Friends and neighbors,  

Imagine that you are accused of a crime, and it falls to you to prove that you did not commit it. Or if your city government seized your home and property without paying you, all so that a new road could be built. Thankfully, our Constitution’s Fifth Amendment protects against such abuses.

Last week, I wrote about the Fourth Amendment and its protection of the right to be free from unreasonable searches and seizures by the government and the requirements for a warrant for searches and seizures. This week, I will discuss the Fifth Amendment’s guarantee of due process, private property rights, and certain criminal procedure protections.

The Fifth Amendment reads:

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.

Grand Jury

Unlike almost all other protections in the Bill of Rights, the right to indictment by grand jury in the Fifth Amendment does not apply to state actions, only federal. 

Minnesota’s constitution does not require a grand jury indictment. In federal matters and states that do require a grand jury indictment, a grand jury determines probable cause to prosecute someone. A grand jury offers fewer protections for witnesses and fewer rules of evidence as well.

Double Jeopardy

Applying to state and federal offenses, the Fifth Amendment right to be free of double jeopardy means that a defendant may not be retried for the same offense. However, the general rule articulated by the Supreme Court in its 1933 case Blockburger v. United States, which is still good law today, is that two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not, even if the underlying facts are the same for both crimes. The broad rule applies upon the empaneling and swearing-in of a jury in a jury trial or when the first witness is sworn in for a bench trial. Double jeopardy does not apply to civil proceedings. 

Self-Incrimination

The right to be free from testifying against oneself is commonly referred to as “pleading the Fifth.” In our criminal justice system, we are all presumed innocent until proven guilty of a crime. Nowhere is this more evident than when a trial takes place. The government has the burden of proof to prove each element of a crime beyond a reasonable doubt. If there was a presumption of guilt, like in many countries, a defendant would always want to take the stand to prove his or her innocence. With the burden of proof on the government, a defendant is not required to take the witness stand.

The right to be free from self-incrimination, however, goes far beyond the testimony of a defendant on the stand at trial. The 1966 landmark case, Miranda v. Arizona, gave us what we still have today The Miranda warnings that apply when someone is in police custody and is subject to questioning or other acts that are likely to elicit an incriminating response, the police are required to inform that person that: 

1) You have the right to remain silent; 

2) If you do say anything, it can be used against you in a court of law;

3) You have the right to have a lawyer present during any questioning; and 

4) If you cannot afford a lawyer, one will be appointed for you if you so desire.  

Using these rights is not an admission of guilt. The government has the responsibility to prove you guilty. 

Due Process Clause

Tracing its roots to the Magna Carta, the Due Process Clause in the Fifth Amendment provides that a person’s life, liberty, or personal property cannot be taken without fair processes or procedures, which include a neutral decision-maker and an opportunity to present objections to the proposed action. A deprivation of liberty includes losing significant freedom or action or denying a freedom provided by the Constitution or statute. Property, for the purposes of the Due Process Clause, not only includes personal property or land, but also includes welfare benefits or continued public employment. 

Taking Clause

The final clause of the Fifth Amendment prohibits the government from taking private property for public use without just compensation. In 2005, the Supreme Court held in the now infamous case, Kelo v. City of New London, that the “public use” element of the clause can even include taking private property to promote economic development of private actors. The outcry from this decision led to 47 state legislatures, including Minnesota, passing new laws or constitutional amendments to protect private property from being seized for a private use.

Next week, I will write about the Sixth Amendment, which details the additional trial rights that an accused person has in a criminal prosecution.

I enjoy hearing from you about our Constitution and the rights it affords us.  You need to know your rights to use them. There is no other country that has such a strong constitution. You can call me at 651-296-5655 or send me an email at sen.mary.kiffmeyer@senate.mn. Please also take time to talk with others about our timeless and incredibly valuable Constitution that is available to you and in use every day of your life. 

Sincerely,

Mary