute so as to make smaller the modifications, John Hancock Mut. Life Ins. Co. v. Bartels, 308 U.S. 180, 184 & n.3 (1939); 

Wright v. Union Central Ins. Co., 311 U.S. 273, 278–79 (1940), has created differences of opinion with respect to whether Radford remains sound law. Cf.

Helvering v. Griffiths, 318 U.S. 371, 400–01 & n.52 (1943) (suggesting Radford 

might not have survived Vinton Branch). 537 Continental Illinois Nat’l Bank & Trust Co. v. Chicago, R.I. & P. Ry., 294 

U.S. 648 (1935). 

part of the liability, not merely a matter of remedy, and would violate the Fifth Amendment if retroactive. 532

Bankruptcy Legislation.—In acting pursuant to its power to 

enact uniform bankruptcy legislation, Congress has regularly authorized retrospective impairment of contractual obligations, 533 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, 534 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 

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. 535 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. 536

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. 537 A provision that claims 

resulting from rejection of an unexpired lease should be treated as 

1460 AMENDMENT 5—RIGHTS OF PERSONS 

538Kuchner v. Irving Trust Co., 299 U.S. 445 (1937). 539 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). 540Lynch v. United States, 292 U.S. 571, 581 (1934). 541Dodge v. Osborn, 240 U.S. 118 (1916). 542Graham & Foster v. Goodcell, 282 U.S. 409 (1931). 543 Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937). 544 United States v. Heinszen & Co., 206 U.S. 370, 386 (1907). 545Second Employers’ Liability Cases, 223 U.S. 1, 50 (1912). See also Silver v. 

Silver, 280 U.S. 117, 122 (1929) (a state case). 

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. 538 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. 539

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

be conditioned upon an appeal to the Commissioner and his refusal 

to refund. 541 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 

mistake of administrative officials in allowing the statute of limitations to run before collecting a tax. 542 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. 543 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. 544

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.’’ 545 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 

AMENDMENT 5—RIGHTS OF PERSONS 1461

546The 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. 547 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). 

548Paramino Co. v. Marshall, 309 U.S. 370 (1940). 549See ‘‘Liberty of Contract’’ heading under Fourteenth Amendment, infra. 550 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). 551 E.g., United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1981); 

Schweiker v. Wilson, 450 U.S. 221 (1981). 552 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. 

substitute remedy. 546 Such a holding seems only remotely likely, 547

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. 548

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 invocation against legislation deemed to abridge liberty of contract. 549

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

pronounced. 551

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.’’ 552 EmiVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00101 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1462 AMENDMENT 5—RIGHTS OF PERSONS 

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). 553 Boom Co. v. Patterson, 98 U.S. 403, 406 (1879). 554Prior 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). 555 91 U.S. 367 (1876). 556 United States v. Gettysburg Electric Ry., 160 U.S. 668, 679 (1896). 557 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). 558Kohl v. United States, 91 U.S. 367 374 (1876). 559 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). 

nent domain ‘‘appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.’’ 553 In the early years of the nation the federal power of 

eminent domain lay dormant, 554 and it was not until 1876 that its 

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

States 555 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, 556 but once this is conceded the ambit 

of national powers is so wide-ranging that vast numbers of objects 

may be effected. 557 This prerogative of the National Government 

can neither be enlarged nor diminished by a State. 558 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. 559

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

power of eminent domain of state governments ‘‘was unrestrained 

AMENDMENT 5—RIGHTS OF PERSONS 1463

560Green v. Frazier, 253 U.S. 233, 238 (1920). 561 Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). 562Davidson 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. 563 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). 564 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). 565Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–59 (1896); Cole v. La 

Grange, 113 U.S. 1, 6 (1885). 

by any federal authority.’’ 560 The just compensation provision of 

the Fifth Amendment did not apply to the States, 561 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. 562 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.’’ 563 While the guarantees of just compensation flow from 

two different sources, the standards used by the Court in dealing 

with the issues appear to be identical, and both federal and state 

cases will be dealt with herein without expressly continuing to recognize the two different bases for the rulings. 

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. 564

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. 565 The question whether a parVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00103 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1464 AMENDMENT 5—RIGHTS OF PERSONS 

566 ‘‘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). 567 Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in 

District of Columbia). 568Green 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).569 Hairston v. Danville & Western Ry., 208 U.S. 598, 607 (1908). An act of condemnation was voided as not for a public use in Missouri Pac. Ry. v. Nebraska, 164 

U.S. 403 (1896), but the Court read the state court opinion as acknowledging this 

fact, thus not bringing it within the literal content of this statement. 570 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). 571 327 U.S. at 552. 572So it seems to have been considered in Berman v. Parker, 348 U.S. 26, 32 

(1954). 573 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 

ticular intended use is a public use is clearly a judicial one, 566 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.’’ 567 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. 568 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 . . . .’’ 569 However, in a 1946 case involving federal eminent domain power, the 

Court cast considerable doubt upon the power of courts to review 

the issue of public use. ‘‘We think that it is the function of Congress to decide what type of taking is for a public use and that the 

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

its statutory authority.’’ 570 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, 571 but it may well be that the case simply stands for the 

necessity for great judicial restraint. 572 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. 573

AMENDMENT 5—RIGHTS OF PERSONS 1465

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). 574 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). 575 Berman v. Parker, 348 U.S. 26, 32, 33 (1954). 576 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. 577 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 

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. 574 The modern conception of public use equates it with 

the police power in the furtherance of the public interest. No definition of the reach or limits of the power is possible, the Court has 

said, because such ‘‘definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public safety, public health, morality, peace and quiet, law 

and order—these are some of the . . . traditional application[s] of 

the police power . . . .’’ Effectuation of these matters being within 

the authority of the legislature, the power to achieve them through 

the exercise of eminent domain is established. ‘‘For the power of 

eminent domain is merely the means to the end.’’ 575 Traditionally,

eminent domain has been utilized to facilitate transportation, the 

supplying of water, and the like, 576 but the use of the power to establish public parks, to preserve places of historic interest, and to 

promote beautification has substantial precedent. 577

1466 AMENDMENT 5—RIGHTS OF PERSONS 

(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 Manassas National Battlefield Park). 

578 348 U.S. 26, 32–33 (1954) (citations omitted). Rejecting the argument that 

the project was illegal because it involved the turning over of condemned property 

to private associations for redevelopment, the Court said: ‘‘Once the object is within 

the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise 

for redevelopment of the area. Appellants argue that this makes the project a taking 

from one businessman for the benefit of another businessman. But the means of 

executing the project are for Congress and Congress alone to determine, once the 

public purpose has been established. The public end may be as well or better served 

through an agency of private enterprise than through a department of government—or so the Congress might conclude.’’ Id. at 33–34 (citations omitted). 

579 467 U.S. 229, 243 (1984). 

580 467 U.S. at 243. 

581 467 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’’). 

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, 578 a unanimous Court observed: ‘‘The concept of the public welfare is broad and inclusive. 

The values it represents are spiritual as well as physical, aesthetic 

as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, 

spacious as well as clean, well-balanced as well as carefully patrolled.’’ For ‘‘public use,’’ then, it may well be that ‘‘public interest’’ 

or ‘‘public welfare’’ is the more correct phrase. Berman was applied 

in Hawaii Housing Auth. v. Midkiff, 579 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.’’ 580

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

a sovereign’s police powers,’’ the Court concluded. 581

AMENDMENT 5—RIGHTS OF PERSONS 1467

582 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 573, 575 (1898). 583 Armstrong v. United States, 364 U.S. 40, 49 (1960). ‘‘The political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice.’’ United 

States v. Cors, 337 U.S. 325, 332 (1949). There is no constitutional prohibition 

against confiscation of enemy property, but aliens not so denominated are entitled 

to the protection of this clause. Compare United States v. Chemical Foundation, 272 

U.S. 1, 11 (1926) and Stoehr v. Wallace, 255 U.S. 239 (1921), with Silesian-American Corp. v. Clark, 332 U.S. 469 (1947), Russian Volunteer Fleet v. United States, 

282 U.S. 481 (1931), and Guessefeldt v. McGrath, 342 U.S. 308, 318 (1952). Takings 

Clause protections for such aliens may be invoked, however, only ‘‘when they have 

come within the territory of the United States and developed substantial connections with this country.’’ United States v. Verdugo-Urquidez, 494 U.S. 259, 271 

(1990). 584Monongahela 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, 

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). 585 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). 586 Regional Rail Reorganization Act Cases, 419 U.S. 102, 150–51 (1974). 587 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). 588 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 ColJust 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.’’ 582 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.’’ 583

The just compensation required by the Constitution is that 

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

taken.’’ 584 Originally the Court required that the equivalent be in 

money, not in kind, 585 but more recently has cast some doubt on 

this assertion. 586 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.’’’ 587 The general standard thus is the market 

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

seller. 588 If fair market value does not exist or cannot be calVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00107 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1468 AMENDMENT 5—RIGHTS OF PERSONS 

lieries 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). 589 United States v. Miller, 317 U.S. 369, 374 (1943). 590 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. 591 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). 592 United States v. Cors, 337 U.S. 325 (1949). And see United States v. Toronto 

Navigation Co., 338 U.S. 396 (1949). 593 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. 

culated, resort must be had to other data which will yield a fair 

compensation. 589 However, the Court is resistant to alternative 

standards, having repudiated reliance on the cost of substitute facilities. 590 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. 591 By a five-to-four decision, the Court ruled that the Government was not obliged to pay 

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

enhanced as a consequence of the Government’s wartime needs. 592

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. 593 However, when 

the Federal Government condemned privately owned grazing land 

of a rancher who had leased adjacent federally owned grazing land, 

AMENDMENT 5—RIGHTS OF PERSONS 1469

594 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. 595Danforth 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). 596 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). 597 Albrecht v. United States, 329 U.S. 599 (1947). 598 Henkels v. Sutherland, 271 U.S. 298 (1926); see also Phelps v. United States, 

274 U.S. 341 (1927). 599 United States v. Welch, 217 U.S. 333 (1910). 600 United States v. General Motors, 323 U.S. 373 (1945). 601 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 priit 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. 594

Interest.—Ordinarily, property is taken under a condemnation 

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

no interest accrues. 595 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.’’ 596 If the owner and the Government enter into a contract which stipulates the purchase price 

for lands to be taken, with no provision for interest, the Fifth 

Amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed. 597

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. 598

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 599

and leaseholds. 600 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. 601 On the other hand, if 

1470 AMENDMENT 5—RIGHTS OF PERSONS 

vate right-of-way, an allowance was properly made for the value of the easement. 

United States v. Welch, 217 U.S. 333 (1910). 602 Bauman v. Ross, 167 U.S. 548 (1897). 603Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893). 604 Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932). 605Lynch v. United States, 292 U.S. 571, 579 (1934); Omnia Commercial Corp. 

v. United States, 261 U.S. 502, 508 (1923). 606 James v. Campbell, 104 U.S. 356, 358 (1882). See also Hollister v. Benedict 

Mfg. Co., 113 U.S. 59, 67 (1885). 607 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). 608Monongahela Navigation Co. v. United States, 148 U.S. 312, 345 (1983). 609Omnia Commercial Co. v. United States, 261 U.S. 502 (1923). 610 International Paper Co. v. United States, 282 U.S. 399 (1931). 611 Armstrong v. United States, 364 U.S. 40, 50 (1960). 612Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 88 n.32 (1978). 

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

off against the value of the land condemned, 602 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. 603 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. 604

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, 605 patent rights, 606 and trade 

secrets. 607 So too, the franchise of a private corporation is property 

that cannot be taken for public use without compensation. Upon 

condemnation of a lock and dam belonging to a navigation company, the Government was required to pay for the franchise to take 

tolls as well as for the tangible property. 608 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, 609 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. 610 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. 611 As a general matter, there is no property interest in the 

continuation of a rule of law. 612 And, even though state participaVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00110 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
AMENDMENT 5—RIGHTS OF PERSONS 1471

613 Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 

41 (1986). 614 ‘‘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). 615Mitchell 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). 616 United States v. General Motors Corp., 323 U.S. 373, 382 (1945). 617 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). 

tion 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. 613 Similarly, there is no right 

to the continuation of governmental welfare benefits. 614

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. 615 ‘‘Whatever of property the citizen has the Government 

may take. When it takes the property, that is, the fee, the lease, 

whatever, he may own, terminating altogether his interest, under 

the established law it must pay him for what is taken, not more; 

and he must stand whatever indirect or remote injuries are properly comprehended within the meaning of ‘consequential damage’ 

as that conception has been defined in such cases. Even so the consequences often are harsh. For these whatever remedy may exist 

lies with Congress.’’ 616 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. 617 Another exception to the general rule occurs with 

1472 AMENDMENT 5—RIGHTS OF PERSONS 

618 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. 619 United States v. Jones, 109 U.S. 513 (1883); Bragg v. Weaver, 251 U.S. 57 

(1919). 620 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 Preseault v. ICC, 494 U.S. 1 (1990). 621 Bauman v. Ross, 167 U.S. 548 (1897). Even when a jury is provided to determine the amount of compensation, it is the rule at least in federal court that the 

trial judge is to instruct the jury with regard to the criteria and this includes determination of ‘‘all issues’’ other than the precise issue of the amount of compensation, 

so that the judge decides those matters relating to what is computed in making the 

calculation. United States v. Reynolds, 397 U.S. 14 (1970). 622 Rule 71A(h), Fed. R. Civ. P. These commissions have the same powers as a 

court-appointed master. 623Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893). 624Long 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). 625 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569 (1898). 

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. 618

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. 619 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. 620 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. 621 Federal courts may appoint a commission in condemnation actions to resolve the compensation issue. 622 If a body other than a court is designated to determine just compensation, its decision must be subject to judicial 

review, 623 although the scope of review may be limited by the legislature. 624 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.’’ 625 ‘‘[T]here must be something more than an ordinary honest mistake of law in the proceedings for compensation beVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00112 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
AMENDMENT 5—RIGHTS OF PERSONS 1473

626McGovern v. City of New York, 229 U.S. 363, 370–71 (1913). 627 229 U.S. 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). 628Legal 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. 629Meyer v. City of Richmond, 172 U.S. 82 (1898). 630Sauer 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). 631 Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897). 632Manigault v. Springs, 199 U.S. 473 (1905). 

fore a party can make out that the State has deprived him of his 

property unconstitutionally.’’ 626 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. 627

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 

the exercise of lawful power.’’ 628 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; 629 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. 630 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, 631 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. 632

1474 AMENDMENT 5—RIGHTS OF PERSONS 

633Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177–78 (1872). 634 United States v. Dickinson, 331 U.S. 745, 748 (1947). 635Portsmouth 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). 636 United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny County, 

369 U.S. 84 (1962). A corporation chartered by Congress to construct a tunnel and 

operate railway trains therein was held liable for damages in a suit by one whose 

property was so injured by smoke and gas forced from the tunnel as to amount to 

a taking. Richards v. Washington Terminal Co., 233 U.S. 546 (1914). 637 ‘‘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). 638Gibson 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); 

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. 633 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.’’ 634 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. 635 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. 636 Eventually, the term ‘‘inverse condemnation’’ came to be 

used to refer to such cases where the government has not instituted formal condemnation proceedings, but instead the property 

owner has sued for just compensation, claiming that governmental 

action or regulation has ‘‘taken’’ his property. 637

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. 638

AMENDMENT 5—RIGHTS OF PERSONS 1475

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). 

639 United States v. Virginia Elec. & Power Co., 365 U.S. 624, 628 (1961). 

640 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). 

641Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn v. Vermillion 

Corp., 444 U.S. 206 (1979). 

642Mugler 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). 

643 1 NICHOLS’ THE LAW OF EMINENT DOMAIN § 1.42 (J. Sackman, 3d rev. ed. 

1973).

644 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).

This exception does not apply to lands above the ordinary highwater mark of a stream, 639 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. 640 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. 641

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 

area of health and safety regulations. 642 ‘‘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.’’ 643 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. 644 The older 

cases flatly denied the possibility of compensation for this diminuVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00115 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1476 AMENDMENT 5—RIGHTS OF PERSONS 

645Mugler 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). 646Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). See also Lucas

v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (a regulation that deprives 

a property owner of all beneficial use of his property requires compensation, unless 

the owner’s proposed use is one prohibited by background principles of property or 

nuisance law existing at the time the property was acquired). 647 260 U.S. at 414–15. 648 260 U.S. at 415. In dissent, Justice Brandeis argued that a restriction imposed to abridge the owner’s exercise of his rights in order to prohibit a noxious use 

or to protect the public health and safety simply could not be a taking, because the 

owner retained his interest and his possession. Id. at 416. 649Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987). 650 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). 

tion of property values, 645 but the Court in 1922 established as a 

general principle that ‘‘if regulation goes too far it will be recognized as a taking.’’ 646

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 that reserved to the coal companies ownership of subsurface mining rights and that held the companies harmless for 

damage caused by subsurface mining operations. The statute thus 

gave the homeowners more than they had been able to obtain 

through contracting, and at the same time deprived the coal companies of the entire value of their subsurface estates. The Court observed that ‘‘[f]or practical purposes, the right to coal consists in 

the right to mine,’’ and that the statute, by making it ‘‘commercially impracticable to mine certain coal,’’ had essentially ‘‘the same 

effect for constitutional purposes as appropriating or destroying 

it.’’ 647 The regulation, therefore, in precluding the companies from 

exercising any mining rights whatever, went ‘‘too far.’’ 648 However,

when presented 65 years later with a very similar restriction on 

coal mining, the Court upheld it, pointing out that, unlike its predecessor, the newer law identified important public interests. 649

The Court had been early concerned with the imposition upon 

one or a few individuals of the costs of furthering the public interest. 650 But it was with respect to zoning, in the context of substantive due process, that the Court first experienced some difficulty in this regard. The Court’s first zoning case involved a real 

estate company’s challenge to a comprehensive municipal zoning 

AMENDMENT 5—RIGHTS OF PERSONS 1477

651 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 

652 272 U.S. at 395. See also Zahn v. Board of Public Works, 274 U.S. 325 (1927). 

653 Nectow v. City of Cambridge, 277 U.S. 183 (1928). 

654 Initially, the Court’s return to the land-use area involved substantive due 

process, not takings. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (sustaining 

single-family zoning as applied to group of college students sharing a house); Moore 

v. City of East Cleveland, 431 U.S. 494 (1977) (voiding single-family zoning so strictly construed as to bar a grandmother from living with two grandchildren of different 

children). See also City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976). 

655Penn 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). 

656Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme 

Court Expropriation Law, SUP. CT. REV. 63 (1962). 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). 

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. 651 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.’’ 652 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. 653 But then the Court withdrew from the landuse scene until the 1970s, giving little attention to States and their 

municipalities as they developed more comprehensive zoning techniques. 654

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.’’ 655 Rather, as one commentator remarked, its decisions 

constitute a ‘‘crazy quilt pattern’’ of judgments. 656 Nonetheless, the 

Court has now formulated general principles that guide many of its 

decisions in the area. 

1478 AMENDMENT 5—RIGHTS OF PERSONS 

657 438 U.S. 104 (1978). Justices Rehnquist and Stevens and Chief Justice Burger dissented. Id. at 138. 658 438 U.S. at 124 (citations omitted). 659 438 U.S. at 124–28, 135–38. 660 260 U.S. at 413. 661 United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (requirement 

that permit be obtained for filling privately-owned wetlands is not a taking, although permit denial resulting in prevention of economically viable use of land may 

be).

In Penn Central Transportation Co. v. City of New York, 657 the

Court, while cautioning that regulatory takings cases require ‘‘essentially ad hoc, factual inquiries,’’ nonetheless laid out general 

guidance for determining whether a regulatory taking has occurred. ‘‘The economic impact of the regulation on the claimant 

and, particularly, the extent to which the regulation has interfered 

with distinct investment-backed expectations are . . . relevant considerations. So too, is the character of the governmental action. A 

‘taking’ may more readily be found when the interference with 

property can be characterized as a physical invasion by government 

than when interference arises from some public program adjusting 

the benefits and burdens of economic life to promote the common 

good.’’ 658

At issue in Penn Central was the City’s landmarks preservation law, as applied to deny approval to construct a 53-story office 

building atop Grand Central Terminal. The Court upheld the landmarks law against Penn Central’s takings claim through application of the principles set forth above. The economic impact on Penn 

Central was considered: the Company could still make a ‘‘reasonable return’’ on its investment by continuing to use the facility as 

a rail terminal with office rentals and concessions, and the City 

specifically permitted owners of landmark sites to transfer to other 

sites the right to develop those sites beyond the otherwise permissible zoning restrictions, a valuable right that mitigated the burden 

otherwise to be suffered by the owner. As for the character of the 

governmental regulation, the Court found the landmarks law to be 

an economic regulation rather than a governmental appropriation 

of property, the preservation of historic sites being a permissible 

goal and one that served the public interest. 659

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,’’ 660 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, 661 nor does a simple recVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00118 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
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662Texaco 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). 663 467 U.S. 986 (1984). 664 467 U.S. at 1011. 665 467 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. 666 475 U.S. 211 (1986). Accord, Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602, 645–46 (1993). In addition, see Kaiser Aetna 

v. United States, 444 U.S. 164, 179 (1979) (involving frustration of ‘‘expectancies’’ 

developed through improvements to private land and governmental approval of permits), and PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (characterizing and distinguishing Kaiser Aetna as involving interference with ‘‘reasonable investment backed expectations’’). 667 524 U.S. 498 (1998). The split doctrinal basis of Eastern Enterprises undercuts its precedent value, and that of Connolly and Concrete Pipe, for takings law. 

A majority of the justices (one supporting the judgment and four dissenters) found 

substantive due process, not takings law, to provide the analytical framework 

ordation requirement. 662 The tests become more useful, however, 

when compliance with regulation becomes more onerous. 

Several times the Court has relied on the concept of ‘‘distinct 

[or, in later cases, ‘reasonable’] investment-backed expectations’’ 

first introduced in Penn Central. In Ruckelshaus v. Monsanto 

Co., 663 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 distinct investment-backed expectation,’’ would have 

destroyed the property value of the trade secret and constituted a 

taking. 664 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. 665 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. 666 upheld retroactive imposition of liability for pension plan withdrawal on the 

basis that employers had at least constructive notice that Congress 

might buttress the legislative scheme to accomplish its legislative 

aim that employees receive promised benefits. However, where a 

statute imposes severe and ‘‘substantially disproportionate’’ retroactive liability based on conduct several decades earlier, on parties 

that could not have anticipated the liability, a taking (or violation 

of due process) may occur. On this rationale, the Court in Eastern

Enterprises v. Apfel 667 struck down the Coal Miner Retiree Health 

1480 AMENDMENT 5—RIGHTS OF PERSONS 

where, as in Eastern Enterprises, the gravamen of the complaint is the unfairness 

and irrationality of the statute, rather than its economic impact. 668 Andrus v. Allard, 444 U.S. 51 (1979). 669Similarly, 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, 505 U.S. 1003, 

1027-28 (1992), that Allard may rest on a distinction between permissible regulation 

of personal property, on the one hand, and real property, on the other. 670Penn Central, 438 U.S. at 130. The identical principle was reaffirmed in Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987); Concrete 

Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 508 U.S. 

602, 644 (1993); and Tahoe-Sierra, 122 S. Ct. at 1481. 

Benefit Act’s requirement that companies formerly engaged in mining pay miner retiree health benefits, as applied to a company that 

spun off its mining operation in 1965 before collective bargaining 

agreements included an express promise of lifetime benefits. 

On the other hand, a federal ban on the sale of artifacts made 

from eagle feathers was sustained as applied to the existing inventory of a commercial dealer in such artifacts, the Court not directly 

addressing the ban’s obvious interference with investment-backed 

expectations. 668 The Court merely noted that the ban served a substantial public purpose in protecting the eagle from extinction, that 

the owner still had viable economic uses for his holdings, such as 

displaying them in a museum and charging admission, and that he 

still had the value of possession. 669

The Court has made plain that in applying the economic impact and investment-backed expectations factors of Penn Central,

courts are to compare what the property owner has lost through 

the challenged government action with what the owner retains. 

Discharging this mandate requires a court to define the extent of 

plaintiff’s property—the ‘‘parcel as a whole’’—that sets the scope of 

analysis. The Supreme Court holds that takings law ‘‘does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.’’ 670 But while this apparently means that one may not exclude acreage from the relevant parcel solely to isolate the regulated portion, there are numerous arguments for excluding acreage 

(purchased by plaintiff at a different time, in different zoning status, etc.) that the Court has not addressed. And roiling the waters 

are persistent expressions of concern by the conservative justices, 

often in dicta, about the possible unfairness of an absolute parVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00120 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
AMENDMENT 5—RIGHTS OF PERSONS 1481

671See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 n.7 

(1992) (‘‘answer ... may lie in how the owner’s reasonable expectations have been 

shaped by the State’s law of property’’). Justice Kennedy provided extended dicta 

in his majority opinion in Palazzolo v. Rhode Island, referring to this ‘‘difficult, persisting question’’ and noting that ‘‘we have at times expressed discomfort with the 

logic of this rule.’’ 533 U.S. 606, 631 (2001). 672 122 S. Ct. 1465 (2002). 673The spatial dimension is illustrated by the takings analysis in Penn Central, declining to segment Grand Central Terminal from the air rights over it. Functional parcel as a whole—refusing to segment one ‘‘stick’’ in the ‘‘bundle’’ of rights— 

was applied in Andrus v. Allard, 444 U.S. 51, 65-66 (1979), holding that denial of 

the right to sell Indian artifacts was not a taking in light of rights in the artifacts 

that were retained. 674The dissent was based upon this test. 438 U.S. at 144–46. 675 369 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. 

cel-as-a-whole rule. 671 Most recently, however, in Tahoe-Sierra

Preservation Council v. Tahoe Regional Planning Agency, 672 a

six-justice majority including Justices Kennedy and O’Connor offered a ringing endorsement of relevant-parcel doctrine. 

Tahoe-Sierra affirmed the established spatial (court must consider 

the entire relevant tract) and functional (court must consider plaintiff’s full bundle of rights) dimensions of the doctrine, 673 and added 

a temporal one (court must consider the entire time span of plaintiff’s property interest). Invoking this temporal dimension, the 

Court held that temporary land-use development moratoria do not 

effect a total elimination of use, since use and value return in the 

period following the moratorium’s expiration. Thus, such moratoria 

are to be tested under the ad hoc, multifactor Penn Central test,

rather than the per se approach to ‘‘total takings’’ discussed further 

on.

In the course of its opinion in Penn Central the Court rejected 

the principle that no compensation is required when regulation 

bans a noxious or harmful effect of land use. 674 The principle, it 

had been contended, followed from several earlier cases, including 

Goldblatt v. Town of Hempstead. 675 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, 

1482 AMENDMENT 5—RIGHTS OF PERSONS 

676 369 U.S. at 593 (quoting Mugler v. Kansas, 123 U.S. 623, 668–69 (1887). The 

Court posited a two-part test. First, the interests of the public required the interference, and, second, the means were reasonably necessary for the accomplishment 

of the purpose and were not unduly oppressive of the individual. 369 U.S. at 595. 

The test was derived from Lawton v. Steele, 152 U.S. 133, 137 (1894) (holding that 

state officers properly destroyed fish nets that were banned by state law in order 

to preserve certain fisheries from extinction). 677 438 U.S. at 133–34 n.30. 678 505 U.S. 1003 (1992). 679 505 U.S. at 1026. The Penn Central majority also rejected the dissent’s contention, 438 U.S. at 147–50, that regulation of property use constitutes a taking unless it spreads its distribution of benefits and burdens broadly so that each person 

burdened has at the same time the enjoyment of the benefit of the restraint upon 

his neighbors. The Court deemed it immaterial that the landmarks law has a more 

severe impact on some landowners than on others: ‘‘Legislation designed to promote 

the general welfare commonly burdens some more than others.’’ Id. at 133–34. 680 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). 681The rule emerged from cases involving flooding of lands and erection of poles 

for telegraph lines, e.g., Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872); 

City of St. Louis v. Western Union Tel. Co., 148 U.S. 92 (1893); Western Union Tel. 

Co. v. Pennsylvania R.R., 195 U.S. 540 (1904). 

is prejudicial to the public interests.’’ 676 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.’’ 677 More recently, in Lucas

v. South Carolina Coastal Council, 678 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.’’ 679

Penn Central is not the only guide to when an inverse condemnation has occurred; other criteria have emerged from other 

cases before and after Penn Central. The Court has long recognized 

a per se takings rule for certain physical invasions: when government permanently 680 occupies (or authorizes someone else to permanently 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. 681 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 c cubic feet of space on the exterior of each building and had only 

AMENDMENT 5—RIGHTS OF PERSONS 1483

682Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). 

Loretto was distinguished in FCC v. Florida Power Corp., 480 U.S. 245 (1987); regulation of the rates that utilities may charge cable companies for pole attachments 

does not constitute a taking in the absence of any requirement that utilities allow 

attachment and acquiesce in physical occupation of their property. See also Yee v. 

City of Escondido, 503 U.S. 519 (1992) (no physical occupation was occasioned by 

regulations in effect preventing mobile home park owners from setting rents or determining who their tenants would be; owners could still determine whether their 

land would be used for a trailer park and could evict tenants in order to change 

the use of their land). 683Tahoe-Sierra, 122 S. Ct. at 1479. 684This test was derived from Nectow v. City of Cambridge, 277 U.S. 183 (1928), 

a due process case. 685 447 U.S. 255, 260 (1980). 686Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992) (emphasis in original). The Agins/ Lucas total deprivation rule does not create an allor-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 1019 n.8 (1992). See also Palazzolo, 533 U.S. at 632. 

de minimis economic impact, a divided Court held that the regulation authorized a permanent physical occupation of the property 

and thus constituted a taking. 682 Recently, the Court sharpened 

further the distinction between regulatory takings and permanent 

physical occupations by declaring it ‘‘inappropriate’’ to use case law 

from either realm as controlling precedent in the other. 683 Physical

invasions falling short of permanent physical occupations remain 

subject to Penn Central.

A second per se taking rule is of more recent vintage. Land use 

controls constitute takings, the Court stated in Agins v. City of 

Tiburon, if they do not ‘‘substantially advance legitimate governmental interests,’’ 684 or if they deny a property owner ‘‘economically viable use of his land.’’ 685 This second Agins criterion creates 

a categorical rule: when, with respect to the parcel as a whole, the 

landowner ‘‘has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his 

property economically idle, he has suffered a taking.’’ 686 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 comVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00123 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1484 AMENDMENT 5—RIGHTS OF PERSONS 

687 505 U.S. at 1029. 688 533 U.S. 606 (2001). 689 533 U.S. at 627. 690 122 S. Ct. at 1486. 691 505 U.S. at 1029 n.16. 692 344 U.S. 149 (1952). In dissent, Justices Black and Douglas advocated the 

applicability of a test formulated by Justice Brandeis in Nashville, C. & St. L. Ry. 

v. Walters, 294 U.S. 405, 429 (1935), a regulation case, to the effect that ‘‘when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured.’’ 693 357 U.S. 155 (1958). 

plementary power to abate [public] nuisances . . . , or otherwise.’’ 687 Thus, while there is no broad ‘‘noxious use’’ exception separating police power regulations from takings, there is a narrower 

‘‘background principles’’ exception based on the law of nuisance and 

unspecified ‘‘property law’’ principles. 

Together with the investment-backed expectations factor of 

Penn Central, background principles were viewed by many lower 

courts as supporting a ‘‘notice rule’’ under which a taking claim 

was absolutely barred if based on a restriction imposed under a 

regulatory regime predating plaintiff’s acquisition of the property. 

In Palazzolo v. Rhode Island, 688 the Court forcefully rejected the 

absolute version of the notice rule, regardless of rationale. Under 

such a rule, it said, ‘‘[a] State would be allowed, in effect, to put 

an expiration date on the Takings Clause.’’ 689 Whether any role is 

left for preacquisition regulation in the takings analysis, however, 

the Court’s majority opinion did not say, leaving the issue to dueling concurrences from Justice O’Connor (prior regulation remains 

a factor) and Justice Scalia (prior regulation is irrelevant). Less 

than a year later, Justice O’Connor’s concurrence carried the day 

in extended dicta in Tahoe-Sierra, 690 though the decision failed to 

elucidate the factors affecting the weighting to be accorded the 

pre-existing regime. 

The ‘‘or otherwise’’ reference, the Court explained in Lucas, 691

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, 692 the owners of property destroyed by retreating United States armies in Manila during World 

War II were held not entitled to compensation, and in United

States v. Central Eureka Mining Co., 693 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 

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AMENDMENT 5—RIGHTS OF PERSONS 1485

694 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). 695 Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). 696 483 U.S. 825 (1987). 697 483 U.S. at 837. 698 483 U.S. at 842. 699 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. 700 512 U.S. 374 (1994). 

tion 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. 694

The first prong of the Agins test, 695 asking whether land use 

controls ‘‘substantially advance legitimate governmental interests,’’ 

has been applied by the Court only in Nollan v. California Coastal 

Commission. 696 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 out-and-out plan of extortion.’’’ 697 ‘‘If [the government] wants an easement across the Nollans’ property, it must 

pay for it.’’ 698 Because the Nollan Court found no essential nexus 

between the permit condition and the asserted government interest, it did not address whether there is any additional requirement 

when such a nexus does exist. 699 Seven years later, however, the 

Court announced in Dolan v. City of Tigard 700 that conditions attached to development permits must be related to the impact of the 

proposed development not only in nature but also in degree. GovVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00125 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
1486 AMENDMENT 5—RIGHTS OF PERSONS 

701 526 U.S. 687 (1999). 702 City of Monterey also appears to give a lax interpretation to the ‘‘substantially advances a legitimate government interest’’ test of Agins, by endorsing jury 

instructions interpreting ‘‘substantially advance’’ to require only a ‘‘reasonable relationship.’’ 526 U.S. at 704. Such a reading of City of Monterey, however, puts it 

squarely at odds with Nollan, 483 U.S. at 834 n.3, where the Court earlier stressed 

that ‘‘substantially advance’’ imposes a stricter standard than the due process one 

of rational basis. 703See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) (issue not reached because property owners challenging development density restrictions had not submitted a development plan); Hodel v. Virginia Surface Mining & 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). 704 482 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, 

ernment must establish a ‘‘rough proportionality’’ between the burden imposed by such conditions on the property owner, and the impact of the property owner’s proposed development on the community—at least in the context of adjudicated (rather than legislated) 

conditions.

Nollan and Dolan occasioned considerable debate over the 

breadth of what became known as the ‘‘heightened scrutiny’’ test. 

The stakes were plainly high in that the test, where it applies, 

lessens the traditional judicial deference to local police power and 

places the burden of proof as to rough proportionality on the government. In City of Monterey v. Del Monte Dunes at Monterey, 

Ltd., 701 the Court unanimously confined the Dolan rough proportionality test, and, by implication, the Nollan nexus test, to the 

exaction context that gave rise to those cases. For certain, then, is 

that City of Monterey bars application of rough proportionality to 

outright denials of development. Still unclear, however, is whether 

the Court meant to place outside Dolan exactions of a purely monetary nature, in contrast with the dedication conditions involved in 

Nollan and Dolan. 702

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. 703 The remedy question arises 

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. 704 The Court recognized that, 

AMENDMENT 5—RIGHTS OF PERSONS 1487

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). 705 482 U.S. at 321. 706 Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (statute imposing generalized monetary liability); Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory 

requirement that small fractional interests in allotted Indian lands escheat to tribe, 

rather than pass on to heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment 

version of escheat statute). 707 Armstrong v. United States, 364 U.S. 40, 49 (1960). For other incantations 

of this fairness principle, see Penn Central, 438 U.S. at 123–24; and Tahoe-Sierra 

Pres. Council v. Tahoe Regional Planning Agency, 122 S. Ct. 1465, 1478, 1484-89 

(2002). 708Webb’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). 709Penn 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 

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.’’ 705 Outside the landuse context, however, the Court has now recognized a limited number of situations where invalidation, rather than compensation, remains the appropriate takings remedy. 706

The process of describing general criteria to guide resolution of 

regulatory taking claims, begun in Penn Central, has reduced to 

some extent the ad hoc character of takings law. It is nonetheless 

true that not all cases fit neatly into the categories delimited to 

date, and that still other cases that might be so categorized are explained in different terms by the Court. The overriding objective, 

the Court frequently reminds us, is to vitalize the Takings Clause’s 

protection against government ‘‘forcing some people alone to bear 

public burdens which, in all fairness and justice, should be borne 

by the public as a whole.’’ 707 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. 708 Similarly, the Court looks askance 

at governmental efforts to secure public benefits at a landowner’s 

expense— ‘‘government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions.’’ 709

1488 AMENDMENT 5—RIGHTS OF PERSONS 

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). 710 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). 711 Hodel v. Irving, 481 U.S. 704 (1987) (complete abrogation of the right to pass 

on to heirs fractionated interests in lands constitutes a taking), Babbitt v. Youpee, 

519 U.S. 234 (1997) (same result based on ‘‘severe’’ restriction of the right). 712Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (interest on 

client funds in state Interest on Lawyers Trust Account program is property of client within meaning of Takings Clause, though funds could not generate net interest 

in absence of program). 713First English, Nollan, Lucas, Dolan, and City of Monterey. 714Lucas spoke of the total taking situation to which its rule applied as ‘‘extraordinary’’ and ‘‘relatively rare.’’ 505 U.S. at 1017-18. Quite recently, 

Tahoe-Sierra reiterated the ‘‘extraordinary’’ reference. 122 S. Ct. at 1483. 

On the other side of the coin, the nature as well as the extent 

of property interests affected by governmental regulation sometimes takes on importance. Some strands are more important than 

others. The right to exclude others from one’s land is so basic to 

ownership that extinguishment of this right ordinarily constitutes 

a taking. 710 Similarly valued is the right to pass on property to 

one’s heirs. 711 Nor must property have realizable net value to fall 

under the Takings Clause. 712

Even though takings were found or assumed in several decisions since 1987, 713 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 government regulation renders land entirely without economic use, will 

doubtless prove rare, as the Court itself envisioned on more than 

one occasion. 714 Buttressing this point is Tahoe-Sierra’s strong implication that the Lucas per se rule is triggered only by complete 

elimination of use and value, something that occurs exceedingly infrequently in the real world in light of the lingering value even 

undevelopable land may have as open space or for speculation. 

More broadly, Tahoe-Sierra is suffused with a general distaste for 

the use of per se rules in takings analysis, leading observers to 

argue that in the ordinary regulatory situation, the ad hoc Penn

Central standard will often be ‘‘the only game in town.’’. 

Failure to incur administrative (and judicial) delays can result 

in dismissal of an as-applied taking claim based on ripeness docVerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00128 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030
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715 473 U.S. 172 (1985). 716 477 U.S. 340 (1986). 717Pennell v. City of San Jose, 485 U.S. 1 (1988). 718 533 U.S. 606 (2001). 719 533 U.S. at 620. See also Suitum v. Tahoe Regional Planning Agency, 520 

U.S. 725 (1997) (taking claim ripe despite plaintiff’s not having applied for sale of 

her transferrable development rights, since no discretion remains to agency and 

value of such rights is simple issue of fact). 

trine, an area of takings law that the Court has developed extensively since Penn Central. In the leading decision of Williamson

County Regional Planning Commission v. Hamilton Bank, 715 the

Court announced the canonical two-part ripeness test for takings 

actions brought in federal court. First, for an as-applied challenge, 

the property owner must obtain from the regulating agency a 

‘‘final, definitive position’’ regarding how it will apply its regulation 

to the owner’s land. Second, when suing a state or municipality, 

the owner must exhaust any possibilities for obtaining compensation from the state or its courts before coming to federal court. 

Thus, the claim in Williamson County was found unripe because 

the plaintiff had failed to seek a variance (first prong of test), and 

had not sought compensation from the state courts in question 

even though they recognized inverse condemnation claims (second 

prong). Similarly, in MacDonald, Sommer & Frates v. County of 

Yolo, 716 a final decision was found lacking where the landowner 

had been denied approval for one subdivision plan calling for intense development, but that denial had not foreclosed the possibility that a scaled-down (though still economic) version would be 

approved. In a somewhat different context, a taking challenge to a 

municipal rent control ordinance was considered ‘‘premature’’ in 

the absence of evidence that a tenant hardship provision had ever 

been applied to reduce what would otherwise be considered a reasonable rent increase. 717 Beginning with Lucas in 1992, however, 

the Court’s ripeness determinations have displayed an impatience 

with formalistic reliance on the ‘‘final decision’’ rule, while nonetheless explicitly reaffirming it. In Palazzolo v. Rhode Island, 718 for

example, the Court saw no point in requiring the landowner to 

apply for approval of a scaled-down development of his wetland, 

since the regulations at issue made plain that no development at 

all would be permitted there. ‘‘[O]nce it becomes clear that the 

agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of 

certainty, a takings claim is likely to have ripened.’’ 719

Facial challenges dispense with the Williamson County final

decision prerequisite, though at great risk to the plaintiff in that 

without pursuing administrative remedies, a claimant often lacks 

1490 AMENDMENT 5—RIGHTS OF PERSONS 

720See, 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); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 

U.S. 470, 493–502 (1987) (facial challenge to anti-subsidence mining law rejected). 

evidence that a statute has the requisite economic impact on his 

or her property. 720