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History >> US Government The Fifth Amendment was part of the Bill of Rights that was added to the Constitution on December 15, 1791. It covers a number of topics and issues including the grand jury, double jeopardy, self-incrimination ("taking the fifth"), due process, and eminent domain. We'll explain each of these in more detail below.

From the Constitution

Here is the text of the Fifth Amendment from the 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 Grand Jury

The first part of the amendment talks about a grand jury. The grand jury is a jury that decides if a trial should be held. They look at all the evidence and then decide if a person should be charged with a crime. If they decide there is enough evidence, then they will issue an indictment and a regular trial will be held. The grand jury is only used in cases where the punishment for the crime is severe such as life in prison or the death sentence.

Double Jeopardy

The next section protects the person from being tried for the same crime more than once. This is called double jeopardy.

Taking the Fifth

Perhaps the most famous part of the Fifth Amendment is the right to not testify against yourself during a trial. This is often called "taking the fifth." The government must present witnesses and evidence to prove the crime and cannot force someone to testify against themselves.

Miranda Warning

You've probably heard the police on TV say something like "you have the right to remain silent, anything you say or do may be used against you in a court of law" when they arrest someone. This statement is called the Miranda Warning. Police are required to tell people this before they question them as part of the Fifth Amendment. It reminds citizens that they don't have to testify against themselves.

Due Process

The amendment also states that a person has a right to "due process of law." Due process means that any citizen charged with a crime will be given a fair trial that follows a defined procedure through the judicial system.

Eminent Domain

The last section says that the government can't take a person's private property without paying them a fair price for it. This is called eminent domain. The government can take your property for public use, but they have to pay you a fair price for it.

Interesting Facts about the Fifth Amendment

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US Government for Kids: Fifth Amendment

As criminal law has expanded into almost every sector of the American economy, one byproduct is the rise of "parallel proceedings"lawsuits that proceed concurrently in criminal and civil court based on largely the same facts. Often times, the government is a party to both proceedings. This is most common in False Claims Act cases or in securities enforcement proceedings. But that is not always the case. Civil litigation, especially cases involving claims of fraud and deceit, may also attract the government's attention (sometimes in response to a request by one of the parties). In those cases, at least one of the parties will be confronted with the difficult task of navigating the two proceedings without doing violence to the client's interest in either.

The discovery process typically presents the most treacherous waters for the lawyers tasked with handling parallel proceedings. Criminal and civil practitioners who rarely venture over to the "other side" may forget or be unaware of the dramatic differences in a defendant's ability to request and obtain evidence when the defendant is the subject of an indictment instead of a civil complaint. This article explores some of those differences in the discovery contextthough litigants who find themselves involved in parallel proceedings will quickly find that differences in discovery are only one of the many factors that must be carefully considered as part of an overall litigation strategy.

United States v. Rand and Federal Discovery

A helpful case study of the different tools available to litigants in the civil and criminal context is the Fourth Circuit's recent decision in United States v. Rand. The government began investigating Michael T. Rand in 2007 in relation to alleged mortgage fraud that occurred while he was acting as chief accounting officer at Beazer Homes USA, Inc. ("Beazer"). In 2009, the SEC brought charges against Rand in a civil, regulatory proceeding on allegations that he had conducted a multi-year fraudulent accounting scheme. Then, in 2010, the government charged Rand criminally with accounting fraud and with obstructing the investigation into Beazer's mortgage practices. Before his trials, Rand sought leave of court to issue subpoenas pursuant to Federal Rule of Criminal Procedure 17(c) to obtain information regarding, among other things, Beazer's accounting systems. Rand's subpoena for documents to Beazer asked for "accounting entries, budgets, budget entries, and financial reports for seven categories of reserve accounts over an eight-year period (the timeframe of the alleged conspiracy)." Rand sought this information to bolster his defense of his accounting practices. The district court denied Rand's requests.

On appeal, the Fourth Circuit examined Rule 17(c) and held that the rule is "not intended to provide a means of pretrial discovery." Instead, the purpose of the rule is to expedite the trial by providing time and place before trial for the inspection of subpoenaed materials. Although requests like those contained in Rand's proposed subpoena would be considered commonplace in civil litigation, the Fourth Circuit found this request to be too broad under the Federal Rules of Criminal Procedure, comparing it to a "fishing expedition."

Criminal vs. Civil Discovery

The court's assessment highlights the differences in discovery in criminal and civil proceedings. Rand's options for discovery were more limited than they would have been in a civil case, as illustrated by the following chart listing the discovery tools available to criminal and civil litigants:

The Civil Side Methods for Obtaining Discovery under the Federal Rules of Civil Procedure

The Criminal Side Methods for Obtaining Discovery under the Federal Rules of Criminal Procedure

Rule 26(b)(1) permits discovery of "any non-privileged matter relevant to any party's claim or defense."

Rule 16 permits discovery, upon the defendant's request, of the defendant's statements, criminal record, and certain documents and tangible evidence the government intends to use in its case-in-chief at trial. Once the government has complied, Rule 16 triggers reciprocal obligations on the defendant's part.

Rule 27 Depositions to perpetuate testimony before an action is filed

Rule 15 Depositions are not allowed by right. Upon a party's motion, the court may allow oral depositions "to preserve testimony for trial" if there are "exceptional circumstances" and it is "in the interest of justice."

Rule 30 Depositions by oral examination

Rule 31 Depositions by written questions

The Criminal Rules do not provide a mechanism to require the opposing party to prepare written responses to questions. Accordingly, this method is not available to force the opposing party to take positions or forecast strategy.

Rule 33 Interrogatories to parties

Rule 36 Requests for admission

Rule 34 Requests for production of documents

Rule 16 The defendant has to make a request to trigger this Rule, which then creates reciprocal obligations to produce pre-existing documents that fit into broad categories articulated in the rule.

Brady v. Maryland, 373 U.S. 83 (1963), established that the government must turn over evidence that is exculpatory, or might exonerate the defendant. This includes evidence that might prove the defendant's innocence or reduce his or her sentence, as well as evidence that impeaches or discredits the government's case.

Giglio v. United States, 405 U.S. 150 (1972), provides that the government must disclose information relating to any deals that witnesses have received in exchange for their cooperation.

The Jencks Act, 18 U.S.C. 3500, requires the government to produce written statements and reports of its witnesses. This law only requires the production of Jencks material after the witness has testified, although the government frequently delivers the materials pre-trial in the interest of efficiency.

Rule 45 Subpoenas to third parties, which may command attendance at a deposition or command a party to produce or permit inspection of documents, electronically stored information, or tangible things.

Rule 17 Does not provide the defendant with a broad-reaching subpoena power. The court authorizes the issuance of a subpoena only if the terms meet the high standard articulated in United States v. Nixon: (1) that the documents are evidentiary and relevant; (2) that [the documents] are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that [the subpoenaing] party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general fishing expedition.

By contrast, the government's ability to subpoena third parties through the power of the grand jury is almost unlimited.

As the chart makes clear, a civil litigant has far more ability to obtain information from the opposing side and third parties through a wide variety of tools. While the 2015 amendments to the Federal Rules of Civil Procedure impose a "proportionality" requirement, the civil rules remain designed to help the parties fully flesh out their theories and collect the evidence necessary to support them. It is also critical to remember that civil litigation can, and routinely is, resolved short of trial by jury based on the evidence collected through the discovery process and presented to the court in support of summary judgment. There is no analogous vehicle for challenging a criminal indictment.

The exchange of information in criminal cases, by contrast, is designed to expedite the decision to seek a trial of the case, or negotiate a plea. The government's obligation to produce information obtained during the course of the investigation is fairly broad, though the timing of the disclosures can often be a source of dispute since there are few firm deadlines established by the criminal rules. However, nothing obligates the government to investigate potential defenses to a charge. As such, the decision to accept a plea offer is made based not on a thorough review of all the available evidence, but on an evaluation of the evidence the government intends to present at trial. To the extent an affirmative defense rests on facts not collected during the government's investigation, the burden falls to the defendant to use the limited criminal discovery tools in his arsenal to collect potentially exonerating evidence.

This is precisely where Mr. Rand found himself. Rand's subpoena requests to Beazer would have been routine in a civil case. But because Rand was a defendant in a criminal matter, his ability to obtain such information from Beazer was significantly, if not entirely, diminished. Rand may have utilized civil discovery tools in the SEC's case against him, but that civil suit settled prior to the resolution of the criminal matter. While Rand would have had the opportunity to serve discovery and subpoena third parties in the civil matter, whether or not he would have elected to do so raises a number of critical strategic and legal questions that all litigants in parallel proceedings must consider.

Discovery Issues in Parallel Proceedings

Access to Discovery

For a defendant in a criminal case, the expansive discovery power in a civil action might seem to be an attractive way to get additional information. However, there are downsides to attempting to use a parallel civil case to obtain discovery that would also be useful for a criminal defense. First, courts are wary of criminal defendants skirting the criminal rules by using civil discovery tools. Despite the broad latitude civil litigants generally enjoy in conducting discovery, the court may be more willing to quash or limit requests geared towards the criminal defense, particularly if the government objects.

Additionally, the litigant must also consider that the same discovery tools used to obtain information may be used against him or her. While the discovery rules (especially the civil rules) often allow for broad investigation of the opposing side's case, they simultaneously create broad exposure to respond to civil discovery requests, which can multiply costs and create self-incrimination issues. These considerations become particularly complicated when the opposing civil litigant is a government entity. Federal agencies involved in civil enforcement actions work closely with the Department of Justice, and information obtained in these civil actions can be used in a later criminal proceeding.

Along the same lines, civil litigants also must exercise caution regarding the discoverability of materials provided to the government if the parties are in a cooperative posture. Regulatory agencies provide strong incentives for companies and individuals to cooperate in civil and administrative regulations. However, statements and documents provided in these civil proceedings are likely to be shared among agencies and may form the basis for a subsequent criminal prosecution.

Fifth Amendment Implications

The Fifth Amendments protection against self-incrimination applies to individuals in both civil and criminal proceedings. However, the application of this right differs in each arena. A criminal defendants decision to invoke his or her Fifth Amendment rights may not be used against him or her. Because the government cannot force a defendant to make pre-trial statements or testify at trial, a fact-finder is unlikely to even hear a defendant invoke his or her right against self-incrimination.

By contrast, in a civil setting, a party has no ability to assert a blanket invocation of his or her Fifth Amendment rights. Instead, these rights must be asserted on a question-by-question basis in response to written discovery requests, deposition questions, or even examination at trial. Further, unlike in the criminal setting, the invocation can be used against the individual who makes it. If an individual invokes his or her Fifth Amendment privilege against self-incrimination in a civil proceeding, the opposing party is entitled to an instruction to the fact-finder that it may draw an adverse inference from the invocation of Fifth Amendment rightsin other words, the fact-finder may infer that the invoking party is guilty of some wrongdoing.

Moreover, business entities have no testimonial protection under the Fifth Amendment, and cannot assert the privilege on behalf of individual employees. The Fifth Amendment does protect a witness from having to produce documents if doing so would be testimonial in nature by revealing the witness's mental processes. However, the privilege does not apply to corporate records or documents kept pursuant to law.

Stays of Litigation

Due to these complications, parties frequently seek stays of civil litigation pending the resolution of the related criminal matter. Criminal defendants might seek a stay to avoid making damaging admissions in the civil proceeding, or to avoid the application of the adverse inference. The government might wish to stay the civil litigation to prevent the defendant from using civil discovery to prepare his or her defenses, particularly since the defendants Fifth Amendment rights prevent the government from using civil discovery similarly. While requests for stays technically are not granted as a matter of course, courts generally will stay the civil litigation if one or more parties can demonstrate true risk of injury arising from the concurrent proceedings.

Conclusion

Successfully litigating through parallel proceedings is an endeavor fraught with peril. Litigants involved in concurring civil and criminal matters, like the defendant in Rand, should seek the advice of counsel skilled in navigating parallel proceedings to avoid potential discovery pitfalls.

Excerpt from:
A Parallel Universe: Navigating Discovery in Concurrent Civil and Criminal Proceedings - JD Supra (press release)

Daniela Vargas speaks at news conference on March 1 about her deportation fears.

ABC News

Last week, officers from Immigration and Customs Enforcement arrested 22-year-old Dreamer Daniela Vargas, a Mississippi resident who has been living in the United States since she was 7. But for a temporary lapse in her status under the Deferred Action for Childhood Arrivals immigration policy, Vargas has been everything America says it wants in an immigrant: well-educated, ambitious, law-abiding, and patriotic. It should surprise nobody that she is about to be deported.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Vargas was taken into ICE custody just moments after she publicly criticized the Trump administrations immigration raids, a move that makes it appear as if she was swept up by the immigration agency on account of what she said to the press. ICE agents have confirmed that Vargas was taken into custody during a targeted immigration enforcement action. One may well wonder what was being targeted in that action, if not her speech. In part because her arrest seemed so deliberately linked to her decision to speak out, her lawyers, the Southern Poverty Law Center, and other civil rights groups filed a petition in the U.S. District Court for the Western District of Louisiana on Monday to stop her deportation. Her attorneys are claiming that Vargas arrest amounts to retaliation against someone exercising her First Amendment rights.

The petition explains that Vargas graduated high school in 2013 with honors and that she has attended East Central Community College and the University of Southern Mississippi, where she has studied to be a math teacher. In addition to her pending DACA renewal, she also has a petition pending for a U nonimmigrant visa, which is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

Vargas was at home in February when her brother and father were taken into ICE custody. Having lost her DACA status last Novemberher attorneys say she could not afford the $495 renewal fee at the timeVargas had reapplied last month. When ICE agents raided Vargas home on Feb. 15, they led her father and brother away in handcuffs. According to her petition, Vargas told the agents she had been granted DACA status. She then went into her house, locked the door, and hid in a closet. The ICE agents returned with a search warrant. The petition alleges they broke down the front door and that an agent pointed a gun at Vargas when she emerged from the closet. Before they left the house, Vargas was allegedly told that they knew her DACA had lapsed, but that they were giving her a hall pass. Vargas then left the house and spoke to local media , which had gathered outside during the raid.

Vargas hall pass apparently expired a few weeks later. On March 1, she spoke at a press conference, describing the raid on her home and the need for a pathway to citizenship. Moments later, she was pulled out of her friends car by ICE agents and arrested. According to her petition, one of the ICE agents who had been at the raid at her home said, Remember me? You know who we are; you know why were here, and youre under arrest for being an illegal immigrant. Vargas has been in an ICE detention facility ever since. Her petition concludes that she is now at imminent risk of deportation to Argentinaa country she left in 2001 at age seven, that she scarcely knows, and to which she fears returning.

Nobody knows whether DACA is at risk under the Trump regime.

ICE originally stated that Vargas case would be heard before an immigration judge. The Department of Homeland Security has apparently gone back on its word; it is now taking the position that Vargas is not entitled to contest her deportation as she entered this country in 2001 through the Visa Waiver Program. The statute establishing the VWP requires any noncitizen entering the U.S. to waive his or her right to contest, other than on the basis of an application for asylum, any action for removal of the alien. Her lawyers argue that detaining and deporting Vargas without a hearing violates her Fifth Amendment due process rights, because at age 7 she could not have knowingly and voluntarily waived her right to seek a hearing to contest deportation.

Vargas speech claims have broad implications not just for DACA recipients but for whistleblowers and immigration activists around the country. Her petition cites cases from the Fourth and Ninth Circuits, holding that everyone in the United States, including noncitizens, enjoys the right to peaceful expression of views through public demonstration. Vargas lawyers argue that the First Amendment prevents law enforcement officials from retaliating against speakers by targeting, detaining, arresting, and/or seeking to deport an individual engaging in protected speech where the officials actions caused [the speaker] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity and when those officials were substantially motivated against the plaintiffs exercise of constitutionally protected conduct.

There can be no dispute that Vargas remarks about the ICE raid on her family home represent the kind of core political speech the First Amendment is designed to protect. Its also beyond dispute that Vargas had been permitted to stay in the country only days before and that the speech seems to have triggered a change in ICE policy. The Trump immigration effort, we were told, was supposed to consist of stepped-up deportations of criminalsnot lawful political speakers. Vargas did nothing to warrant deportation without due process.

The other problem, as her lawyers contend, is that nobody knows whether DACA is at risk under the new regime. DACA has afforded protections to 750,000 immigrants since the Obama administration launched it in 2012. In the weeks since his inauguration, Trump has given wildly conflicting messages about whether it will continue to be in effect. If Vargas is now at risk because of a brief technicality around her Dreamer status, its hardly clear that DACA still has real force. And if Dreamers can be removed for little more than giving a political speech, they are now as much at risk as other noncriminals in Trumps America.

The casual cruelty of Trumps war on lawful immigrants depends on the complicity of citizens, and the chilling of both protest and media watchdogging. In addition to our collective vigilance, the solution for the cruelty around the action against Daniela Vargas will be the same as the solution to Trumps original, vicious travel ban: lawyers. Lots of them. The Southern Poverty Law Center announced Tuesday that its launching a new project to ensure that detained immigrants will have access to free lawyers. We are going to need them.

Read the original:
Daniela Vargas embodies the casual cruelty of Trump's war on ... - Slate Magazine