Fifth Amendment Indictment of Grand Jury

The grand jury originated in England, under the rule of King John. The king selected the grand jury to be a body of his reign that would accuse no innocent person, and would shelter no guilty person. The Fifth Amendment of the United States protects people from self-incrimination by forcing the prosecution to obtain an indictment (complaint) from a grand jury before the case can be presented in trial before a court.

Today, grand juries are virtually inexistent with the exception of the United States, which in some cases, still utilizes a grand jury. The Fifth Amendment clause on grand juries does not protect individuals serving in the military because they are considered to be United States property. By federal law, misdemeanors do not require an indictment to be obtained for a trial. Federal law only requires an indictment for felony cases to be presented before a court.

One of the reasons that grand juries are almost inexistent today is that it is so heavily criticized by so many because the defendant is not represented today in the process. In many cases, the defendant can be easily persuaded by the prosecutor to disclose information that can be very useful, and is likely to be used during the final trial. Because the defendant is not represented, rarely will a grand jury decide against the wishes of the prosecution. Disbarred former Chief Judge of New York, Judge Sol Watchler, was once quoted as saying that it is so easy for the prosecutor to persuade the grand jury to “indict a ham sandwich.”

Grand juries are selected by the local prosecutor, and in many occasions jurors have served several times before, and have a proven record to indict. No states have a regulation that will limit the number of grand juries that the prosecutor can assemble before finally getting the indictment he or she wants. Unfortunately, if an indictment is not acquired the first time, the prosecutor can form as many juries as necessary, to get an indictment. This issue became apparent when Texas prosecutor, Ronnie Earle, formed three grand juries before he could get Senator Tom Delay indicted on criminal charges, that he had violated campaign finance laws. Delay denied the charges, but was forced by the Republican Party to temporarily resign from his position as majority leader.

To compensate for some of the deficiencies related to grand juries, many jurisdictions in the United States have replaced grand juries with a procedure in which the prosecutor can issue charges by filing an information (an accusation). Following the filing of an information by the prosecutor, a preliminary trial is held before a judge in whom the defendant can have his counsel present.

Fifth Amendment Double Jeopardy

Double jeopardy covers many types of crimes. The definition of double jeopardy can be found in the Fifth Amendment of the U. S. Constitution. Actually, double jeopardy has a few definitions. Double jeopardy stems off from the fact that no one would be held to answer capital or infamous crime, or on presentment, or most notably, indictment of grand jury. Double jeopardy projects a person against multiple punishments charged for the same crime. For example, double jeopardy protects an individual who is charged for murder of another individual, went to court and was found innocent, that person could not be charged again for that same murder charge of that other person at a later time.

The same thing applies for robbery, assault, and so forth. The term “jeopardy” means “danger” inflicted on any individual. What this means, is that once the jury is sworn in, and after hearing all of the evidence produced at trial, the jury will decide if the person accused is either not guilty or guilty, that is the final decision. At a later time, if the same charges are brought up again, it won’t go to trial because of the double jeopardy law. The term “double jeopardy” means “danger” of second punishment. What this term refers to is that an individual cannot be retried for that same crime.

Arguments have been heard on double jeopardy with conspiracy cases, in the Supreme Court. November 27, 2005, arguments were heard in the U.S. Supreme Court, about whether sentencing for both a drug conspiracy and a continuing criminal enterprise conviction constitutes a violation of the Fifth Amendment double jeopardy prohibition (Rutledge v. U.S., No. 94-8769, 58 CrL 3088); and (U.S. v. Rutledge, 40 F.3d879 (7th Cir. 1994). Rutledge had been convicted of conspiracy for distributing cocaine, conducting criminal enterprise (CCE), continuously, firearm possession by a felon, and carrying or using a firearm during a drug felony.

Two of the other defendants, Shelly Henson and Richard Hagemaster, were also convicted with the charge of distribution of cocaine. Tommy L. Rutledge was sentenced by the district court, to a life sentence for the CCE offense along with a life sentence being served consecutively with the CCE offense, as it is the lesser of the two charges. The U.S. Court of Appeals saw nothing wrong with the double jeopardy sentences being how the judge ordered the sentences to be served consecutively. In another case, the defense counsel objected, with arguments that the court grantedthe verdict motion on first-degree murder would violate the Double Jeopardy Clause. (Price, Warden v. Vincent, No. 02-524 (Certiorari to the United States Court of Appeals for the Sixth Circuit).

The Court of Appeals in Michigan reversed, stating that the Double Jeopardy Clause would prevent the respondent’s prosecution of first-degree murder. The State Supreme Court determined that the trial judge’s comments weren’t sufficient enough to terminate jeopardy. Upon the conclusion the Michigan Supreme Court stated that “there was no formal judgment or order entered on the record.” Therefore, stating that the formal rulings did not demonstrate any finality, but did caution that the judgment must have enough finality in order to survive the appeal.I

Fifth Amendment Right against Self-Incrimination

According to, the Fifth Amendment clause which reads “no person shall be compelled to be a witness against himself in any criminal case” means testimony, not physical evidence. According to, Fifth Amendment of the U.S. Constitution gives individuals the right to refuse to answer any questions or make any statements, which would help establish that the person committed a crime or is connected to any criminal activity. This right is also know as the Fifth Amendment privilege against self-incrimination, which is invoked when someone is said to “plead the Fifth.”

Statements compelled by police interrogation, may not be used against a defendant in a criminal case. At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant’s lawyer cannot force the defendant to take the witness stand at trial, if he or she does not want to do so. When a defendant exercises his or her right not to testify, the jury is not permitted to take that refusal into consideration when deciding whether the defendant is guilty of the crime(s) charged.

Once the defendant does take the stand and testifies at trial, he or she cannot choose to answer some questions, but not others. The defendant’s Fifth Amendment privilege is waived by taking the stand to testify. The Fifth Amendment right against self-incrimination ensure that a defendant in a criminal case cannot be forced to testify and “be a witness against himself or herself” ( But it does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal case. In other words, a defendant may not refuse to submit to these procedures by asserting the Fifth Amendment privilege.

During a criminal trial, it is not only the defendant that has the privilege of the Fifth Amendment. Witnesses who are asked to testify, can refuse to answer certain questions by asserting their Fifth Amendment rights, if answering would implicate them in any criminal activity. Unlike defendants in a criminal case, who have the right not to take the witness stand at all, a witness may be forced to testify, “by subpoena or other means,” but may exercise his or her Fifth Amendment right by refusing to answer certain questions (

Furthermore, in accordance with, the privilege against self-incrimination is a personal one. It applies to individual human beings only. A corporation cannot “plead the Fifth” in order to keep quiet. Secondly, it only applies in criminal cases. A witness cannot keep silent or withhold information in civil proceedings. This is similar to the Kastigar standard (Kastigar vs. U.S. 1972). In order for something to be incriminating, it must not just reveal criminal activity, but produce the real likelihood or risk of imprisonment. Likewise, something is compelled only if there is a risk of imprisonment for refusal to testify or produce documents.

Fifth Amendment Due Process

Due process is a difficult thing to define. Of all the documents that make up the ancestry of the Constitution, one of the oldest is the Magna Carta, created in 1215 in England. According to, the Magna Carta, due process is referred to as “law of the land” and “legal judgment of peers.” Some state constitutions continue to use these phrases. The reference to due process in the Fifth Amendment applies only to the federal government and its courts and agencies. Due process, in the context of the United States, refers to how and why laws are enforced. It applies to all persons, citizens or aliens, as well as to corporations. In that, the “how” is procedural due process. A vagrancy law might be declared too vague if the definition of a vagrant is not detailed enough. A law must be clear, fair, and have a presumption of innocence to comply with procedural due process.

Even if an unreasonable law is passed and signed into law legally (procedural due process), substantive due process can make the law unconstitutional. The Roe v Wade abortion decision declared a Texas law in violation of due process and ruled that in the first trimester, it is unreasonable for a state to interfere with a woman’s right to an abortion; during the second trimester, it is reasonable for a state to regulate abortion in the interest of the health of mothers; and in the third trimester, the state has a reasonable interest in protecting the fetus.

According to Bulzomi, Martinez was questioned by Sergeant Chavez while in an emergency room, suffering from gunshot wounds inflicted by another police officer. Martinez was in severe pain and believed he was about to die when he admitted using heroin and stealing a police officer’s gun. Chavez never advised Martinez of his Miranda rights. Martinez was never charged with any crime. Martinez later filed a Title 42, Section 1983, U.S. Code lawsuit against Chavez for violating his Fifth Amendment privilege against self-incrimination and substantive due process rights to be free from coercive questioning. The district court and the U.S. Circuit Court of Appeals for the Ninth Circuit held that Chavez was not entitled to qualified immunity because he obtained the statements coercively. The fact that the government never tried to use the statements in a criminal trial, was irrelevant to these courts. The Supreme Court reversed this rule.

The Court did not resolve the question of whether or not Chavez’s questioning violated Martinez’s substantive due process rights. That issue was remanded to the Ninth Circuit for additional proceedings. In an opinion dated July 30, 2003, the Ninth Circuit ruled that Chavez’s coercive interrogation of Martinez violated his clearly established due process rights.

Fifth Amendment Public Property Taken for Public Use

Prior to the adoption of the Fourteenth Amendment, the power of eminent domain of state governments was unrestrained by any federal authority. Compensation provision of the Fifth Amendment did not apply to the states, 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. 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 provisions 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 were to deprive him of his property without compensation. 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.

At an earlier time, the factor of judicial review would have been vastly more important than it is now, in as much 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. 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 applications of the police power. Effectuation of these matter 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. Traditionally, eminent domain has been utilized to facilitate transportation, the supplying of water, and the like, 184 but the use of the power to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent. (no cites).

In conclusion, the Fifth Amendment covers a huge area of our rights. The U.S. Constitutional Amendments have been founded by our founding fathers with the hopes that everyone would know their rights and privileges. In today’s society, everything has to be politically correct now. It is really getting harder to know what the politically correct terms are.