Fifth Amendment | Summary, Rights, & Facts | Britannica

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

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Fifth Amendment | Wex | US Law | LII / Legal Information Institute

Overview

TheFifth Amendmentof theU.S. Constitution "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 offense 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."

The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Process Clause from the MagnaCarta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights:

While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has partiallyincorporatedthe Fifth Amendment to the states through the Due Process Clause of theFourteenth Amendment.The right to indictment by the grand jury has not been incorporated, while the right against double jeopardy, the right against self-incrimination, and the protection against arbitrary taking of private property without due compensation have all been incorporated into the states.

Grand juriesare a holdover from the early British common law dating back to the12th century.Deeply rooted in the Anglo-American tradition, the grand jury was originally intended to protect the accused from overly-zealous prosecutions by the English monarchy.In the early phases of the development of theU.S. Constitution, the Founding Fathers decided to retain the grand jury system as a protection against over-zealous prosecution by the central government.Although the Supreme Court inHurtado v. Californiain 1884 refused to incorporate the grand jury system into all of the states, most states have independently decided to retain a similar form of grand jury, and currently, all but two states (Connecticut and Pennsylvania) have the grand jury.

Congressional statutes outline the means by which a federal grand jury shall be impaneled. Ordinarily, the grand jurors are selected from the pool of prospective jurors who potentially could serve on a given day in any juror capacity. At commonlaw, a grand jury consists of between12 and 23 members. Because the grandjurywas derived from the commonlaw, courts use the commonlaw as a means of interpreting the Grand Jury Clause. While state legislatures may set the statutory number of grand jurors anywhere within the commonlaw requirement of 12 to 23, statutes setting the number outside of this range violate the Fifth Amendment. Federal law has set the federal grand jury number as falling between16 and 23.

A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct "fishing expeditions" or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may make a presentment, informing the court of their decision to indict or not indict the suspect.If they indict the suspect, it means they have decided that there is probable cause to believe that the charged crime has indeed been committed by the suspect.

The Double Jeopardy Clause aims to protect against the harassment of an individual through successive prosecutions of the same alleged act, to ensure the significance of an acquittal, and to prevent the state from putting the defendant through the emotional, psychological, physical, and financial troubles that would accompany multiple trials for the same alleged offense. Courts have interpreted the Double Jeopardy Clause as accomplishing these goals by providing the following three distinct rights: a guarantee that a defendant will not face a second prosecution after an acquittal, a guarantee that a defendant will not face a second prosecution after a conviction, and a guarantee that a defendant will not receive multiple punishments for the same offense. Courts, however, have not interpreted the Double Jeopardy Clause as either prohibiting the state from seeking a review of a sentence or restricting a sentence's length on rehearing after a defendant's successful appeal.

Jeopardy refers to the danger of conviction. Thus, jeopardy does not attach unless a risk of the determination of guilt exists. If some event or circumstance prompts the trial court to declare a mistrial, jeopardy has not been attached if the mistrial only results in minimal delay and the government does not receive addedopportunityto strengthen its case.

The Fifth Amendment also protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may "plead the Fifth" and not answer if the witness believes answering the question may be self-incriminatory.

In the landmarkMiranda v. Arizona384 U.S. 436 (1966) ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights.Known asMirandarights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.

However, courts have since then slightly narrowed theMirandarights, holding that police interrogation or questioning that occurs prior to taking the suspect into custody does not fall within the Miranda requirements, and the police are not required to give Miranda warnings to the suspects prior to taking them into custody, and their silence in some instances can be deemed to be implicit admission of guilt.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violating the Fifth Amendment protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of theMirandarights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement.The Fifth Amendment right does not extend to an individual's voluntarily prepared business papers because the element of compulsion is lacking.Similarly, the right does not extend to potentially incriminating evidence derived from obligatory reports or tax returns.

To be self-incriminating, the compelled answers must pose a substantial and real, and not merely a trifling or imaginary hazard of criminal prosecution.

After Congress passed the Crime Control and Safe Streets Act, some felt that the statute by implication overruled the requirements ofMiranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt thatMirandarepresented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. InDickerson v.UnitedStates,the U.S. Supreme Court rejectedthis argumentand held that the Warren Court had directly derivedMirandafrom the Fifth Amendment.

The guarantee ofdue processfor all persons requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive any person of life, liberty, or property.Dueprocess essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding. While the Fifth Amendment only applies to the federal government, the identical text in the Fourteenth Amendment explicitly applies this due process requirement to the states as well.

Courts have come to recognize that two aspects of due process exist: procedural due process andsubstantive due process.Theproceduraldue processaims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensuring that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the20thcentury as protecting those substantive rights so fundamental as to be "implicit in the concept of ordered liberty."

While the federal government has a constitutional right to "take" private property for public use, the Fifth Amendment's Just Compensation Clause requires the government to pay just compensation, interpreted as market value, to the owner of the property, valued at the time of the takings. The U.S. Supreme Court has defined fair market value as the most probable price that a willing butunpressuredbuyer, fully knowledgeable of both the property's good and bad attributes, would pay. The government does not have to pay a property owner's attorney's feesunless a statute so provides.

In2005, inKelov.Cityof New London, the U.S. Supreme Court rendered a controversial opinion in which they held that a city could constitutionally seize private property for private commercial development, where the redevelopment would economically benefit an area that was sufficiently distressed to justify a program of economic rejuvenation. However, after theKelodecision, some state legislatures passed statutory amendments to counteractKeloand expand protection for the condemned.

Nevertheless,Keloremains a valid law under the federal context, and its broad interpretation of "public use" still holds true under the federal protection for the Fifth Amendment right to just compensation.

U.S. Code:18 U.S.C., Part I- Crimes

[Last updated in December of 2022 by the Wex Definitions Team]

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5th Amendment – Definition, Examples, Cases, Processes – Legal Dictionary

The term 5th Amendment refers to the more well-known aspect of the Fifth Amendment to the U.S. Constitution, which states that no one can be forced to testify against himself in court. The 5th Amendment also ensures that no one can be tried a second time for a crime of which they were already acquitted. This is referred to as double jeopardy. To explore this concept, consider the following 5th Amendment definition.

Noun

Origin

1791 American Constitution

The 5th Amendment is the amendment to the Constitution that protects people from being forced to testify against themselves. On legal television shows, a character may say I plead the fifth! This means that he is invoking his right under the Fifth Amendment to not be forced to say anything on the stand that could incriminate him.

Unfortunately, while it is a persons right to plead the fifth, many believe that someone who pleads the 5th may, in fact, be guilty. Their opinion is that, if he has nothing to hide, why wouldnt he just testify and clear his name? Why would he make it harder for the attorneys to prove their case unless he had something he didnt want them to know.

The 5th Amendment also protects people from something called double jeopardy. Double jeopardy is the process by which a person who was accused of a crime, and found innocent, would then be charged with that same crime again. The 5th Amendment prevents this from happening. Once a person is found innocent by a jury of his peers, even if new evidence is raised after the fact that proves he is actually guilty, he cannot be tried again for that same crime.

The Fifth Amendment right to counsel provides that someone who is being interrogated by police has the right to have an attorney present during the process. This goes hand-in-hand with someone being read his Miranda rights (If you do not have an attorney, one will be provided for you.). In fact, the Fifth Amendment also requires that someone who is being arrested be read his Miranda rights (More on that later).

The right to counsel section of the Fifth Amendment has been invaluable to those who have been charged with a crime. Entire cases have been thrown out when defendants lawyers have shown that their clients werent read their Miranda rights upon being arrested.

For example, the 5th Amendment protects a defendant who provides police with information during an interrogation, which happened after not being read his Miranda rights. In such a case, all of the information he gave to the police can be considered inadmissible and thrown out even if he confessed to the crime.

This is why the right to counsel is so important. Without a good lawyer by his side, a defendant might not even know that certain evidence may be inadmissible, which is crucial to whether his case proceeds or gets thrown out.

There is an equal protection clause in the 5th and 14th Amendments that protects U.S. citizens right to life, liberty and property without interference from the government. For example, the 5th Amendment states:

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 offense 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.

This section covers three equal protection clause rights in particular:

On the other hand, the 14th Amendment says that all persons born in the U.S., or provided with U.S. citizenship, are to be considered U.S. citizens, and no one can make a law that deprives a person of his right to life, liberty and property without due process of law. Due process of law is the entitlement that all U.S. citizens have to be treated fairly in the judicial system. Fair treatment includes, for instance, the right to a trial by jury upon being accused of a crime.

Both amendments are similarly worded with regard to their treatment of the equal protection clause. The main difference between them is that the 14th Amendment is more specific with regard to the inclusion of due process. With the 5th Amendment, due process takes place within the court system. With the 14th Amendment, however, due process is a natural right that protects American citizens from government interference with their ability to live their lives, unless what theyre doing is illegal.

For example, the 14th Amendment further protects a persons right to freedom of speech under the Bill of Rights to the Constitution. Therefore, while a protestor may anger a lot of people by burning the American flag, he has the right to do so under the 14th Amendment. What he is doing is not illegal, and therefore the government cannot interfere.

An example of the 5th Amendment at work can be found in the case that started it all when it comes to Miranda rights: Miranda v. Arizona. In 1966, Ernesto Miranda was arrested in Phoenix, Arizona on evidence that supposedly proved he was involved in a crime involving kidnapping and rape. After an interrogation that dragged on for hours, Miranda confessed to the charges. He also signed a statement acknowledging that he was voluntarily making the confession.

At no point before or during the interrogation was Miranda made aware of the fact that he had the right to have counsel present during the interrogation. He was also unaware of the fact that he had the right to remain silent, and he did not know that the statements he was making could be used against him during his trial. Upon learning this, he objected to the usage of his written confession at trial. He argued that because he was unaware of his rights under the 5th Amendment, his confession must be thrown out as involuntary.

Mirandas objection was overruled, and he was convicted of both crimes and sentenced to 20-30 years in prison. His written confession played a major role in his conviction. Miranda appealed his conviction, once again citing the involuntarily-made confession. The Arizona Supreme Court denied his appeal.

In June 1966, Miranda brought his case to the U.S. Supreme Court. The Court then had to decide whether the protections afforded to U.S. citizens under the 5th Amendment could be extended to cover police interrogations as well. The Court ruled in Mirandas favor, 5 4. Specifically, the Court held that:

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from 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, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendments privilege against self-incrimination.

The Court also included more detailed criteria to support this argument, including:

The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating, and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

And

The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system, and guarantees to the individual the right to remain silent unless he chooses to speak in the unfettered exercise of his own will, during a period of custodial interrogation.

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5th Amendment - Definition, Examples, Cases, Processes - Legal Dictionary

Double Jeopardy Clause – Wikipedia

U.S. constitutional law preventing repeated punishment for the same crime

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."[1] The four essential protections included are prohibitions against, for the same offense:

Jeopardy attaches in jury trial when the jury is empaneled and sworn in, in a bench trial when the court begins to hear evidence after the first witness is sworn in, or when a court accepts a defendant's plea unconditionally.[2] Jeopardy does not attach in a retrial of a conviction that was reversed on appeal on procedural grounds (as opposed to evidentiary insufficiency grounds), in a retrial for which "manifest necessity" has been shown following a mistrial, and in the seating of another grand jury if the prior one refuses to return an indictment.

In United States v. Felix, the U.S. Supreme Court ruled: "a[n]...offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes."[3][4][5]

Sometimes the same conduct may violate different statutes. If all elements of a lesser offense are relied on to prove a greater offense, the two crimes are the "same offense" for double jeopardy purposes, and the doctrine will bar the second prosecution. This ruling in Felix distinguished between the test in Blockburger and the ruling in Grady v. Corbin regarding the "same conduct" vs "same offense" test, which was later overruled and completely reverted back to Blockburger in United States v. Dixon. In Blockburger v. United States, the Supreme Court held 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 an additional fact which the other does not".[6] The test was applied in Brown v. Ohio, where the defendant had first been convicted of operating an automobile without the owner's consent, and later of stealing the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.[7]

In other cases, the same conduct may constitute multiple offenses under the same statute, for instance where one robs many individuals at the same time. There is no explicit bar to separate prosecutions for different offenses arising under the same "criminal transaction", but it is not permissible for the prosecution to re-litigate facts already determined by a jury. In Ashe v. Swenson, the defendant was accused of robbing seven poker players during a game. John Ashe was first tried for, and acquitted of, robbing only one of the players; the defense did not contest that a robbery actually took place. The state then tried the defendant for robbing the second player; stronger identification evidence led to a conviction. The Supreme Court, however, overturned the conviction. It was held that in the first trial, since the defense had not presented any evidence that there was no robbery, the jury's acquittal had to be based on the conclusion that the defendant's alibi was valid. Since one jury had held that the defendant was not present at the crime scene, the State could not re-litigate the issue.[8]

Once acquitted, a defendant may not be retried for the same offense: "A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense."[9] Acquittal by directed verdict is also final and cannot be appealed by the prosecution.[10] An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution.[11] A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, the judge's determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated. Although a judge may overrule a guilty verdict by a jury, a judge does not have the same power to overrule a not guilty verdict.

More specifically, as stated in Ashe, "...when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit."[12] Res judicata is a term of general application. Underneath that conceptual umbrella is the concept of collateral estoppel. As applied to double jeopardy, the court will use collateral estoppel as its basis for forming an opinion[citation needed].

Every charge has specific facts that must be proven beyond reasonable doubt to secure a conviction. And it is not unusual for a prosecutor to charge a person with "lesser included offenses". An oft-mentioned combination is first- and second-degree murder, with second-degree murder being the lesser offense. A person convicted on the lesser charge can never again be tried on the greater charge. If the conviction on the lesser charge is overturned, the greater charge does not then come back into play.

The Supreme Court ruled as such in Green v. United States, establishing the doctrine of "implied acquittal". Everett Green had been tried on charges of arson and first and second degree murder in the U.S. District Court for the District of Columbia. He was convicted on arson and the lesser offense of second degree murder. The verdict was silent on the greater offense. His conviction was overturned due to the appellate court deciding there wasn't enough evidence, remanding for a new trial. At the second trial, he was tried again with arson, first and second degree murder, convicted on the greater offense and sentenced to death.[13]

He appealed, claiming the second trial should not have included the greater offense under the Double Jeopardy Clause. The D.C. Circuit Court rejected the claim. The Supreme Court of the United States overruled, stating that Green was acquitted of first degree murder and, under the Fifth Amendment, could not be retried on that charge.

At Green's first trial, the jury was authorized to find him guilty of either first degree murder (killing while perpetrating a felony) or, alternatively, of second degree murder (killing with malice aforethought). The jury found him guilty of second degree murder, but, on his appeal, that conviction was reversed and the case remanded for a new trial. At this new trial, Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal. For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.[14]

That the jury did not explicitly return an acquittal on first degree murder in its verdict is immaterial:

In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: "We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree."[15]

This case did, in effect, overrule a preceding per curiam decision, that of Brantley v. Georgia.[16] In that case, the lesser charge was voluntary manslaughter and the greater charge was murder. Brantley was convicted on the lesser charge, but was convicted on the greater charge at retrial after the conviction was overturned. He appealed, arguing the inclusion of the greater charge at retrial violated the Double Jeopardy Clause. The Supreme Court rejected that argument: "It was not a case of twice in jeopardy under any view of the Constitution of the United States."

The Supreme Court explicitly overruled Brantley in another, near-identical case, Price v. Georgia:

While the Brantley holding may have had some vitality at the time the Georgia courts rendered their decisions in this case, it is no longer a viable authority and must now be deemed to have been overruled by subsequent decisions of this Court.[17]

The lesser and greater offenses in Price are identical to Brantley, with both being convicted on the lesser offense, and retried on the same charges as in the original trial after the conviction is overturned. Unlike Brantley, Price was convicted again on the lesser offense of voluntary manslaughter and given a similar sentence. Price appealed that conviction. The State of Georgia contended that since Price was not convicted on the greater offense at retrial, which was the case in Brantley, the second indictment constituted "harmless error". The Supreme Court rejected that idea:

The Double Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.[17]

Noting that the murder charge may have poisoned the jury against Price, the Supreme Court vacated the voluntary manslaughter conviction and remanded the case.

As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply, despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause because a mistrial ends a trial prematurely without a judgment of guilty or not, as was decided by the Supreme Court in United States v. Perez.[18] Cases involuntarily dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for substantially limited prosecutorial appeals from these orders. Also, a retrial after a conviction that had been set aside upon a motion for new trial, and that subsequently has been reversed on appeal or vacated in a collateral proceeding (such as habeas corpus) would not violate double jeopardy, for the judgment in the first trial had been invalidated. In all of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.

Prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding verdict for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict and so would not place the defendant at risk of another trial.

If a defendant appeals a conviction and is successful in having it overturned, the defendant may be subject to retrial.

Retrial is not possible if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in Burks v. United States, the Court held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient."[19]

If the earlier trial is a fraud, double jeopardy will not prohibit a new trial because the party acquitted has prevented themselves from being placed into jeopardy to begin with. One such case is the trial of Harry Aleman, who was tried and acquitted in 1977 in Cook County, Illinois for the September 1972 death of William Logan. Nearly 20 years later, two persons under Federal Witness Protection came forward to state that Aleman murdered Logan and another individual, and also bribed the trial judge to return an acquittal.[20]

Following on the new evidence, the Cook County State's Attorney in December 1993 filed new charges alleging Aleman killed William Logan, an identical allegation for which Aleman had been previously acquitted. He was convicted on that charge and sentenced to 100 to 300 years in prison. He appealed that conviction and the indictment, challenging that the second prosecution was barred under the Double Jeopardy Clause. The Seventh Circuit disagreed, stating first that "jeopardy denotes risk", citing Breed v. Jones:

In the constitutional sense, jeopardy describes the risk that is traditionally associated with criminal prosecution.[21]

And also citing Serfass:

Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy In particular, it has no significance in this context unless jeopardy has once attached and an accused has been subjected to the risk of conviction.[22]

The Seventh Circuit declared that, in rejecting the Double Jeopardy claim, even with the slight risk of conviction following the bribe, Aleman still nullified any legitimate risk:

Aleman may be correct that some risk of conviction still existed after Judge Wilson agreed to fix the case, but it cannot be said that the risk was the sort "traditionally associated" with an impartial criminal justice system.[23]

The Double Jeopardy Clause of the Fifth Amendment does not attach in a grand jury proceeding, or bar a grand jury from returning an indictment when a prior grand jury has refused to do so.[24]

A person who is convicted of one set of charges cannot in general be tried on additional charges related to the crime unless said additional charges cover new facts against which the person in question has not yet been acquitted or convicted. The test that determines whether this can occur is the Blockburger test.

An example of this are the charges of "conspiring to commit murder" and "murder". Both charges typically have facts distinct from each other. A person can be charged with "conspiring to commit murder" even if the murder never actually takes place if all facts necessary to support the charge can be demonstrated through evidence. Further, a person convicted or acquitted of murder can, additionally, be tried on conspiracy as well if it has been determined after the conviction or acquittal that a conspiracy did, in fact, take place.

Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried.[citation needed] Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in Perez. When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, the Supreme Court held that "only 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."[25]

The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed by the courts.[citation needed]

The prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.

In Arizona v. Rumsey, a judge had held a separate hearing after the jury trial to decide if the sentence should be death or life imprisonment, in which he decided that the circumstances of the case did not permit death to be imposed. On appeal, the judge's ruling was found to be erroneous. However, even though the decision to impose life instead of death was based on an erroneous interpretation of the law by the judge, the conclusion of life imprisonment in the original case constituted an acquittal of the death penalty and thus death could not be imposed upon a subsequent trial. Even though the acquittal of the death penalty was erroneous in that case, the acquittal must stand.[26]

Double jeopardy also does not apply if the later charge is civil rather than criminal in nature, which involves a different legal standard (crimes must be proven beyond a reasonable doubt, whereas civil wrongs need only be proven by preponderance of evidence or in some matters, clear and convincing evidence). Acquittal in a criminal case does not prevent the defendant from being the defendant in a civil suit relating to the same incident (though res judicata operates within the civil court system). For example, O. J. Simpson was acquitted of a double homicide in a California criminal prosecution, but lost a civil wrongful death claim brought over the same victims.[27]

Defendants happening to be on parole from an earlier offense at the time may also be the subject of a parole violation hearing, which is not considered to be a criminal trial. Since parolees are usually subject to restrictions not imposed on other citizens, evidence of actions that were not deemed to be criminal by the court may be re-considered by the parole board. This legal board could deem the same evidence to be proof of a parole violation. Most states' parole boards have looser rules of evidence than is found in the courts for example, hearsay that had been disallowed in court might be considered by a parole board. Finally, like civil trials parole violation hearings are also subject to a lower standard of proof so it is possible for a parolee to be punished by the parole board for criminal actions that they were acquitted of in court.

In the American military, courts-martial are subject to the same law of double jeopardy, since the Uniform Code of Military Justice has incorporated all of the protections of the U.S. Constitution. The non-criminal proceeding non-judicial punishment (or NJP) is considered to be akin to a civil case and is subject to lower standards than a court-martial, which is the same as a civilian court of law. NJP proceedings are commonly used to correct or punish minor breaches of military discipline. If a NJP proceeding fails to produce conclusive evidence, however, the commanding officer (or ranking official presiding over the NJP) is not allowed to prepare the same charge against the military member in question. In a court-martial, acquittal of the defendant means he is protected permanently from having those charges reinstated.

The most famous American court case invoking the claim of double jeopardy is probably the second murder trial in 1876 of Jack McCall, killer of Wild Bill Hickok. McCall was acquitted in his first trial, which Federal authorities later ruled to be illegal because it took place in an illegal town, Deadwood, then located in South Dakota Indian Territory. At the time, Federal law prohibited all except Native Americans from settling in the Indian Territory. McCall was retried in Federal Indian Territorial court, convicted, and hanged in 1877. He was the first person ever executed by Federal authorities in the Dakota Territory.

Double jeopardy also does not apply if the defendant was never tried from the start. Charges that were dropped or put on hold for any reason can always be reinstated in the futureif not barred by some statute of limitations.

Although the Fifth Amendment initially applied only to the federal government, the U.S. Supreme Court has ruled that the double jeopardy clause applies to the states as well through incorporation by the Fourteenth Amendment.[28]

The double jeopardy clause generally doesn't protect a person from being prosecuted by both a state government and the United States federal government for the same act, nor does it protect a person from being prosecuted by multiple states for the same act. Because United States law considers each of the State governments to be distinct from the federal government of the United States as a whole, with its own laws and court systems, these parallel prosecutions are considered to be different "offenses" under the double jeopardy clause, and the decisions of one government on what to prosecute or not prosecute can't be considered binding on the other. This is known as the "dual sovereignty" or "separate sovereigns" doctrine.

The earliest case at the Supreme Court of the United States to address the matter is Fox v. Ohio in 1847, in which the petitioner, Malinda Fox, was appealing a conviction of a state crime of passing a counterfeit silver dollar. The power to coin money is granted exclusively to Congress, and it was argued that Congress's power precludes the power of any State from prosecuting any crimes pertaining to the money, an argument the Supreme Court rejected in upholding Fox's conviction.[29]

A case that followed on Fox is United States v. Cruikshank, in which the Supreme Court stated that the government of the United States is a separate sovereign from any State:

This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.[30]

In 1920 the United States was fresh into the Prohibition Era. In one prosecution that occurred in Washington state, a defendant named Lanza was charged under a Washington statute and simultaneously under a United States statute, with the federal indictment stating several facts also stated in the Washington indictment. The Supreme Court addressed the question of the Federal government and a State government having separate prosecutions on the same facts in United States v. Lanza:

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.

It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government (Barron v. City of Baltimore, 7 Pet. 243), and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority. (EDITOR'S NOTE: the Barron precedent was superseded 35 years later by the 14th Amendment)[31]

This separation of sovereignty is seen with the separate Federal and State trials of convicted Oklahoma City bombing co-conspirator Terry Nichols. Terry Nichols and Timothy McVeigh were tried and convicted in Federal Court, with Nichols sentenced to life in prison with no possibility of parole, and McVeigh sentenced to death and later executed. While the building was owned by the Federal government, serving as branch locations for multiple Federal agencies, the Federal government had criminal jurisdiction only over 8 of the 168 confirmed deaths. With the express intent of seeing Nichols also sentenced to death, while contemplating the same for McVeigh if his death sentence was overturned on appeal, the State of Oklahoma filed charges against Terry Nichols.[32]

There may also be Federal laws that call other facts into question beyond the scope of any State law. A state may try a defendant for murder, after which the Federal government might try the same defendant for a Federal crime (perhaps a civil rights violation or a kidnapping) connected to the same act. The officers of the Los Angeles Police Department who were charged with assaulting Rodney King in 1991 were acquitted by a jury of the Superior Courts of California, but some were later convicted and sentenced in Federal court for violating King's civil rights. Similar legal processes were used for prosecuting racially motivated crimes in the Southern United States in the 1960s during the time of the Civil Rights Movement, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries that were thought to be racist or overly sympathetic with the accused in local courts.

Federal jurisdiction may apply because the defendant is a member of the armed forces or the victim(s) are armed forces members or dependents. U.S. Army Master Sergeant Timothy B. Hennis was acquitted on retrial in North Carolina for the 1985 murders of Kathryn Eastburn (31 y.o.) and her daughters, Kara (5 y.o.) and Erin (3 y.o.), stabbed to death in their home near Fort Bragg, North Carolina.[33] Two decades later, Hennis was recalled to active duty, court-martialed by the Army for the crime, convicted, and sentenced again to death.[34] Richard Dieter, executive director of the Death Penalty Information Center, observed of this case, "Certainly, no one [in the US] has been exonerated and then returned to death row for the same crime except Hennis."[35] Hennis challenged jurisdiction under the Double Jeopardy Clause on appeal to the United States Army Court of Criminal Appeals, which rejected the challenge.[36]

Furthermore, as ruled in Heath v. Alabama, the "separate sovereigns" rule allows two states to prosecute for the same criminal act.[37] For example, if a man stood in New York and shot and killed a man standing over the border in Connecticut, both New York and Connecticut could charge the shooter with murder.[38]

In order for a state to have jurisdiction to prosecute a criminal act, either the action directly resulting in consequences such as death or injury must occur while the perpetrator is in the state and/or the consequences must occur in the state. For example, if a man piloting an airplane took off from New York, flew to Connecticut and while flying over Connecticut committed a murder by dropping something from the aircraft, the only two sovereigns able to prosecute would be Connecticut and the federal government (due to the murder taking place from an aircraft) - New York would lack jurisdiction since no criminal act would have been perpetrated from there. But if the same man while still in New York remotely piloted a drone using the cellular network and used that vehicle to commit the murder in Connecticut, then three separate sovereigns could prosecute the murder (New York, Connecticut and the federal government due to the use of the unmanned aircraft as well as interstate telecommunications).

Only the states and tribal jurisdictions[39] are recognized as possessing a separate sovereignty, whereas territories of the United States,[40] the military and naval forces, and the capital city of Washington, D.C., are exclusively under Federal sovereignty. Acquittal in the court system of any of these entities would therefore preclude a re-trial (or a court-martial) in any court system under Federal jurisdiction.

The dual sovereignty nature of the Double Jeopardy Clause was reheard as part of Gamble v. United States, decided in June 2019. The Supreme Court upheld the nature of dual sovereignty between federal and state charges in a 72 decision.[41][42]

Though the Supreme Court of the United States has recognized the dual sovereignty doctrine as an exception to double jeopardy, the United States will not exercise its dual sovereignty power on everyone who becomes subject to it. As a self-imposed limitation on its dual sovereignty power, the United States Department of Justice has a policy called the Petite policy, named after Petite v. United States.[43] The formal name of the policy is "Dual and Successive Prosecution Policy"[44] and it "establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding."

Under this policy, the Department of Justice presumes that any prosecution at the State level for any fact applicable to any Federal charge vindicates any Federal interest in those facts, even if the outcome is an acquittal. As an example, a person who commits murder within the jurisdiction of a State is subject to that State's murder statute and the United States murder statute (18U.S.C.1111). The Federal government will defer to the State to prosecute under their statute. Whatever the outcome of the trial, acquittal or conviction, the Department of Justice will presume that prosecution to vindicate any Federal interest and will not initiate prosecution under the United States Code.

However that presumption can be overcome. The policy stipulates five criteria that may overcome that presumption (particularly for an acquittal at the State level):

The presumption may be overcome even when a conviction was achieved in the prior prosecution in the following circumstances:

The presumption also may be overcome, irrespective of the result in a prior state prosecution, in those rare cases where the following three conditions are met:

The existence of any of these criteria is to be determined by an Assistant Attorney General of the United States. If a prosecution is determined to have proceeded without authorization, the Federal government may and has requested the Court vacate an indictment. Such a move is in line with the Courts vacating indictments wherein prosecutions were discovered to have violated Department of Justice policy. Indictments have also been vacated when the Federal government first represents to the Court the prosecution was authorized but later determines that authorization to have been mistaken.[45]

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Double Jeopardy Clause - Wikipedia

Twenty-fifth Amendment to the United States Constitution

1967 amendment enumerating presidential succession

The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with presidential succession and disability.

It clarifies that the vice president becomes president if the president dies, resigns, or is removed from office, and establishes how a vacancy in the office of the vice president can be filled.It also provides for the temporary transfer of the president's powers and duties to the vice president, either on the initiative of the president alone or on the initiative of the vice president together with a majority of the president's cabinet. In either case, the vice president becomes acting president until the presidential powers and duties are returned to the president.

The amendment was submitted to the states on July 6, 1965, by the 89th Congress and was adopted on February 10, 1967, the day that the requisite number of states (38) had ratified it.[1]

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 1 clarifies that in the enumerated situations the vice president becomes president, instead of merely assuming the powers and duties of the presidency as acting president.[2] It operates automatically, without needing to be explicitly invoked.[3]:108

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 2 provides a mechanism for filling a vacancy in the vice presidency. Before the Twenty-fifth Amendment, a vice presidential vacancy continued until a new vice president took office at the start of the next presidential term; the vice presidency had become vacant several times due to death, resignation, or succession to the presidency, and these vacancies had often lasted several years.[2]

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 3 allows for the voluntary transfer of presidential authority to the vice president (for example, in anticipation of a medical procedure) by the president declaring in writing to be unable to discharge the powers and duties of the presidency. The vice president then assumes those powers and duties as acting president;[note 1] the vice president does not become president and the president remains in office, although without authority. The president regains those powers and duties upon declaring, in writing, to be again able to discharge them.[3]:112-3

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department[note 2][7] or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.[8]

Section 4 addresses the case of a president who is unable to discharge the powers and duties of the presidency but cannot, or does not, execute the voluntary declaration contemplated by Section3.[3]:117 It allows the vice president, together with a "majority of either the principal officers of the executive departments or of such other body as Congress may by law provide",[note 3] to issue a written declaration that the president is unable to discharge his duties. Immediately upon such a declaration being sent to Congress, the vice president becomes acting president[note 4]while (as with Section3) the president remains in office, albeit temporarily divested of authority.[9]

John Feerick, the principal drafter of the amendment,[3]:xii,xx[4]:5[10] writes that Congress deliberately left the terms unable and inability undefined "since cases of inability could take various forms not neatly fitting into [a rigid] definition... The debates surrounding the Twenty-fifth Amendment indicate that [those terms] are intended to cover all cases in which some condition or circumstance prevents the President from discharging his powers and duties..."[3]:112A survey of scholarship on the amendment found

no specific threshold medical or otherwise for the "inability" contemplated in Section4. The framers specifically rejected any definition of the term, prioritizing flexibility. Those implementing Section4 should focus on whether in an objective sense taking all of the circumstances into account the President is "unable to discharge the powers and duties" of the office. The amendment does not require that any particular type or amount of evidence be submitted to determine that the President is unable to perform his duties. While the framers did imagine that medical evidence would be helpful to the determination of whether the President is unable, neither medical expertise nor diagnosis is required for a determination of inability... To be sure, foremost in [the minds of the framers] was a physical or mental impairment. But the text of Section4 sets forth a flexible standard intentionally designed to apply to a wide variety of unforeseen emergencies.[4]:7,20

Among potential examples of such unforeseen emergencies, legal scholars have listed kidnapping of the president and "political emergencies" such as impeachment.Traits such as unpopularity, incompetence, impeachable conduct, poor judgment, or laziness might not in and of themselves constitute inability, but should such traits "rise to a level where they prevented the President from carrying out his or her constitutional duties, they still might constitute an inability, even in the absence of a formal medical diagnosis." In addition, a president who already manifested disabling traits at the time he or she was elected is not thereby immunized from a declaration of inability.[4]:21n63,22n67

The "principal officers of the executive departments" are the fifteen Cabinet members enumerated in the United States Code at 5U.S.C.101:[11][12]

Acting secretaries can participate in issuing the declaration.[3]:117-8[4]:13

If the president subsequently issues a declaration claiming to be able, then a four-day period begins during which the vice president remains acting president.[3]:118-9[4]:38n137If by the end of this period the vice president and a majority of the "principal officers" have not issued a second declaration of the president's inability, then the president resumes his powers and duties; but if they do issue a second declaration within the four days, then the vice president remains acting president while Congress considers the matter. Then if within 21 days the Senate and the House determine, each by a two-thirds vote, that the president is unable, then the vice president continues as acting president; otherwise the president resumes his powers and duties.[note 5]

Section 4's requirement of a two-thirds vote of the House and a two-thirds vote of the Senate is more strict than the Constitution's requirement for impeachment and removal of the president for "high crimes and misdemeanors" a majority of the House followed by two-thirds of the Senate.[3]:120n[14][15][16]In addition, an impeached president retains his authority unless and until the Senate votes to remove him or her at the end of an impeachment trial; in contrast, should Congress be called upon to decide the question of the president's ability or inability under Section4, presidential authority remains in the hands of the vice president (as acting president) unless and until the question is resolved in the president's favor.[3]:11820

ArticleII, Section1, Clause6 of the Constitution reads:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President...

This provision is ambiguous as to whether, in the enumerated circumstances, the vice president becomes the president, or merely assumes the "powers and duties" of the presidency. It also fails to define what constitutes inability, or how questions concerning inability are to be resolved.[17] The Twenty-fifth Amendment addressed these deficiencies.[2] The ambiguities in ArticleII, Section1, Clause6 of the Constitution regarding death, resignation, removal, or disability of the president created difficulties several times:

The 1951 novel The Caine Mutiny and its 1954 film version influenced the drafters of the amendment. John D. Feerick told The Washington Post in 2018 that the film was a live depiction of the type of crisis that could arise "if a president ever faced questions about physical or mental inabilities but disagreed completely with the judgment", which was not dealt with in the Constitution. Lawmakers and lawyers drafting the amendment wanted no such "Article 184 situation" as depicted in the film, in which the Vice President of the U.S. or others could topple the President by merely saying that the President was "disabled".[25]

In 1963, Senator Kenneth Keating of New York proposed a Constitutional amendment which would have enabled Congress to enact legislation providing for how to determine when a president is unable to discharge the powers and duties of the presidency, rather than, as the Twenty-fifth Amendment does, having the Constitution so provide.[26]:345 This proposal was based upon a recommendation of the American Bar Association in 1960.[26]:27

The text of the proposal read:[26]:350

In case of the removal of the President from office or of his death or resignation, the said office shall devolve on the Vice President. In case of the inability of the President to discharge the powers and duties of the said office, the said powers and duties shall devolve on the Vice President, until the inability be removed. The Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then be President, or, in case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.

Senators raised concerns that the Congress could either abuse such authority,[26]:30 or neglect to enact any such legislation after the adoption of this proposal.[26]:3435 Tennessee senator Estes Kefauver, the Chairman of the Senate Judiciary Committee's Subcommittee on Constitutional Amendments, a long-time advocate for addressing the disability question, spearheaded the effort until he died in August 1963.[26]:28 Senator Keating was defeated in the 1964 election, but Senator Roman Hruska of Nebraska took up Keating's cause as a new member of the Subcommittee on Constitutional Amendments.[24]

By the 1960s, medical advances had made increasingly plausible that an injured or ill president might live a long time while incapacitated. The assassination of John F. Kennedy in 1963 underscored the need for a clear procedure for determining presidential disability,[27] particularly since the new president, Lyndon Johnson, had once suffered a heart attack[28] and with the office of vice president to remain vacant until the next term began on January 20, 1965 the next two people in the line of succession were the 71-year-old speaker of the House John McCormack[27][29] and the 86-year-old Senate president pro tempore Carl Hayden.[27][29] Senator Birch Bayh succeeded Kefauver as Chairman of the Subcommittee on Constitutional Amendments and set about advocating for a detailed amendment dealing with presidential disability.[27]

On January 6, 1965, Senator Birch Bayh proposed S.J. Res.1 in the Senate and Representative Emanuel Celler (Chairman of the House Judiciary Committee) proposed H.J. Res.1 in the House of Representatives. Their proposal specified the process by which a president could be declared "unable to discharge the powers and duties of his office", thereby making the vice president an acting president, and how the president could regain the powers of their office. Also, their proposal provided a way to fill a vacancy in the office of vice president before the next presidential election. This was as opposed to the KeatingKefauver proposal, which neither provided for filling a vacancy in the office of vice president prior to the next presidential election, nor provided a process for determining presidential disability. In 1964, the American Bar Association endorsed the type of proposal which Bayh and Celler advocated.[26]:348350 On January 28, 1965, President Johnson endorsed S.J. Res.1 in a statement to Congress.[24] Their proposal received bipartisan support.[5]:6

On February 19, the Senate passed the amendment, but the House passed a different version of the amendment on April13. On April22 it was returned to the Senate with revisions.[24] There were four areas of disagreement between the House and Senate versions:

On July 6, after a conference committee ironed out differences between the versions,[30] the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.[26]:354358

Nebraska was the first state to ratify, on July12, 1965, and ratification became complete when Nevada became the 38th state to ratify, on February10, 1967.[note 6]

When President Lyndon B. Johnson underwent planned surgery in 1965, he was unable to temporarily transfer power to Vice President Hubert H. Humphrey because ratification remained incomplete. On February23, 1967, at the White House ceremony certifying the ratification, Johnson said:

It was 180 years ago, in the closing days of the Constitutional Convention, that the Founding Fathers debated the question of Presidential disability. John Dickinson of Delaware asked this question: "What is the extent of the term 'disability' and who is to be the judge of it?" No one replied. It is hard to believe that until last week our Constitution provided no clear answer. Now, at last, the 25th amendment clarifies the crucial clause that provides for succession to the Presidency and for filling a Vice Presidential vacancy.[33]

On October 10, 1973, Vice President Spiro Agnew resigned; two days later President Richard Nixon nominated Representative Gerald Ford to replace Agnew as new vice president pursuant to Section2. Ford was confirmed by the Senate and the House on November27 and December6 respectively, and sworn in December6.[34]

On August 9, 1974 Nixon resigned and Ford became president under Section1; Ford is the only president to have been elected neither president nor vice president.[35]The office of vice president was thus again vacant, and on August20 President Ford nominated former New York governor Nelson Rockefeller.[3]:167169 Rockefeller was confirmed by the Senate and the House on December 10 and 19 respectively, and sworn in December 19.[3]:186187

Feerick writes that the Twenty-fifth Amendment helped pave the way for Nixon's resignation during the Watergate scandal. Nixon and Agnew were Republicans, and in the months immediately following Agnew's resignation, with the vice presidency empty, removal or resignation of Nixon would have transferred the presidential powers to House Speaker Carl Albert, a Democrat. But once Ford (a Republican) became vice president under Section 2, removal of Nixon became more palatable because it would, now, not result in a change in the party holding the presidency, and therefore "the momentum for exposing the truth about Nixon's involvement in Watergate increased."[3]:158

On December 22, 1978, President Jimmy Carter considered invoking Section3 in advance of hemorrhoid surgery.[36] Since then, presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and Barack Obama also considered invoking Section3 at various times without doing so.[37]

On July 12, 1985, President Ronald Reagan underwent a colonoscopy and was diagnosed with bowel cancer. He elected to have the lesion removed immediately,[38] and consulted with White House counsel Fred Fielding about whether to invoke Section3, and in particular about whether doing so would set an undesirable precedent. Fielding and White House Chief of Staff Donald Regan recommended that Reagan transfer power, and two letters were drafted: one specifically invoking Section3, the other mentioning only that Reagan was mindful of its provisions. On July 13, Reagan signed the second letter[39] before being placed under general anesthesia for a colectomy,[40] and Vice President George H. W. Bush was acting president from 11:28a.m. until 7:22p.m., when Reagan transmitted a letter declaring himself able to resume his duties.[41]

In the Fordham Law Review, commentator John Feerick asserted that although Reagan disclaimed any use of the Twenty-fifth Amendment in his letter (likely out of "fear of the reaction of the country and the world to a 'President' who admitted to being disabled, and concern ... [over] set[ting] a harmful precedent"), he followed the process set forth in Section3. Furthermore, Feerick noted that "no constitutional provision except the Twenty-Fifth Amendment would have allowed" him to designate the vice president as acting president. Reagan later stated in a memoir that he had, in fact, invoked the Twenty-fifth Amendment.[42]

On June 29, 2002, President George W. Bush explicitly invoked Section3 in temporarily transferring his powers to Vice President Dick Cheney before undergoing a colonoscopy, which began at 7:09a.m. Bush awoke about forty minutes later, but did not resume his presidential powers until 9:24a.m. to ensure any aftereffects had cleared.[39][43] According to his staff, Acting President Cheney held his regular national security and homeland security meetings with aides at the White House, but made no appearances and took no recorded actions while being acting president.[43]

In the view of commentator Adam Gustafson, this confident application of Section3 "rectified" President Reagan's "ambivalent invocation" and provided an example of a "smooth and temporary transition" under Section3 that paved the way for future applications. Together with the 2007 invocation, it established the reasonableness of invocation for relatively minor inabilities, promoting continuity in the Executive Branch.[44]

On July 21, 2007, Bush again invoked Section3 before another colonoscopy. Cheney was acting president from 7:16a.m. until 9:21a.m.[39] During that time, Vice President Cheney (as acting president) remained at home.[44] This 2007 invocation and the 2002 invocation received relatively little attention in the press overall.[44]

On November 19, 2021, President Joe Biden temporarily transferred his powers and duties to Vice President Kamala Harris before undergoing a colonoscopy, making her acting president from 10:10 a.m. until 11:35 a.m.[45][46] Harris is the first woman to hold the powers and duties of the U.S. presidency.[47][48]

Section 4 has never been invoked, though on several occasions its use was considered.

Following the attempted assassination of Ronald Reagan on March30, 1981, Vice President George H. W. Bush did not assume the presidential powers and duties as acting president. Reagan had been rushed into surgery with no opportunity to invoke Section3; Bush did not invoke Section4 because he was on a plane at the time of the shooting, and Reagan was out of surgery by the time Bush landed in Washington.[49] In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section4 should have been invoked.[50] Physician to the President Daniel Ruge, who supervised Reagan's treatment immediately after the shooting, said he had erred by not having Reagan invoke Section3 because the president needed general anesthesia and was in an intensive care unit.[51]

From the end of the 1980s onwards, Reagan's political opponents alleged that he showed signs of dementia.[52] According to Reagan biographer Edmund Morris, staffers to White House chief of staff Howard Baker intended to use their first meeting with Reagan in 1987 to evaluate whether he was "losing his mental grip". However, Reagan "came in stimulated by the press of all these new people and performed splendidly".[53][54][55]

Reagan was diagnosed with Alzheimer's disease in 1994, five years after leaving office.[56] The president told neurosurgeon Daniel Ruge, according to Ruge in 1980, that he expected doctors to test his memory, and promised to resign if it deteriorated. After the 1994 diagnosis, Ruge said he never found any sign of Alzheimer's while talking to him almost every day from 1981 to 1985.[51]

After President Donald Trump dismissed FBI director James Comey in May 2017, acting FBI director Andrew McCabe claimed that Deputy Attorney General Rod Rosenstein held high-level discussions within the Justice Department about approaching Vice President Mike Pence and the Cabinet about possibly invoking Section4.[57] Miles Taylor, who anonymously authored "I Am Part of the Resistance Inside the Trump Administration" and A Warning, also wrote that he and other aides considered approaching Pence to invoke the Twenty-fifth Amendment.[58] A spokesperson later said that Rosenstein denied pursuing the Twenty-fifth Amendment, and Pence strongly denied considering invoking Section4.[58][59] On March 15, 2019, Senator Lindsey Graham stated the Senate Judiciary Committee would investigate the discussions and seek related documents.[60]

After the storming of the United States Capitol on January 6, 2021, President Trump was accused of having incited the incident,[61][62][63] leading to several calls for Section4 to be invoked. Proponents included Representatives Ted Lieu and Charlie Crist, former Defense Secretary William Cohen, and the National Association of Manufacturers (which asked Vice President Pence to "seriously consider" invoking the amendment).[64] By evening, some of Trump's Cabinet members were also reportedly considering invoking Section4.[65] In a New York magazine article, law professor Paul Campos also supported using Section4 "immediately" and "for the good of the nation."[66] On January 7, incoming Senate majority leader Chuck Schumer and Speaker of the House of Representatives Nancy Pelosi also called for Section4 to be invoked.[67][68]

The following states have not ratified:

See the article here:

Twenty-fifth Amendment to the United States Constitution

CBIC notifies Central Goods And Services Tax (Fifth Amendment) Rules, 2022 In Accordance With 48th GST… – Live Law – Indian Legal News

CBIC notifies Central Goods And Services Tax (Fifth Amendment) Rules, 2022 In Accordance With 48th GST...  Live Law - Indian Legal News

Continued here:

CBIC notifies Central Goods And Services Tax (Fifth Amendment) Rules, 2022 In Accordance With 48th GST... - Live Law - Indian Legal News

Why Did Trump Plead The Fifth Amendment?What We Do Know … – Newsweek

Donald Trump hasn't had the easiest month, with both the FBI search of his Mar-a-Lago residence and a New York deposition to contend with.

The hearing in New York centers on Trump's tax affairs and valuations of Trump organization assets.

Reports of the hearing said that Trump pleaded the Fifth amendment more than 440 times.

Trump, in a statement, said: "I once asked, 'If you're innocent, why are you taking the Fifth Amendment?' Now I know the answer to that question."

"When your family, your company and all the people in your orbit have become the targets of an unfounded, politically motivated Witch Hunt supported by lawyers, prosecutors and the Fake News Media, you have no choice," Trump said.

"Accordingly, under the advice of my counsel and for all of the above reasons, I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution," he added.

However, the circumstances of why Trump chose to use the Fifth are more complex than a simple "no comment" statement in a criminal matter.

To find out what it all means, Newsweek investigated Trump's past comments about the amendment, his potential reasoning for the apparent U-turn, and what it could mean for future hearings.

Trump is being rather coy in his statement, implying that in his past comments he merely questioned the reasons for taking the fifth. In fact, he openly criticized Hillary Clinton's aides during the 2016 presidential campaign for pleading the Fifth in the probe of her use of a private email server.

"So there are five people taking the Fifth Amendment, like you see on the mob, right? You see the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?" Trump asked the crowd rhetorically at an Iowa rally in September 2016.

Even though Trump made the admission that his previous comments may have been unwise, critics on social media were quick to point out the apparent hypocrisy.

There are a few things to unpack here. Firstly, Trump made a false equivocation comparing the Hillary Clinton email probe alongside "the mob." Although the investigation was led by the FBI, it examined whether criminal charges could be sought.

The comparison with the mob did imply, arguably, that Clinton was under criminal investigation.

On July 5, 2016, then-FBI director James Comey released a statement saying that the FBI "cannot find a case that would support bringing criminal charges on these facts" adding "we are expressing to Justice our view that no charges are appropriate in this case."

That being said, the comments on Twitter about Trump's use of the Fifth in New York do not make distinctions about the nature of the hearing either.

The civil case, led by New York District Attorney Letitia James, is investigating the valuation of Trump's assets, and whether the former president's business, the Trump Organization, misrepresented the stated valuations of some of its real estate assets for financial gain, including better terms on loans and insurance, as well as tax benefits.

Trump has strongly denied any wrongdoing.

Although the principle of the Fifth amendment remains the same whether in a criminal or civil case, the reasons for doing so are more nuanced, something that was not explained by Trump's social media critics.

To assess this in more detail, Newsweek spoke to a number of legal experts in constitutional law and criminal and civil litigation to find out more.

Professor Erwin Chemerinsky, Dean of Berkeley Law, told Newsweek: "A person has a right not to answer any questions, in a criminal or civil case, that might lead to statements that could lead to criminal liability.

"In a criminal case, no adverse inference can be drawn from invoking the privilege against self-incrimination," he added.

"In a civil case, an adverse inference can be drawn from invoking the privilege."

Adverse inference is a legal term, which effectively means that when plaintiffs try to present evidence on a point essential to their case, and cannot do so because the document has been destroyed by the defendant, the jury can infer that the evidence would have been adverse to the defendant, and adopt the plaintiff's reasonable interpretation of what the document would have said.

This was supported by Professor Katherine J Florey of UC Davis School of Law, who said that the consequences of taking the Fifth can have a more negative effect on the outcome of a civil case.

"In the criminal setting, juries are not permitted to draw an adverse inference from a defendant's decision to invoke the Fifth, but in some circumstances they may be permitted to do so in civil trials," Professor Florey said.

"It is also the case that, when a defendant in a civil trial relies on the Fifth, they will generally be barred from offering other evidence and/or testimony on the issue about which they refused to answer questions. The idea is to prevent defendants from selectively disclosing only information that helps them.

"In short, relying on the Fifth in a civil proceeding may have some negative effects in that proceeding, allowing an adverse inference and preventing the defendant from introducing some potentially helpful evidence.

"On the other hand, it may be the right choice for a defendant who has significant concerns that they may be criminally prosecuted."

So, while pleading the Fifth in the deposition could prevent Trump from providing other evidence at a later point, which could support his case, the prospect of criminal liability may be looming large.

Jimmy Gurule, a Professor of Law at the University of Notre Dame, added that anything Trump said during his deposition "could be used against him in a criminal trial on charges related to allegations that he unlawfully inflated the value of his real estate properties in NYC."

"If proven, Trump could be charged and convicted of tax fraud, as well as wire fraud and mail fraud," Professor Gurule said.

"Second, Trump fears that disclosing harmful information during his deposition could be used against him to prove the civil claims. For example, his deposition testimony could be used to prove that he 'knowingly' inflated the value of his real estate holdings to avoid paying taxes.

"Finally, Trump likely fears that if he testified untruthfully during his deposition, he could open himself up to perjury charges."

The possibility that his tax affairs may be exposed, or that Trump could end up saying something untruthful, may have given him enough reason to remain silent during the deposition.

Details of the hearing on Wednesday, August 10, 2022 haven't been revealed.

It's been reported that Trump pleaded the Fifth amendment more than 440 times, according to an NBC News source, who claimed to have knowledge of the deposition. Newsweek has not been able to independently verify this.

Trump's attorney Ron Feschetti said that the only question he answered was his name. A spokesman for Letitia James' office, confirmed the former president took the Fifth.

"Attorney General Letitia James took part in the deposition during which Mr. Trump invoked his Fifth Amendment right against self-incrimination," James' statement said.

"Attorney General James will pursue the facts and the law wherever they may lead. Our investigation continues."

Some commentators also speculated that James could expand her probe to bring criminal charges from a different Trump case, led by Manhattan District Attorney Alvin Bragg, who in the end decided not to indict the former president. While that remains a possibility, there is so far no evidence that she will do so.

Finally, as much as we can speculate on Trump's motivation for pleading the Fifth, that too is an unknown.

Trump has been openly hostile toward Attorney General James and believes the probe is politically motivated, that is part of a broader "witch hunt" targeting him and his allies.

Newsweek has contacted Donald Trump for comment.

Correction 08/12/22 10.53 a.m. ET: A spelling of Hillary Clinton's first name was corrected

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Why Did Trump Plead The Fifth Amendment?What We Do Know ... - Newsweek

Understanding the Fifth Amendment Right to Remain Silent

The Fifth Amendment right to remain silent is one of the most valuable rights we have. But there is a lot of confusion about what this right entails: when can you invoke the right to remain silent? Doesnt pleading the Fifth make you look guilty? Are there any consequences? Does this right apply to searches of my phone or documents?

In this article, we answer many of those questions.

Most of uslearned about theFifth Amendment in school but here is a refresher: it is one of the original ten amendments to the United States Constitution contained in the Bill of Rights. Heres the full text:

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.

As you can see, many important criminal procedure concepts come from this amendment. Theportion in bold is what we know today as the right to remain silent, 5th amendment privilege, right against self incrimination, and other names.

There is afascinating history to be told of the various abuses in colonial America that this amendment was designed toaddress but we are going to jump ahead to the 21st century and take a look at what role the amendment plays in our society today.

If you remember only onething from this post it should bethis: innocent people can (and often should!) invoke the their Fifth Amendment protection. The Framers included this amendment to protect both the guilty and the innocent. And, in a criminal case, the defendants refusal to testify cannot be used against him. The jury is specifically instructed that they are to draw no adverse conclusions from this fact.

The Supreme Court has recognized that there may be situations where a person is innocent, but may have rational reasons to invoke the 5th. Lets take a real-life example from the Supreme Court case of Ohio v. Reiner. In that case, a father was accused of injuring his baby son, resulting in the sons death. The fathers defense was that he did not injure the baby, and that the injuries were caused by the babysitter.

The babysitter maintained her innocence. The Supreme Court said that she was allowed to assert her 5th Amendment right. The Court made it clear that innocent people are entitled to protection of the right to remain silent. In fact, that right is designed to protect the innocent.

You might be asking: if she was innocent, why did she want to remain silent? Because facts that she would have to admit to if she was questionedlike the fact that she was alone with the baby on a number of occasionscould later be used as evidence against her if someone decided to prosecute her. She was with the baby in the time frame that the injuries happened. Under these circumstances, it would be reasonable for the babysitter to fear that her statements could be used against her and incriminate her.

This kind of situation also sometimes comes up in white collar cases. For example, an administrative assistant is called to testify. That assistant is asked about filling out certain paperwork for the supervisor, who is charged with creating fraudulent paperwork. The assistant may well not want to answer the questions, because they provide part of the evidence that could be used against him if prosecutors had concluded that the assistant was in on the scheme.

But keep in mind, you cannot use the right to remain silent just because you do not want to testify. The Supreme Court has referred to this as a danger of imaginary and unsubstantial character. So for example, if you are innocently standing at an intersection and you see a car crash, you cannot refuse to testify on Fifth Amendment grounds.

There might be. Many people fear that if they choose to remain silent, they will look like they have something to hide, or people may assume they are guilty. Unfortunately, this can be true in some cases.

This may also have other implications. If you take our administrative assistant example, the corporation he is working for may fire him if he takes the Fifth Amendment, based on a policy that employees must cooperate with investigators and legal proceedings.

As we discuss further in this article, refusing to testify in a civil case can have its own consequences too.

The consequences of exercising the right to remain silent are also different depending on whether you are a defendant or a witness. If you are defendant and choose to take the stand, you waive the right to remain silent at least on the subjects that you testified about on direct. For witnesses, there is the option to invoke the Fifth Amendment on some subjects and not on others.

Yes. Although the terms witness and criminal case naturally evoke visions of a criminal trial, the Supreme Court has long held that the Fifth Amendment applies outside a criminal courtroom.

It applies any time a person is forced to make a statement that could be used to incriminate him. A (non-exhaustive) list of situations where the Fifth Amendment applies outside a criminal trial includes: traffic stops, police interrogations, grand jury proceedings, arrests,civil depositions, civil trials, and testimony before the Unite States Congress. We examine some of these below.

Yes, you can claim your fifth amendment right in response to police questioning during a traffic stop.

Imagine you have justpulled onto the shoulderof the roadand thepolice lightsare flashing in your rear view mirror. After the officer receives your license and registration, what does he do next? Usually, the officer will ask some questionabout thereason for his traffic stop: Do you know why I pulled you over? Do you know how fast you were going? Did you know your license was suspended? Have you had anything to drink?

The officers questions are designed to elicit incriminating answers that he can use against you in traffic court. For example, if you admit you weredriving over the limit, you have confessed to speeding. The officer can testify that you admitted to exceeding the posted speed limit. Therefore, the Fifth Amendment gives you the right to refuse to answer questions like these during a traffic stop.

Yes, you can claim the Fifth Amendment following an arrest. In fact, law enforcement is required to remind you of this right by giving you the famous Miranda warnings.

In Miranda v. Arizona, the Supreme Court held that statementsmade duringquestioning of a person in police custody are inadmissible in court unless the person has first been warned by police thattheir statements could be used against them. The rationale for the Courts decision was that police custody is such an inherently coercive environment that the right to remain silent requiredan additional layer of legal protection to make it truly meaningful. Of course, whether someone is in police custody for Miranda purposes is not always obvious but that is a subject for another post.

In a typical case, police will take an arrested person they wish to question to an interview room at the station and may handcuff the person to a wall or desk. The person is clearly in custody. Before beginning the questioning, police will have the person sign a written Miranda waiver of the right to remain silent (and the right to have counsel present as well). The person has now waived his right to remain silent and his answers can be used against him.

It is usually a bad idea to waive your right to remain silent following arrest. If you wish to cooperate with police, you can do so much more effectively with the assistance of counsel.

Your case will not be dismissed. However, the prosecutors will not be allowed to use any statements you made while in custody during police questioning. This is called the exclusionary rule.

You can always refuse to talk to federal agents or the police. But remember, the 5th amendment right to remain silent is only triggered in custodial situations. If you are free to leave or stop the questioning at any time, that would not be considered a coercive setting for purposes of the right to remain silent. But, in these settings you have the right to decline to speak to agents, and there are many reasons why you should exercise that right.

Yes. The Supreme Court has held that forcing government employees to answer questions about potentially criminal conduct on pain of loss of employment constitutes compelled testimony under the Fifth Amendment. Because the Amendment only protects us against state action, the same is not true for employees in the private sector.

For a more lengthy treatment of this subject, you can read this blog post.

Yes, you can plead the fifth in a civil trial or deposition. But, whether you should or should not do so is often an issue that requires you to waive certain risks and benefits.

If you refuse to testify in a civil matter, there can be adverse consequences for the case. For example, lets say you are in a car accident and sue for negligence. But at trial, you take the 5th because you do not want to admit to drinking, which the defendants lawyer will definitely ask you about. The decision not to testify deprives you of the right to tell your side of the story, and if there are no other witnesses you can call, this may mean that you may not be able to win the case.

Also, if you invoke the Fifth Amendment during an earlier stage of proceedings, such as a pretrial hearing or in a discovery deposition, you will likely later be barred from testifying. And, in some cases, if you are the defendant in a civil case and you refuse to testify, the judge may instruct the jury that they can draw an adverse inference, which means to assume that the facts would not have been favorable to you had you testified.

Yes, you can claim the Fifth before a grand jury. Before we get into the details, recall that a grand jury is a group of 16 to 23 people impaneled to investigate cases and issue indictments. The prosecutor presents her witnesses, documents and other evidence to the grand jury and it decides if there is probable cause to indict.

So how does the grand jury implicate the Fifth Amendment? Because compliance with a grand jury subpoena is mandatory. Refusing to testify can result in a fine or imprisonment for contempt. In the language of the Amendment, you are being compelled to testify. So, the 5th Amendment right applies.

Of course, many grand jury witnesses have no need to plead the Fifth. The classic example is the man caught standing in the teller line during a bank robbery. Or, the example above with the witness to a car accident.

Other cases are not so clear. Lets say you are subpoenaed to testify about a work colleague suspected of fraud, as in the example of the administrative assistant. Might the prosecutor suspect you were in on it?

The best way to decide if you should plead the fifth is to consult an attorney with experience in grand jury matters. The attorney will review the facts, probably talk to the prosecutor, investigate the facts, and decide if you should take the Fifth.

Your lawyer may counsel you to take the Fifth even though you claim innocence. To repeat what has already been said in this post you can take the Fifth even if you are innocent, including before a grand jury. Even if you claim innocence, the government might still use your testimony against you if it can be combined with other evidence to show guilt.

Lets go back to our example of a work colleague suspected of fraud to see how this might happen. Even if you deny knowledge of his fraudulent activities, the prosecutor can question you before the grand jury about the extent of your relationship. If you admit to a close relationship, that admission could be a link in the chain of evidence used to convict you of fraud or perhaps acting as an accessory. You may therefore decline to answer questions about your relationship with your work colleague on Fifth Amendment grounds even if you claim ignorance of his alleged fraud.

Lets assume you do plead the Fifth, how would that work? If your attorney notifies the prosecutor of your intentions, your testimony may be called off. If the prosecutor does not withdraw the subpoena, you still have to appear. Federal grand juries usually sit at the courthouse and your attorney can accompany you there. However, your lawyer will not be able to enter the grand jury room itself. You should therefore be ready to assert your rights yourself with a simple prepared statement such as I decline to answer on Fifth Amendment grounds. You are also allowed to exit the grand jury room as many times as you like between questions to talk to your counsel.

In some cases, you can invoke the Fifth Amendment in response to a subpoena to produce documents. This is so because the act of production itself can indicate guilt. Here is how one federal Circuit Court of Appeals explained it:

Specifically, the act of production communicates at least four different statements. It testifies to the fact that: i) the documents responsive to a given subpoena exist, ii) they are in the possession or control of the subpoenaed party; iii) the documents provided in response to the subpoena are authentic; and iv) the responding party believes that the documents produced are those described in the subpoena.

Invoking the Fifth Amendment in response to a subpoena for documents is sometimes called the act of production privilege.

This does not mean that you can simply ignore the subpoena. You will quickly find yourself being called before a judge to explain why the subpoena went unanswered. You will have to notify the prosecutor that you are invoking your act of production privilege. An attorney experienced in investigations can be of great assistance in effectively exercising this right.

Yes. The Supreme Court has held that the Fifth Amendment right against self-incrimination is available to recipients of congressional subpoenas.

Your company does not have any Fifth Amendment rights. Therefore, if a subpoena is directed to a company rather than an individual, the company itself cannot plead the Fifth. Prosecutors are aware of this and will subpoena a company rather than an individual wherever possible to avoid Fifth Amendment litigation. However, you may still be able to claim an act of production privilege (see above) if you will be the one responsible for producing the documents on behalf of a company.

Yes, the right can be waived. We have already mentioned one obvious case of waiver in our discussion of Miranda rights above that is, where the privilege is explicitly waived in writing.

Other cases are not as obvious. If a witness attempts to plead the Fifth part way through his testimony on a particular subject, it may be too late. Why? Because he is considered to have waived the right by initially agreeing to testify about a particular subject. This is sometimes referred to as selective assertion of the Fifth Amendment and it is generally not allowed. The rationale for the rule is that allowing a witness to make selective assertions of the Fifth deprives his opponent of a fair right to cross examine him.

To guard against waiver, it is often advisable to make your Fifth Amendment claim as broad as reasonably possible.

If you resist a government subpoena to testify or produce documents on Fifth Amendment grounds, the government may respond by giving you immunity as to those statements or documents, meaning it will promise not to use them against you. Because the statements or documents may no longer be used against you in light of the immunity, you may no longer have a valid Fifth Amendment claim.

There are many details to consider where the government attempts to grant immunity, and a detailed discussion of them is well beyond the scope of this post. You should consult an attorney experienced in government investigations to represent you in negotiations with the government involving a grant of immunity.

As mentioned in passing above, a defendants decision not to testify at trial cannot be used against him. If the trial is before a jury, the judge will instruct the jury that they can draw no adverse inference from a defendants decision not to testify. Here is a standard jury instruction on this point, used by many federal judges:

The defendant chose not to testify in this case. Under our Constitution, a defendant has no obligation to testify or to present any evidence because it is the governments burden to prove a defendant guilty beyond a reasonable doubt. A defendant is never required to prove that he is innocent.

Therefore, you must not attach any significance to the fact that a given defendant did not testify. No adverse inference against a defendant may be drawn by you because he did not take the witness stand, and you may not consider it in any way in your deliberations in the jury room.

The prosecutor is also prohibited from making any comment during his closing argument about the defendants decision not to testify.

Link:

Understanding the Fifth Amendment Right to Remain Silent

Shootout between motorcyclists on I-4 leaves woman in critical condition, Sheriff Judd says – WFLA

POLK COUNTY, Fla. (WFLA) A woman is in extremely critical condition after deputies say she was shot while riding on the back of a motorcycle early Friday morning on Interstate 4 in Polk County.

According to Sheriff Grady Judd, just after midnight 38-year-old Ronald Donovan, a member of the Sin City Deciples Motorcycle Club, was driving eastbound on I-4. Donovan, his passenger, a 33-year-old woman, and two other motorcyclists were driving toward the Orlando area.

Judd said thats when two members of the Thug Riders Motorcycle Club passed by them, which didnt sit well with Donovan.

There was some skirmishing and some driving about 100 miles per hour, the sheriff said.

He said Donovan then shot and hit one of the Thug Riders motorcyclists, a 36-year-old man, who fired back toward Donovan.

According to Judd, the bullet struck Donovans passenger in the head just above the ear, causing her to fall off of the motorcycle. Medical experts say she is not expected to survive.

They took an 1888 old western shootout and brought it to 2021 last night, Judd said. You had a rush of testosterone and a rush of idiocy and it ended up with near death.

The sheriff said the injured Thug Riders motorcyclist drove to Champions Gate and stopped at Papa Johns to call 911. At the same time, other 911 calls came into the Polk County Sheriffs Office regarding the shooting on the interstate.

When deputies arrived at the scene, Judd said Donovan had two empty gun holsters, but no guns were found in the area. A motorcyclist was also seen fleeing from the area.

The sheriff also noted that when deputies tried to ask Donovan questions, he responded by saying I know my rights and invoked his Fifth Amendment right.

Donovan was arrested on scene and has been charged with the following:

According to Judd, at this time, the investigation shows that the Thug Riders victim was acting in self-defense when he returned fire.

A portion of I-4 was shut down for several hours as deputies and Florida Highway Patrol troopers searched for firearms and bullet casings over a half-mile area.

Since the shooting involved two separate motorcycle gangs, the sheriff gave the following warning to members of each side:

Let me warn you, retaliation will get you all locked up in prison for a very long time and thats a guarantee in Polk County, he said. Your stupidness has already gotten a 33-year-old beautiful young lady in a near-death situation and another man shot.

Sheriff Judd he expects to provide more details on the case on Monday.

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Shootout between motorcyclists on I-4 leaves woman in critical condition, Sheriff Judd says - WFLA

Strange texts and messages sent from victims phone take center stage at S.I. teacher slay trial – SILive.com

STATEN ISLAND, N.Y. Jessica Pobega said he was concerned about her best friend Jeanine Cammarata after the schoolteachers boyfriend told her he hadnt been able to reach her.

That was on April 1, 2019, and Pobega hadnt spoken with Jeanine herself in several days.

I was worried, so I tried to call her, Pobega testified Friday at the murder trial of Michael Cammarata, Jeanine Cammaratas estranged husband.

But her friend didnt answer her phone or respond to text messages, the witness testified.

So Pobega reached out on Facebook Messenger, even though she and Jeanine rarely communicated that way.

I asked her to call me to let me know she was OK, said Pobega.

The witness then tried calling her friend again.

Once more, there was no answer, but Pobega said she could see someone was texting her back on Jeanines phone.

That person wasnt Jeanine, prosecutors contend.

By that time, the 37-year-old New Brighton resident was already dead, prosecutors told jurors in their opening argument last week in state Supreme Court, St. George.

She had been killed late on March 30 by her spouse and his girlfriend, Ayisha Egea, near their Queens apartment, allege prosecutors.

Afterward, Michael Cammarata, 45, and Egea, 44, burned the victims corpse, Assistant District Attorneys Adam Silberlight and Timothy Richard said.

Cammarata was livid over divorce papers his spouse had served him a few days earlier, allege prosecutors.

The defense contends Egea was the killer.

BOYFRIENDS TESTIMONY

Following, on April 1, Michael Cammarata and Egea stuffed the victims charred remains in an Arden Heights storage facility, the same day Pobega received the text message from the victims phone, prosecutors maintain.

The content of the message was not explored, although the circumstances eerily echoed the prior testimony of the victims boyfriend.

He testified last week he received an unusual text from Jeanines phone on March 31 and a Facebook Messenger message from her account the next day.

The mans name is being withheld at prosecutors request for fear of reprisal.

The witness said he last saw the victim on the evening of March 30 when Jeanine dropped him off at home around 9 p.m. He said he and Jeanine lived together at his home, although she also maintained her New Brighton apartment.

Shortly thereafter, between 9:30 and 9:40 p.m., Jeanine texted him. She said she was going to pick up her two children from her husband at the 120th Precinct stationhouse in St. George, said the witness.

The boy and girl lived with Michael Cammarata and Egea in Queens.

Under cross-examination by defense lawyer Mario F. Gallucci, the witness testified Jeanine had never previously picked up her children at the 120th Precinct stationhouse.

According to evidence and testimony, Jeanine actually drove out to Queens and met her husband and Egea.

Jeanine did not return home that night, the witness testified, although he received an odd text from her late the next morning, he said.

Typically, theyd exchange brief one-line messages. However, this time the text was a paragraph long, said the witness. He said it referred to her reconciliation with Mike.

The witness said he received no other texts that day from Jeanines phone, and there was no response to his phone calls.

The next day, April 1, the witness said he tried all day to contact Jeanine via phone and texts, but to no avail.

However, sometime that day he said he got a weird message from Jeanines Facebook Messenger account.

It said she was OK, and shed talk to him when she could, said the witness.

I would never get a message from her from Facebook, he said.

When questioned by Gallucci, the man admitted to sending a number of texts to Jeanines phone on March 31, including a nasty one early in the morning.

Hey, where are you? I guess Im a jerk---, the text said. I guess youre playing family with Mike and the kids. Good luck in court and with whatever youre doing.

Several days earlier, Jeanine Cammarata had filed for divorce against her husband, prior witness testimony revealed.

Gallucci also dug into the mans criminal history, seeking to undermine his credibility.

The witness admitted to being convicted of disorderly conduct in three separate cases last year in Brooklyn. In two of those cases, the witness was initially charged with criminal contempt for disobeying an order of protection.

The witness also acknowledged he has a rape case currently pending on Staten Island and a misdemeanor assault and menacing case pending in Brooklyn.

On the advice of his lawyer, he invoked his Fifth Amendment right against self-incrimination when queried further about those cases.

The man said he did not receive any incentives from prosecutors to testify.

The trial resumes Tuesday before Justice Mario F. Mattei.

Only Michael Cammarata is on trial. Egea will be tried separately.

Link:

Strange texts and messages sent from victims phone take center stage at S.I. teacher slay trial - SILive.com

Soon to be blockbuster cases from the Supreme Court | TheHill – The Hill

The Supreme Court convenes today for the start of its October 2021 term, in person for the first time since March 2020, when the pandemic drove the justices to literally phone it in. This year, the court has some blockbuster cases, both on its docket and in the cert petition pipeline. Here are a few cases to put on your radar:

Dobbs v. Jackson Womens Health Organization

In 2019, the Supreme Court granted a property owner a victory in Knick v. Scott Township. In doing so, the court overruled a 1985 precedent called Williamson County v. Hamilton Bank, which held that property owners couldnt sue in federal court for a violation of the Takings Clause of the Fifth Amendment to the Constitution. The underlying issue in Knick was whether the owner of rural land in northern Pennsylvania could go to federal court when the town said she must allow strangers onto her property so they could search for putative colonial gravesites.

But the immediate issue at hand was when the court should correct its past mistakes. In Knick, the court reversed Williamson County, leading to a furious debate between the majority opinion and the dissenters over when the court should abandon stare decisis in order to overrule mistaken precedent. Why so furious? Because the court was anticipating the arrival of a giant elephant in the room. With more fanfare than any circus, that elephant has now arrived, and its name is Dobbs v. Jackson Womens Health Organization. Today, the Alabama Attorney General is demanding that the court overturn Roe v. Wade.

Glorified and vilified, Roe has been the touchstone for a half-centurys worth of debate over the meaning of constitutional jurisprudence and the impact of the courts decisions on societal norms and vice versa. The debate has been animated not only by the social revolution the case ushered but also by the uneasy admission by even the cases staunchest defenders that the constitutional rationale for former Justice Harry Blackmuns decision did not match its importance. But was it so weak that the doctrine of stare decisis should be abandoned in Dobbs? Or should the court find a new constitutional rationale for the case to preserve the sociological status quo? Expect rhetorical fireworks in the courtroom and around the nation on Dec. 1 when the court tees up the case for oral argument.

Austin v. Reagan National Advertising

The First Amendment to the United States Constitution says that Congress shall make no law abridging the freedom of speech, or of the press. After the Civil War, the First Amendment was applied to the states. In 1980, the Supreme Court found that laws affecting so-called commercial speech should be given more leeway. Thus, no law meant some laws are okay for commercial speech. However, in 2015, in a dispute over an Arizona towns ability to regulate signs for church services, the court held that signs commercial or otherwise could not be regulated based on their content.

In Austin v. Reagan National Advertising, the court will decide whether a regulation banning electronic signs, unless the sign is located next to the business it advertises, is a prohibited content-based sign code. In the Arizona case, Justice Clarence ThomasClarence ThomasWhy Latinos need Supreme Court reform ESPN removes Sage Steele from programming after controversial remarks Group asks California bar to investigate Trump adviser's role in Jan. 6 MORE agreed with the result but added in a concurrence that there is no philosophical or historical basis for asserting that commercial speech is of lower value than noncommercial speech. Austin gives the court an opportunity to reaffirm that any sign ordinance requiring an inquiry into the signs message is unconstitutional and that there is no basis for any First Amendment exception for commercial speech. As Pacific Legal Foundations friend of the court brief puts it, Although commercial speech has been treated differently and badly in some of this Courts rulings, modern First Amendment doctrine should place it on an equal footing with other protected speech.

American Hospital Association v. Becerra

Congress has a habit of passing vague laws, leaving it to federal agencies to fill in the blanks with rulemaking and statutory interpretations. In 1984, in Chevron v. Natural Resources Defense Council, the Supreme Court became fed up with the habit of some federal courts to substitute their policy preferences for those of the agencies under the guise of statutory interpretation. There, the court adopted the Chevron doctrine and said that if the statute isnt clear, the courts should defer to an agencys interpretation. That may have cured the problem of runaway courts, but it led to another: runaway federal agencies. Over the ensuing years, an increasing number of scholars have concluded that Chevron was either wrong or badly flawed in its execution.

The nominal issue in American Hospital Association v Becerra is whether the Federal Court of Appeals for the D.C. Circuit properly applied Chevron when reviewing the regulation of Medicare reimbursement rates for certain outpatient drugs. But the more fundamental question raised in briefs such as Pacific Legal Foundations is whether it is time to abandon the Chevron doctrine altogether. The argument is set for Nov. 30 and will be watched closely by those contemplating the future of administrative law. Perhaps just as significantly, many will be watching the argument intently for signs on how receptive the court may be to overturning other precedents such as Roe v. Wade that will be on the docket the following day in Dobbs.

Also in play are a host of cases waiting in line for court review. Among these cert petitions are a challenge to Harvards admissions practices that discriminate against Asian American applicants and various challenges to state eviction moratoria, vaccine mandates and other COVID-19 orders. Likewise, with the courts growing willingness to accept property rights cases, Pacific Legal Foundation attorneys soon will ask the court to take up cases from North Carolina and California where property owners were either denied the basic right to use their land without compensation or were heavily fined for the innocent and harmless use of their land.

The Supreme Court always surprises, delights and disappoints. For more on what to expect, watch The Consequential Cases in the Supreme Courts 2021-2022 Term Including New Cases Added After the Courts Long Conference, where attorneys Noel Francisco, Tom Goldstein, William Jay and Anastasia Boden held their own court on the upcoming term.

James Burling is vice president of legal affairs at Pacific Legal Foundation, a nonprofit legal organization that defends Americans individual liberty and constitutional rights.

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Soon to be blockbuster cases from the Supreme Court | TheHill - The Hill

A triple-murder suspects ex-girlfriend was supposed to testify today. Why didn’t she? – Norwich Bulletin

NEW LONDON - Testimony expected on Thursday from the former girlfriend of a Hartford man accused of killingthree members of a Griswold family was put on hold as an evidence suppression hearing for Sergio Correa is poised to enter a second week.

Attorney Christopher Duby, appointed by the Public Defenders Office in New London Superior Court to assist the former girlfriend, Tanisha Vicento, was granted a week-long continuance by Judge Hunchu Kwak without objection from prosecutors or Correas defense team.

Vicento was scheduled to be the second witness called by Public Defenders Joe Lopez and Corrie-Ann Mainville after they elicited testimony from Correas step-sister and co-defendant on Wednesday. The suppression hearing began on Monday.

Mainville asked that she and Lopez be notified as soon as possible if Vicento was contemplating exercising her Fifth Amendment right against self-incrimination before she takes the stand.

Vicento, who was a key state witness during Correas 2019 probable cause hearingis again to fill that role when her ex-boyfriends trial begins in November.

Vicento is expected to be questioned about a 2003 Mitsubishi Galant she co-owned with Correa when they lived at a Donald Street apartment in December 2017. That's the same month Kenneth, Janet and Matthew Lindquist were murdered in and outside their 70 Kenwood Drive home.

The defense is seeking to exclude the vehicle and its contents from being presented as trial evidence, citing a lack of probable cause and exigent circumstances before its seizure by state police detectives on Dec. 28, 2017.

Police said items from the vehicle were traced back to the Lindquists home and Correas stepsister told police she and her brother used the car to drive to and from the crime scene on Dec. 20, 2017.

Probation officials previously said Vicento voluntarily signed a release form allowing them to search the car, and police said she gave over the vehicle keys willingly shortly after. Lopez seems to be suggesting Vicento was intimidated into cooperating with law enforcement officials - a scenario prosecutors contest.

During the 2019 probable cause hearing, Vicento tearfully recounted Correa alluding that he and his sibling killed Janet and Kenneth Lindquist. She recalled Correa leaving their bed the night of the killings and being unable to reach him by phone.

Hours later, she said Correa was back with their car.

He showed me something in the truck, she said. Two long guns, which I told him to get rid of. He said he buried one and got rid of the other.

Correas sister, Ruth Correa, who is cooperating with the state in exchange for a 40-year sentence on three counts of felony murder, previously confessed to helping her brother murder Matthew Lindquist as part of a scheme to steal guns from Kenneth Lindquists gun safe.

Ruth Correa confessed her brother brutally bludgeoned Kenneth Lindquist with a bat and beat and strangled Janet Lindquist before the siblings set the home ablaze. The couples badly burned bodies were found in the fire rubble, both showing signs of head trauma.

Vicento said Sergio Correa warned her days after the murders to stay away from his sister because she was crazy, she testified.

He said he did the dad and she did the mom, Vicento said. I didnt understand until I watched the news about a big fire and people had died.

Vicento said the Mitsubishi Galant she shared with Sergio Correa had for weeks contained a small metal bat, machete and empty gas can. Ruth Correa previously testified Matthew Lindquist was struck with a machete before the siblings stabbed him multiple times and left his body in a wooded area near the Lindquist home. His body was not discovered for months.

Vicento, who sobbed frequently throughout her testimony, said she recalled seeing Ruth Correa wearing new pieces of jewelry after the murdersand noticed her friend had a purple laptop in her apartment. Ruth Correa testified the laptop was stolen from the Lindquist home, but on the stand denied stealing any jewelry.

Vicento told police during a May 11, 2018 interview that when she confronted Sergio Correa regarding his whereabouts on the night of the murders, he explained his sister snapped and things went bad, according to an arrest warrant.

During a subsequent interview days later, Vicento, who seemed to have a close relationship with Ruth Correa, told detectives she became fearful for her life and the lives of her children after the probation search.

She said Sergio Correa told her he and his sister killed two people and burned the house down, the warrant states.

Sergio Correa ischarged with murder with multiple victims, three counts of felony murder, home invasion, first-degree robbery, first-degree arson and second-degree arson.

Editor's note: Attorney Christopher Duby's name was incorrect in a previous version of this story.

John Penney can be reached at jpenney@norwichbulletin.com or at(860) 857-6965

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A triple-murder suspects ex-girlfriend was supposed to testify today. Why didn't she? - Norwich Bulletin

Can A Judge Overrule The Jury? – NewsPatrolling

Courtroom proceedings can be confusing for folks who are not well acquainted with legal affairs. One of the most common questions is whether the decision taken by the jury is final. People also want to know what could be their options if they feel that the jury decision is not consistent with the laws of the land. Such answers are a bit challenging to answer, as there are a number of factors involved. Here are some facts that can help get better clarity about whether a judge can overrule the jury verdict.

JNOV A judge overturning the jury decision is quite rare. However, it occurs from time to time. If the judge feels that the jurys decision is not backed by adequate evidence, they can overturn the Jury verdict. This is where JNOV (Judgment notwithstanding the Verdict) comes into the picture. In U.S. federal civil court cases, this reversal is referred to as renewed judgment as a matter of law. For criminal cases, the term used is judgment of acquittal. JNOV can also be used by a judge to amend the verdict instead of completely reversing it. JNOV is essentially a system of checks and balances to ensure that jury decisions are in line with existing laws.

Limited understanding of legal matters Most jury members have limited understanding of legal matters. In comparison, a judge has the requisite qualification and experience to better interpret evidence and arguments presented by the prosecutor and defendant. While respecting jury decision, a judge can make sure that the verdict is supported by adequate evidence and applicable laws.

Guilty and not guilty It is rare for a judge to overturn either guilty or not-guilty verdict given by the jury. However, exceptions can always be there. In case of guilty verdict, a judge can overrule it only if there is no proper evidence establishing the guilt. In case of not-guilty verdict, its extremely rare that a judge will change the decision. Thats because such an act will be in violation of the defendants basic rights, as expressed in Fifth Amendment and Sixth Amendment. However, there could be exceptions if theres clear evidence that establishes the guilt of the accused.

Biased jury decisions As jury comprises members from the community, it is possible that they may be influenced through misleading arguments of the prosecution. This is where the judge needs to keep a close watch. It is the judges responsibility to ensure that jury members are presented with facts and not conjectures or assumptions.

Last but not least, a judge can review compensation amount. A judge amending the jury decision is most common in cases where compensation is decided by the jury. It is possible that the jury may have awarded a much higher compensation than what was needed in the case. If the judge feels that the jury has acted based on emotional factors such as passion or revenge, they can change the compensation amount.

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Can A Judge Overrule The Jury? - NewsPatrolling

Opinion | The Supreme Court Has Gone Off the Rails – The New York Times

The Supreme Court has final authority to make difficult judgment calls articulating the powers of government and the limits and constraints upon them. To merit the public trust, these judgments must not appear simply as assertions of individual value choices by the justices or willy-nilly discard long-established court precedents that profoundly affect peoples lives. Nor should they actively undermine the ability of governments to advance public purposes as established by a fair democratic process.

As the court begins a new term, regrettably, its recent history suggests that it lacks a majority of justices with sufficient concern about the basic continuity and integrity of the law or the ability of government to function.

The evidence has been growing quietly in recent years and then, last summer, quite loudly, when the court decided to twiddle its thumbs while Texas enacted an abortion law that practically bans nearly all procedures while evading timely judicial review.

This distressing turn of events has a special irony for me personally. In the 1980s, along with three of the current justices (John Roberts, Samuel Alito and Clarence Thomas), I participated in the Reagan revolution in the law, which inspired and propelled the careers of three other current justices (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett).

The Reagan revolution pitted itself against activist judges who were seen as following personal whims by altering the law and creating rights not found in the Constitution. Through interpretive tools like textualism and originalism, the Reagan lawyers sought to make the law more predictable and steady as articulated by John Roberts, the job of justices was to call balls and strikes, and not to pitch or bat.

That revolution, however, has morphed into what it was meant to curtail, as the expanding right-wing majority on the Supreme Court has relied on an array of innovative constitutional rights to undermine traditional governmental actions while discarding longstanding precedents with which they disagree.

In the highest-profile case of the courts new term, Dobbs v. Jackson Womens Health, the conservative justices may be ready to repeal the constitutional right to abortion.

At the same time it seems ready to cast aside certain constitutional rights, the court today regularly gives sweeping new interpretations to other rights and invokes them to radically narrow certain government powers that were until quite recently uncontroversial, including, for example, powers related to public safety or our democratic process.

It may be ready to do just that in an upcoming firearms case in which a lower court upheld, in a manner largely consistent with other recent decisions, a New York State law that requires evidence of good cause for a person to obtain a license to carry a gun outside of the home. In the 2008 Heller case, the Supreme Court acknowledged that the Second Amendment right to bear arms does not allow a person to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Another potential blockbuster case it is not yet officially on the docket would consider a reversal of the courts precedent approving affirmative consideration of race as a factor in college admissions.

My concerns about what the Supreme Court might do now are fed by its actions in the recent past. Last term was marked by a number of radical departures from precedent and existing law to elevate certain constitutional rights of individuals in a way that can stop government at all levels in its tracks.

Perhaps most unexpected and disturbing were decisions elevating rights of religious assembly over local public-safety rules related to Covid-19 that limited the ability to gather. Yet throughout our history, in matters of public health, the powers of local government have usually been at their apex. That did not matter here nor did the fact that Chief Justice Roberts was among the dissenters.

Another decision that received less attention but was still shocking involved the Takings Clause of the Fifth Amendment, which says private property may not be taken for public use without just compensation. The decision struck down a California agriculture labor regulation that gave union organizers the right to come to specific areas of a growers property at limited times to speak with workers.

As Justice Stephen Breyers dissent made clear, rather than apply the courts longstanding regulatory takings test which balances several factors and would clearly have indicated that the law did not violate the Takings Clause the court simply applied a different test previously reserved for a very narrow set of obvious takings. In doing so it raised major new questions about the constitutionality of some government business regulation and oversight that require access to private property.

In June, the court also invalidated Philadelphias requirement that its foster-care services contractors be willing to certify same-sex couples as foster parents, on the ground that it violated the free exercise of religion rights of a contractor, Catholic Social Services. This result appears to violate a court precedent of over 30 years holding that religious believers, like everyone else, are bound by generally applicable neutral conduct requirements that are not aimed at any religious groups a sensible principle enunciated for the court by Justice Antonin Scalia in a 1990 case out of Oregon.

To invalidate Philadelphias requirement without striking down that precedent, Chief Justice Roberts engaged in what Justice Gorsuch (with two other conservative justices) called a statutory shell game. The court avoided the outrage that would have followed an outright precedent reversal but the effect is nearly the same: The idea that religious beliefs provide no exemption from neutral governmental policies appears all but dead.

The court also intervened for the second time to severely undermine the Voting Rights Act when it voted 6-3 to greatly narrow Section 2. That will make legal challenges to new electoral laws in some states far more difficult. As Justice Elena Kagan wrote in a dissent, the majority opinion mostly inhabits a law-free zone, leaving the statutes language almost totally behind and simply creates a set of extra-textual exceptions and considerations to sap the acts strength.

Finally, by a 6-3 vote, the court invalidated Californias requirement that charities in the state disclose certain information about the identity of their major donors. The court called it an unconstitutional burden of the First Amendment free association rights of those donors. But this sweeping invalidation, as Justice Sonia Sotomayors dissenting opinion makes clear, profoundly departed from many earlier cases that have required such First Amendment claimants to offer evidence that a disclosure would chill association or raise a risk of threats or intimidation. It is also a reversal from the courts nearly unanimous endorsement just a decade ago of the idea that disclosures of donor identity are critically important to the public interest in transparency.

In their general direction and thrust, these cases from the last term do not differ materially from the approaches that the courts most conservative justices have been pursuing for years. What is new is the courts frequency and brashness in achieving these radical outcomes and its willingness to do so too often without an honest explanation and acknowledgment of what is actually going on.

Perhaps the six-member conservative majority with Chief Justice Robertss sometimes moderating influence now apparently curtailed has come to this point out of loyalty to a proposition articulated by Ronald Reagan himself: Government is not the solution to our problems, government is the problem.

But they would do well to remember why the Reagan revolution in the law came about in the first place. It was motivated by resistance to judicial meddling, primarily by the Warren court of the 1950s and 60s, and it rested on the idea that judges are stewards of an existing body of law and not innovators charged with radically remaking it.

Failing to remember that will squander the public trust that is so essential to the courts historically unquestioned authority to say what the law is. Already this year, Americans approval of the court has plummeted.

It will also strengthen the calls for structural changes. Some proposals to overhaul the Supreme Court like the institution of term limits and a modest expansion of the bench would arguably be salutary.

But that is a debate best pursued on its own merits and not because an out-of-control court has lost touch with its mission and must be stopped from casting aside long-established precedents and radically altering our system of government in accord with policy preferences of individual justices.

Donald Ayer, a former U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general in the George H.W. Bush administration, is an adjunct professor at Georgetown Law.

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Opinion | The Supreme Court Has Gone Off the Rails - The New York Times

AgileThought : SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (Form 8-K) – Marketscreener.com

SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

This SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment"), dated as of September 30, 2021, is entered into by and among IT GLOBAL HOLDING LLC, a Delaware limited liability company ("IT Global"), 4TH SOURCE LLC a Delaware limited liability company ("4th Source"), AGILETHOUGHT, LLC, a Florida limited liability company ("AgileThought"), AN EXTEND, S.A. de C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico ("AN Extend"), AN EVOLUTION S. DE R.L. DE C.V., a sociedad de responsabilidad limitada de capital variable incorporated under the laws of Mexico("AN Evolution," and together with IT Global, 4th Source, AgileThought, and AN Extend, each a "Borrower" and collectively, the "Borrowers"), AN GLOBAL LLC, a Delaware limited liability company ("Intermediate Holdings"), AGILETHOUGHT, INC. (f/k/a AN GLOBAL INC.), a Delawarecorporation ("Ultimate Holdings" and together with Intermediate Holdings, the "Holdings Companies"), the Guarantors (as defined in the Credit Agreement defined below) listed on the signature pages hereto, the financial institutions party hereto as lenders (together with their respective successors and assigns, the "Lenders"), and MONROE CAPITAL MANAGEMENT ADVISORS, LLC, a Delaware limited liability company ("Monroe Capital"), as Administrative Agent for the Lenders (the "Administrative Agent").

RECITALS

WHEREAS, Borrowers, Holdings Companies, the Lenders party thereto, and the Administrative Agent are parties to that certain Amended and Restated Credit Agreement, dated as of July 18, 2019, as amended by that certain Waiver and First Amendment, dated as of January 30, 2020, that certain Waiver and Second Amendment, dated as of May 14, 2020, that certain Waiver and Third Amendment, dated as of February 2, 2021, that certain Fourth Amendment, dated as of April 30, 2021, that certain Fifth Amendment, dated as of June 24, 2021 and that certain Sixth Amendment, dated as of July 26, 2021 (as further amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement");

WHEREAS, the Borrowers and Holdings Companies now desire that the Administrative Agent and the Lenders agree to make certain amendments to the Credit Agreement; and

WHEREAS, the Administrative Agent and the Lenders have agreed to do so, but only on the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the matters set forth in the above Recitals and the covenants and provisions herein set forth, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

Section 1Amendments to Credit Agreement. Subject to the effectiveness of this Amendment, including, without limitation, the satisfaction of the conditions of effectiveness set forth in Section 3 below, on the Amendment No. 7 Effective Date (as defined below), the Credit Agreement is hereby amended as follows:

1.1Section 6.4.2 of the Credit Agreement is hereby amended and restated in its entirety as follows:

6.4.2 Term Loans. Borrowers shall repay the aggregate outstanding principal amount of the Term Loans (including, without limitation, the Existing Term Loans, the Closing Date Term Loans, and any Incremental Term Loans) (a) in consecutive quarterly installments equal to the Scheduled Term Loan Payment Amount on the last Business Day of each of March, June, September and December commencing on September 30, 2019 (other than for the four consecutive months ending April 30, 2021 through and including July 31, 2021 (the "Modified Amortization Period"), which shall amortize as set forth in clause (b)), (b) on October 15, 2021, an amortization payment (reflecting amortization payments that would otherwise have been due during the Modified Amortization Period) in the amount of $4,000,000 and (c) a final installment equal to the remaining outstanding principal balance of the Term Loans, payable on the Termination Date. Unless sooner paid in full, the outstanding principal balance of the Term Loans must be paid in full on the Termination Date.

Section 2Definitions. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to them in the Credit Agreement as amended hereby.

Section 3Conditions Precedent to Effectiveness of Amendment. This Amendment shall become effective upon the satisfaction of each of the following conditions (the date on which all such conditions precedent have been satisfied, the "Amendment No. 7 Effective Date"):

3.1Administrative Agent shall have received a copy of this Amendment signed by the Loan Parties, the Administrative Agent and the Required Lenders;

3.2Administrative Agent shall have received evidence of payment by the Borrowers of all accrued and unpaid fees, costs and expenses incurred prior to or on the Amendment No. 7 Effective Date, including all Attorney Costs of the Administrative Agent incurred prior to or on the Amendment No. 7 Effective Date; and

3.3All representations and warranties set forth in Section 4 hereof are true and correct.

Section 4Representations and Warranties. To induce the Administrative Agent and the Lenders to execute this Amendment, each Loan Party hereby represents and warrants to the Administrative Agent and the Lenders as follows:

4.1the execution, delivery and performance of this Amendment by the Loan Parties has been duly authorized, and this Amendment constitutes the legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party in accordance with its terms, except as the enforceability may be limited by bankruptcy, insolvency and similar laws affecting the enforceability of creditors' rights generally and to general principles of equity;

4.2the execution, delivery and performance of this Amendment by each Loan Party does not require any consent or approval of any governmental agency or authority (other than (i) any consent or approval which has been obtained and is in full force and effect, or (ii) where the failure to obtain such consent would not reasonably be expected to result in a Material Adverse Effect);

4.3after giving effect to this Amendment and the transactions contemplated hereby, each of the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (unless any such representation or warranty is by its terms qualified by

concepts of materiality, in which case that representation or warranty is true and correct in all respects) with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case that representation or warranty is true and correct in all material respects or in all respects, as applicable, as of that earlier date); and

4.4after giving effect to this Amendment and the transactions contemplated hereby, no Default or Event of Default has occurred and is continuing or would result from the execution and effectiveness of this Amendment.

Section 5Ratification and Reaffirmation. Each Loan Party hereby ratifies and confirms the Credit Agreement and each other Loan Document to which it is a party, in each case, as amended prior to the date hereof and as amended hereby, each of which shall remain in full force and effect according to their respective terms. In connection with the execution and delivery of this Amendment and the other Loan Documents delivered herewith, each Loan Party, as borrower, debtor, grantor, mortgagor, pledgor, guarantor, assignor, obligor or in other similar capacities in which such Loan Party grants liens or security interests in its properties or otherwise acts as an accommodation party, guarantor, obligor or indemnitor or in such other similar capacities, as the case may be, in any case under any Loan Documents, hereby (a) ratifies, reaffirms, confirms and continues all of its payment and performance and other obligations, including obligations to indemnify, guarantee, act as surety, or as principal obligor, in each case contingent or otherwise, under each of such Loan Documents to which it is a party, (b) ratifies, reaffirms, confirms and continues its grant of liens on, or security interests in, and assignments of its properties pursuant to such Loan Documents to which it is a party as security for the Obligations, and (c) confirms and agrees that such liens and security interests secure all of the Obligations. Each Loan Party hereby consents to the terms and conditions of the Credit Agreement, as amended prior to the date hereof and as amended hereby. Each Loan Party acknowledges (i) that each of the Loan Documents to which it is a party remains in full force and effect, (ii) that each of the Loan Documents to which it is a party, as amended prior to the date hereof and as amended hereby, is hereby ratified, continued and confirmed, (iii) that any and all obligations of such Loan Party under any one or more such documents to which it is a party is hereby ratified, continued and reaffirmed, and (iv) that, to such Loan Party's knowledge, there exists no offset, counterclaim, deduction or defense to any obligations described in this Section 5. This Amendment shall not constitute a course of dealing with the Administrative Agent or the Lenders at variance with the Credit Agreement or the other Loan Documents such as to require further notice by the Administrative Agent or the Lenders to require strict compliance with the terms of the Credit Agreement and the other Loan Documents in the future.

Section 6Acknowledgement of Outstanding Amendment Fees. The Borrowers hereby acknowledge and agree that the Borrowers have previously agreed to pay on a joint and several basis to the Administrative Agent, for the account of the Lenders, amendment fees in connection with prior amendments to the Credit Agreement in an aggregate outstanding amount equal to $5,625,000 (including, without limitation, $1,000,000 in fees resulting from the Borrowers' deferral of amortization payments, the "Outstanding Amendment Fees"). The Outstanding Amendment Fees, in the amount of $5,625,000 have been fully earned prior to the Amendment No. 7 Effective Date and are non-refundable, and shall be due and payable on the Termination Date.

Section 7Miscellaneous.

7.1Signatures; Effect of Amendment. By executing this Amendment, each of the Loan Parties is deemed to have executed the Credit Agreement, as amended hereby, as a Borrower and a Loan Party (or, in the case of the Holdings Companies and the Guarantors, solely as a Loan Party). All

such Loan Parties, the Administrative Agent, and the Lenders acknowledge and agree that (a) nothing contained in this Amendment in any manner or respect limits or terminates any of the provisions of the Credit Agreement or any of the other Loan Documents other than as expressly set forth herein and further agree and acknowledge that the Credit Agreement (as amended hereby) and each of the other Loan Documents remain and continue in full force and effect and are hereby ratified and confirmed, and (b) other than as expressly set forth herein, the obligations under the Credit Agreement and the guarantees, pledges and grants of security interests created under or pursuant to the Credit Agreement and the other Loan Documents continue in full force and effect in accordance with their respective terms and the Collateral secures and shall continue to secure the Loan Parties' obligations under the Credit Agreement (as amended hereby) and any other obligations and liabilities provided for under the Loan Documents. Except to the extent expressly set forth herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any rights, power or remedy of the Administrative Agent or the Lenders under the Credit Agreement or any other Loan Document, nor constitute a waiver of any provision of the Credit Agreement or any other Loan Document, nor constitute a novation of any of the Obligations under the Credit Agreement or obligations under the Loan Documents. This Amendment does not extinguish the indebtedness or liabilities outstanding in connection with the Credit Agreement or any of the other Loan Documents. No delay on the part of the Administrative Agent or any Lender in exercising any of their respective rights, remedies, powers and privileges under the Credit Agreement or any of the Loan Documents or partial or single exercise thereof, shall constitute a waiver thereof. None of the terms and conditions of this Amendment may be changed, waived, modified or varied in any manner, whatsoever, except in accordance with Section 15.1 of the Credit Agreement.

7.2Counterparts. This Amendment may be executed electronically and in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of the executed counterpart of this Amendment by telecopy or electronic mail shall be as effective as delivery of a manually executed counterpart to this Amendment.

7.3Severability. The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment or any instrument or agreement required hereunder.

7.4Captions. Section captions used in this Amendment are for convenience only, and shall not affect the construction of this Amendment.

7.5Entire Agreement. This Amendment embodies the entire agreement and understanding among the parties hereto and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof.

7.6References. Any reference to the Credit Agreement contained in any notice, request, certificate, or other document executed concurrently with or after the execution and delivery of this Amendment shall be deemed to include this Amendment unless the context shall otherwise require. Reference in any of this Amendment, the Credit Agreement, or any other Loan Document to the Credit Agreement shall be a reference to the Credit Agreement as amended hereby and as may be further amended, modified, restated, supplemented or extended from time to time.

7.7Governing Law. THIS AMENDMENT IS A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO

CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE, WITHOUT REGARD TO CONFLICT-OF-LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

7.8Payment of Costs and Expenses. Each Loan Party, jointly and severally, agree pursuant to the terms of Section 15.5 of the Credit Agreement, to pay on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent incurred in connection with the transactions contemplated hereby (including Attorney Costs and Taxes) in connection with the preparation, execution and delivery of this Amendment and the other Loan Documents.

[Signatures Immediately Follow]

IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first written above.

By: /s/ Manuel Senderos

4TH SOURCE LLC, a Delaware limited liability company, as a Borrower and a Guarantor

By: /s/ Manuel Senderos

AGILETHOUGHT LLC, a Florida limited liability company, as a Borrower

By: /s/ Manuel Senderos

AN EVOLUTION, S. DE R.L. DE C.V., a sociedad de responsabilidad limitada de capital variable incorporated under the laws of Mexico, as a Borrower

By: /s/ Manuel Senderos

By: /s/ Mauricio Garduo

Signature page to Seventh Amendment

AN EXTEND, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Borrower

By: /s/ Manuel Senderos

By: /s/ Manuel Senderos

By: /s/ Manuel Senderos

By: /s/ Manuel Senderos

Signature page to Seventh Amendment

4TH SOURCE MEXICO, LLC, a Delaware limited liability company, as a Guarantor

By: /s/ Manuel Senderos

AGS ALPAMA GLOBAL SERVICES USA LLC, a Delaware limited liability company, as a Guarantor

By: /s/ Jorge Pliego

AN USA, a California corporation, as a Guarantor

By: /s/ Manuel Senderos

QMX INVESTMENT HOLDINGS USA, INC., a Delaware corporation, as a Guarantor

By: /s/ Jorge Pliego

Signature page to Seventh Amendment

ENTREPIDS TECHNOLOGY INC., a Delaware corporation, as a Guarantor

By: /s/ Manuel Senderos

AGS ALPAMA GLOBAL SERVICES MEXICO, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

AGILETHOUGHT DIGITAL SOLUTIONS S.A.P.I. de C.V. (f/k/a North American Software, S.A.P.I. de C.V.), a sociedad annima promotora de inversiones de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

AgileThought Mexico, S.A. de C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

Signature page to Seventh Amendment

AN DATA INTELLIGENCE, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

ANZEN SOLUCIONES, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

AN UX, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

FAKTOS INC., S.A.P.I. DE C.V., a sociedad annima promotora de inversiones de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

Signature page to Seventh Amendment

By: /s/ Manuel Senderos

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CUARTO ORIGEN, S DE R.L. DE C.V., a sociedad de responsabilidad limitada de capital variable organized under the laws of Mexico, as a Guarantor

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AgileThought : SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (Form 8-K) - Marketscreener.com

What is the Fifth Amendment?

THE defense rested their case on Thursday, April 15 in the murder trial of Derek Chauvin in the death of George Floyd.

The defense presented a total of two days of testimony to the prosecution's two weeks.

Read our Derek Chauvin trial live blog for the latest updates

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The Fifth Amendment to the United States Constitution addresses criminal procedure as well as other aspects of the Constitution.

The Fifth Amendment applies to every level of the government, including the federal, state and local levels, in regard to a US citizen or resident of the US.

One provision of the Fifth Amendment requires thatfeloniesbe tried only uponindictmentby agrand jury.

Another provision, theDouble Jeopardy Clause, provides the right of defendants to be tried only once in federal court for the same offense.

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Theself-incriminationclause provides various protections against self-incrimination, including the right of an individual to not serve as a witness in a criminal case in which they are the defendant.

"Pleading the Fifth" is a colloquial term often used to invoke the self-incrimination clause when witnesses decline to answer questions where the answers might incriminate them.

The Fifth Amendment reads as followed: "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."

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As the defense side drew to a close on April 15, Chauvin removed his Covid-19 face mask and informed the judge that he would not testify, saying he would invoke his Fifth Amendment right not to take the stand.

"Is this your decision not to testify?" Judge Peter Cahill asked Chauvin.

"It is, your honor," Chauvin told the judge.

There was speculation whether Chauvin would testify.

Charges against Chauvin include second-degree murder, third-degree murder and second-degree manslaughter.

An expert told the Star Tribune that it was too risky for Chauvin, whose actions were caught on video, to testify.

"Chauvin doesn't come across as a character that you want to root for because of the video," Joseph Daly, emeritus professor at Mitchell Hamline School of Law, told the Star Tribune.

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"[Prosecutors will] take him through every single second of that video and have him testify.

"In cross-examination he'll just get beat up. It'll be horrible for him. The risk is so immense for him to testify."

Floyd's loved oneswanted to see Chauvin take the stand.

" He won't be able to handle what's thrown at him, because how can you explain that you had your knee on a man's neck for nine minutes? How can you explain that? There's no way to explain. You can't,"brother Philonise Floydtold the Star Tribune.

"So it will be a good thing [if he testifies], but I know that's not going to happen."

The high profile case is expected to end sometime next week.

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Chauvin's decision not to testify has competed the case for both the defense and prosecution's side, which sets up the stage for closing arguments and deliberation Monday, April 19.

The three other fired officers who assisted in Floyd's arrest - J Alexander Kueng, Thomas Lane and Tou Thao - are scheduled to be tried in August on charges of aiding and abetting murder and manslaughter.

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What is the Fifth Amendment?

Prosecution rests in 2nd trial of officers accused of assaulting Black colleague by again focusing on texts – KSDK.com

Also Monday, both officers invoked their Fifth Amendment right not to testify as they did during the first trial

ST. LOUIS Prosecutors trying to convict two former St. Louis police officers for assaulting one of their own as he worked undercover as a protester rested its case Monday with perhaps its most powerful evidence against them: text messages.

In the messages, former Officer Dustin Boone uses the n-word and sends a lengthy apology to the victim in the case, Detective Luther Hall. In one, he tells a friend, I feel bad, we obviously didn't know he was a policeman.

In others, former Officer Christopher Myers writes, Lets whoop some (expletive) as the protests were about to start in 2017 after a judge acquitted a white St. Louis police officer of murdering a Black man.

The jury also heard from a doctor who treated Hall, and said his injuries are consistent with the alleged assault because he did not complain or experience any neck or back problems before it.

Patrick Kilgore, who is representing Boone, suggested the neck issues could be degenerative.

One noticeable absence from the prosecutions witness list is former Officer Randy Hays. He has already pleaded guilty to his role in the alleged assault and is awaiting sentencing.

He testified during the first trial and changed his recollection of what the officers did during the alleged assault.

This is the second time these officers are on trial for their role in this assault.

A jury returned partial verdicts following a two-week trial in March.

Boone is facing the most serious of charges in this case, aiding and abetting in the deprivation of civil rights. It carries a sentence of 10 years in prison.

Myers is charged with tampering with evidence to impede an investigation for allegedly destroying Halls cellphone.

The government must prove Boone knew he was aiding and abetting in the deprivation of Halls civil rights. His defense has focused heavily on how Boone assumed his fellow officers had probable cause to make the arrest, and thats why he held Hall down by putting a knee in his back and pushed his head back down to the ground.

The same can be said for Myers.

The government must prove Myers is the one who struck the phone, and that he knew there was a criminal investigation he needed to impede.

His defense has focused heavily on creating reasonable doubt around who actually destroyed the phone, suggesting at one point Monday that an officer who stepped on it could have shattered the screen and a pebble in that officers shoe could have created the circular shape of the cracks.

The prosecution has said the crack to the phone clearly came from an asp and went through photographs taken by a newspaper photographer and Halls own cellphone to demonstrate its theory.

The defense also spent hours going through the images, and the corresponding timestamps, showing their clients were not near Hall during the alleged assault.

Prosecutors have said the last few frames caught on Halls cellphone show an officer raising a baton before striking the phone and the audio cuts off. Defense attorneys suggested Myers was not near Hall at the moment the phone was struck.

Myers face can be seen in the last few moments before the phone cuts off entirely. His attorneys say he picked it up, saw blood on it, and threw it out of the way. Before Hall was taken away, Myers put the phone back in Halls backpack another move his attorneys say prove he had no intention of destroying evidence.

Also Monday, both officers invoked their Fifth Amendment right not to testify as they did during the first trial.

The defense called four officers to the stand and is expected to call additional officers Tuesday.

Lt. Joe Crews was among the officer called. He said he saw Hall at police headquarters holding a towel to his bloody lip and asked him what happened.

He told me he was running with the (expletives), the worst of the worse, when the police got him.

First Assistant U.S. Attorney Carrie Costantin reminded Crews of his statement to the FBI in which he said Hall told him he was running with everyone and got his (expletive) beat by the police.

The defense is expected to call at least two more witnesses Tuesday, and the jury could start deliberations Tuesday afternoon.

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Prosecution rests in 2nd trial of officers accused of assaulting Black colleague by again focusing on texts - KSDK.com

Right to Due Process: Overview | Constitution Annotated …

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.

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. All persons within the territory of the United States are entitled to its protection, including corporations, aliens, and presumptively citizens seeking readmission to the United States, but States as such are not so entitled. It is effective in the District of Columbia and in territories which are part of the United States, but it does not apply of its own force to unincorporated territories. Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.

Early in our judicial history, a number of jurists attempted to formulate a theory of natural rightsnatural justice, which would limit the power of government, especially with regard to the property rights of persons. State courts were the arenas in which this struggle was carried out prior to the Civil War. Opposing the vested rights theory of protection of property were jurists who argued first, that the written constitution was the supreme law of the State and that judicial review could look only to that document in scrutinizing legislation and not to the unwritten law of natural rights, and second, that the police power of government enabled legislatures to regulate the use and holding of property in the public interest, subject only to the specific prohibitions of the written constitution. The vested rights jurists thus found in the law of the land and the due process clauses of the state constitutions a restriction upon the substantive content of legislation, which prohibited, regardless of the matter of procedure, a certain kind or degree of exertion of legislative power altogether. Thus, Chief Justice Taney was not innovating when, in the Dred Scott case, he pronounced, without elaboration, that one of the reasons that the Missouri Compromise was unconstitutional was that an act of Congress that deprived a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. Following the war, with the ratification of the Fourteenth Amendments Due Process Clause, substantive due process interpretations were urged on the Supreme Court with regard to state legislation. First resisted, the arguments came in time to be accepted, and they imposed upon both federal and state legislation a firm judicial hand that was not to be removed until the crisis of the 1930s, and that today in non-economic legislation continues to be reasserted.

It may prevent confusion, and relieve from repetition, if we point out that some of our cases arose under the provisions of the Fifth and others under those of the Fourteenth Amendment to the Constitution of the United States. Although the language of those Amendments is the same, yet as they were engrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper. The most obvious difference between the two Due Process Clauses is that the Fifth Amendment clause as it binds the Federal Government coexists with other express provisions in the Bill of Rights guaranteeing fair procedure and non-arbitrary action, such as jury trials, grand jury indictments, and nonexcessive bail and fines, as well as just compensation, whereas the Fourteenth Amendment clause as it binds the states has been held to contain implicitly not only the standards of fairness and justness found within the Fifth Amendments clause but also to contain many guarantees that are expressly set out in the Bill of Rights. In that sense, the two clauses are not the same thing, but, insofar as they impose such implicit requirements of fair trials, fair hearings, and the like, which exist separately from, though they are informed by, express constitutional guarantees, the interpretation of the two clauses is substantially, if not wholly, the same. Save for areas in which the particularly national character of the Federal Government requires separate treatment, this book's discussion of the meaning of due process is largely reserved for the section on the Fourteenth Amendment. Finally, some Fourteenth Amendment interpretations have been carried back to broaden interpretations of the Fifth Amendments Due Process Clause, such as, for example, the development of equal protection standards as an aspect of Fifth Amendment due process.

Due process under the Fifth and Fourteenth Amendments can be broken down into two categories: procedural due process and substantive due process. Procedural due process, based on principles of fundamental fairness, addresses which legal procedures are required to be followed in state proceedings. Relevant issues, as discussed in detail below, include notice, opportunity for hearing, confrontation and cross-examination, discovery, basis of decision, and availability of counsel. Substantive due process, although also based on principles of fundamental fairness, is used to evaluate whether a law can be applied by states at all, regardless of the procedure followed. Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy, and over time has alternately emphasized the importance of economic and noneconomic matters. In theory, the issues of procedural and substantive due process are closely related. In reality, substantive due process has had greater political import, as significant portions of a state legislatures substantive jurisdiction can be restricted by its application.

Although the extent of the rights protected by substantive due process may be controversial, its theoretical basis is firmly established and forms the basis for much of modern constitutional case law. Passage of the Reconstruction Amendments (13th, 14th, and 15th) gave the federal courts the authority to intervene when a state threatened fundamental rights of its citizens, and one of the most important doctrines flowing from this is the application of the Bill of Rights to the states through the Due Process Clause. Through the process of selective incorporation, most of the provisions of the first eight Amendments, such as free speech, freedom of religion, and protection against unreasonable searches and seizures, are applied against the states as they are against the federal government. Though application of these rights against the states is no longer controversial, the incorporation of other substantive rights, as is discussed in detail below, has been.

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Right to Due Process: Overview | Constitution Annotated ...

There are instances in which the government can take your home. Heres how. – WKMG News 6 & ClickOrlando

Did you know that there are some instances in which the United States, state and municipal governments can come take your property, even without your consent?

Its a legal right called eminent domain, and if you have never heard of it or want to know more, here are some key questions as to how it happens and how to deal with it.

Eminent domain is the Fifth Amendment right of a government entity to take your property for a public purpose. The government has to provide proof that the property will have a beneficial use to the public, and also has to make a fair value offer for the property.

There is a wide range of situations, but the most common ones are for construction of roads/highways and public buildings, supplying water to a community or for defense purposes.

There are cases when it can be. If the government makes an offer for more than the property is worth or if a property owner doesnt owe much more money on a loan, eminent domain can be great for that owner. But it can work the other way, also. If an owner owes more money on a property than is offered by the government, it can be a crushing blow.

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If someone is unhappy about an eminent domain offer from the government, an owner can retain the services of a lawyer and fight for a better offer. As part of the process, that lawyer can also hire a forensics appraiser that can evaluate the value of a property and testify in front of a judge in defense of that evaluation.

Roughly 95% of cases are settled before going to court, according to Rick Dreggors, a forensic appraiser in Orlando with 34 years of experience in the industry. But there are instances in which cases arent settled, and a judge will decide the true value of an offer and what an owner should be getting from the government.

On this most recent episode of You Have Real Estate With Justin Clark, attorney Justin Clark chats about eminent domain with Dreggors.

To watch the full segment, hit play on the video above.

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There are instances in which the government can take your home. Heres how. - WKMG News 6 & ClickOrlando

History Book – The right to remain silent – WORLD News Group

NICK EICHER, HOST: Today is Monday, June 14th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. Im Nick Eicher.

MARY REICHARD, HOST: And Im Mary Reichard. Next up: The WORLD History Book. Today, stealth technology, the constitutional rights of the accused, and the death of a traitor. Heres senior correspondent Katie Gaultney.

SONG: Hush, Joy Williams and Matt Berringer, from AMCs Turn

KATIE GAULTNEY, SENIOR CORRESPONDENT: Benedict Arnold, a name synonymous with betrayal. After the Americans uncovered his treason, he escaped, defecting to the British. But he couldnt escape death. Arnold died of natural causes 220 years ago, on June 14, 1801.

Arnold rose to the rank of major general in the American Continental Army. Motivated by the promise of 20,000 British poundsand at his wifes urgingArnold plotted to gain command of the American fortress of West Point, New York, then turn it over to the British. West Point was so critical, soldiers called it the key to the colonies. Losing it would cut the colonies in halfand cut off access to important supplies, sabotaging the revolutionary effort.

Papers outlining Arnolds scheme fell into the hands of American militia forces, who alerted Washington.

U.S. Army Lieutenant General Dave Palmer shared with Biography how Americas top brass regarded Arnold.

PALMER: Right after his treason, George Washington decreed that the name Benedict Arnold would never be mentioned again in anything written about the army or about the country.

But the British didnt welcome him either, despite that he made a home among them. They provided for his needs, setting Arnolds wife, Peggy, up with a pension for life. But Arnold was largely shunned socially. He developed a nervous disorder that would ultimately claim his life. The Biography channel reenacted one of Arnolds last wishes. He asked his wife, Peggy

CLIP: Let me die in my old American uniform, the uniform in which I fought my battles. God forgive me for ever putting on another. Benedict Arnold, 1801.

He died at age 60 in London on June 14, 1801, followed not long after by his wife. She was just 44 years old.

DETECTIVE: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you at no cost.

Any fan of Law & Order knows those familiar words: the Miranda rights. But they arent just a trope of crime procedurals. They came as the result of a U.S. Supreme Court decision 55 years ago. On June 13, 1966, the nations highest court ruled in Miranda v. Arizona that police must inform suspects of their rights before questioning them.

A man named Ernesto Miranda faced charges of kidnapping and rape in 1963. He didnt have a lawyer during his two-hour police interrogation. During questioning, he confessed to both crimes. A lengthy jail sentence followed. But, he appealed his conviction, saying he didnt know he had the right to remain silent.

The Fifth Amendment says No person... 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. And the Sixth Amendment protects the right of those facing criminal prosecution to have the assistance of counsel for his defense.

In a 5-4 decision, the Supreme Court ruled that prosecutors could not use Mirandas confession against him. They said investigators had not informed Miranda of his right against self-incrimination or his right to an attorney. Ultimately, they said an accused persons rights dont mean much if he doesnt know he has them. So, the Miranda Warning was born. It aims to protect people from self-incrimination when their lives are on the line.

After the Supreme Court decision, Miranda stood trial again. The second time, a jury convicted him without the confession.

And well top off todays History Book with top-secret technology.

SONG: Danger Zone, Kenny Loggins

Lockheeds F-117 Nighthawk made its maiden flight on June 18, 1981, after six years of development at the Pentagon. The plane was the first operational aircraft designed around stealth technology. The Defense Department finally admitted the planes existence in 1988. In the early 1990s, the plane proved to be a valuable asset during Operation Desert Storm. Colonel Rick Wright of Holloman Air Force Base.

WRIGHT: You notice the airplane has a pretty strange shape to it. It doesnt have any curves on it, its in a faceted shape like a diamond or some kind of jewel.

And that unusual shape is the key to its stealth technology. A Russian scientist determined in the 1960s that sharp edge configuration decreases an object's radar signature.

WRIGHT: The shape of the airplane bounces radio signals so they dont return back to the transmitter, and then any signals that do bounce back are attenuated by the skin of the airplane so that they come back much smaller

The Air Force retired the F-117 in April 2008 as other advanced stealth aircrafts joined its fleet. Still, some Nighthawks remain airworthy, and people have reported sightings as recently as last year.

Thats this weeks History Book. Im Katie Gaultney.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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History Book - The right to remain silent - WORLD News Group