Archive for the ‘Fifth Amendment’ Category

DeMaria Blasts Critics and False Allegations – Everett Independent

Mayor Carlo DeMaria took aim at hisdetractors at the City Council meeting on Monday, February 24, for what hispersonal attorney referred to as demonstrably false allegations regarding hisconduct as mayor.

The mayor demanded an audience to answer aquestion previously posed by Councilor Michael Marchese about why he spent morethan $200,000 in legal fees from his personal campaign account. Some councilorspushed back against Mayor DeMarias address on Monday, as the issue was alreadyslated for a future committee meeting in March.

I dont see any reason to bring it uptonight, said Councilor Fred Capone.

Other councilors expressed feeling blindsidedby the mayors appearance and unprepared to speak on the issue, includingCouncilor Marchese.

Im not prepared to ask the questions that Iwould have [in the committee meeting], he said.

However, Mayor DeMaria insisted on beingheard, seizing on an opportunity to address specific rumors. He was representedby Asst. City Solicitors Matt Lattanzi and Keith Slattery, as well as hisprivate attorney John Pappalardo and fellow attorney Emily Bryant.

Pappalardo referred to himself as the seniorpartner of a very, very large international law firm and said that he chargesMayor DeMaria $1,650 per hour for his services. Reading from a preparedstatement, he explained that he was hired by the mayor to enhance hispolitical future by addressing scurrilous and unfounded attacks in the form ofsocial media posts, news media and blogs.

Pappalardo added that according toMassachusetts General Laws, public officials are able to retain counsel inorder to protect their reputations, and said that $200,000 was actually notmuch money. He couldnt confirm where his fees were coming from, but said hisclient is looking into suing those who besmirch his character.

Pappalardo attempted to disprove gossipswirling around about Mayor DeMarias conduct. Specifically, he defended aninterview the mayor gave to the U.S. government years ago, which was madepublic after a proffer agreement for that meeting was somehow leaked to themedia.

[He] has been portrayed as a snitch or aninformant. These allegations are completely untrue, he said. People who havesomething to hide dont talk. They invoke the Fifth Amendment.

Pappalardo admitted that he did not know whythe government interviewed Mayor DeMaria, but insisted that Council hadnothing to worry about and urged the body to question the validity of claimsposed in a one-man tabloid-type newsletter.

Your mayor is innocent of wrongdoing, hesaid. He has never been charged with a crime.

Mayor DeMaria mostly allowed his attorney tospeak on his behalf.

For the last six years, Ive enduredCouncilman Marcheses constant attacks on social media, in the public and inthe news, he said. Dont tell me that he or anyone else doesnt havequestions [prepared]. Theyve asked their questions in the Everett LeaderHerald.

The mayor also accused the Council of payingfor ads in the Leader Herald in exchange for a smear campaign.

Councilor Wayne Matewsky sided with MayorDeMaria and his counsel.

In Everett, if they cant beat you, theyslander you, he said.

Councilor Anthony DiPierro spoke on themayors behalf at least twice.

Lets stop allowing this body to be dictatedby a self-proclaimed newsletter and lets move the city forward, he said.

Councilor Capone said that as electedofficials, it was their duty to investigate all claims of wrongdoing.

This whole thing is ridiculous, MayorDeMaria said. Youve been slaughtering me for years, especially the Marchesefamily.

Councilors expressed a desire to continue thediscussion at the committee meeting as planned, and also requested that themayor provide his invoices for Pappalardos services.

Council President Rosa DiFlorio, who struggled to maintainorder during the meeting, gaveled a 10-minute recess to allow tensions tosettle before resuming the usual order of business.

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DeMaria Blasts Critics and False Allegations - Everett Independent

Recovering A Strong American Conception Of Property Rights – The Federalist

Within our constitutional framework, property rights have been relegated to second-class citizenship.

Take the Supreme Courts double-standard on the Fifth Amendments prohibition against the government taking private property unless its for public use. For alleged infringements of other guarantees in the Bill of Rights, the Court strictly scrutinizes government action. But with the Fifth Amendments property protections, the Court allows legislatures to interpret their own constitutional boundaries. If only property rights are at stake, then the fox may guard the henhouse.

Or consider the Courts amorphous review for substantive due process, a values-based inquiry into the constitutional legitimacy of state and federal regulatory laws. On this score, the Court candidly concedes that property rights and contractual freedoms enjoy less protection than other, non-economic liberties.

In his new book Property and the Pursuit of Happiness: Locke, the Declaration of Independence, Madison, and the Challenge of the Administrative State, Edward Erler shows how constitutional property rights climbed through the looking glass and came out topsy-turvy. From Americas founding era to the present day, property rights flipped from cachet to low-caste, and whats supposed to be up, well, is down.

Erler is a professor of political philosophy, so its unsurprising this books foremost contribution is its discussion of the vital role property rights played in the Framers constitutional vision. Tracing an arc of political thought from Aristotle through Locke on to the Declaration of Independence, Erler argues that the Founding Fathers put an inherently American gloss on pre-existing conceptions of property one that merged natural rights and moral obligation into a synthesis they called the pursuit of happiness.

For the Founders, the right to property was the comprehensive right that included all other rights. In this spirit, the Supreme Court in 1795 averred that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and unalienable rights of man.

Erler explains the decline of property rights from these sanctified heights. As the economy advanced and governments grew, vested property interests came increasingly into conflict with public policy, and it fell to the courts to demarcate the boundaries between public and private spheres.

For much of our nations history, as courts wrestled with these controversies, they hewed to an understanding of property rights closer the Framers than what we see today. The practical result was that property rights enjoyed considerable constitutional protection from overbearing government.

But the scales of justice shifted early in the twentieth century, when the Progressive forces of history swept first into legislatures and then into the courts. Progressives rejected the Founders conception of property rights because it impeded the science of economic planning. As Progressive influence waxed, property rights waned.

Although Property and the Pursuit of Happiness overlaps in subject and tone with Richard Epsteins excellent 2008 book, Supreme Neglect: How to Revive Constitutional Protection for Private Property, the two books are complementary but not the same. Discussion of the Founding Fathers is largely absent from the latterarguably the only flaw in Epsteins seminal workand this topic is Erlers strongest contribution.

This is not to say that Property and the Pursuit of Happiness is flawless. In the introduction, Erler warns that he test[s] the patience of the reader on some occasions, and hes not lying. The book is needlessly difficult. Relatedly, he peppers his prose with awkward sentence introductions (e.g., In a statement that is not entirely hyperbolic . . .). Further, the books subtitle, which mentions the Challenge of the Administrative State, engages in a bit of false advertising, as Erler gives the topic only a cursory examination.

Notwithstanding these drawbacks, Property and the Pursuit of Happiness is an important contribution to a growing body of scholarship pushing for a restoration of property rights to their original place among our individual freedomsparticularly with respect to the Fifth Amendments Takings Clause.

The good news is that these ideas are taking root. To wit, the Trump administration is reshaping the federal judiciary with a generation of judges affected by Richard Epsteins work. On the other side of the bar, dogged public interest lawyersmost notably those at the Pacific Legal Foundationhave advanced property rights in courts across the country. After decades, all this effort is paying off.

Consider the blowback to the Supreme Courts infamous holding 15 years ago in Kelo v. City of New London, which allows government to condemn peoples homes and give their land to a corporation in the name of economic development. As Ilya Somin explains in his book The Grasping Hand, many state courts reacted to Kelo by tightening restrictions on the use of eminent domain.

Last Summer, the Court handed down a watershed decision in Knick v. Township of Scott, which basically puts property rights (and Fifth Amendment takings claims, specifically) on the same procedural footing as other guarantees enumerated in the Bill of Rights. The Courts newest members, Justices Neil Gorsuch and Brett Kavanaugh, joined Chief Justice John Robertss Knick opinion. The holding is a bold step towards ending the inequality of our constitutional rights.

None of these welcome developments would have happened absent the toils of scholars and practitioners who laid the foundations for a resurgence of property rights. With Property and the Pursuit of Happiness, Erler adds a valuable voice to this worthy cause.

William Yeatman is a research fellow at the Cato Institute in Washington, D.C.

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Recovering A Strong American Conception Of Property Rights - The Federalist

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 | Summary, Rights, & Facts | Britannica

Fifth Amendment – Constitution of United States of America 1789

A Guide to the Fifth Amendment

The Fifth Amendment, or Amendment V of the United States Constitution is the section of the Bill of Rights that protects you from being held for committing a crime unless you have been indicted correctly by the police. The Fifth Amendment is also where the guarantee of due process comes from, meaning that the state and the country have to respect your legal rights. The Fifth Amendment was introduced as a part of the Bill of Rights into the United States Constitution on September 5, 1789 and was voted for by of the states on December 15, 1791.

History of the Fifth Amendment

Once the United States won their independence from the British Parliament and monarchy that had acted like tyrants, the Framers of the United States Constitution did not trust large, centralized governments. Because of this, the Framers wrote the Bill of Rights, which were the first 10 amendments, to help protect individual freedoms from being hurt by the governmental. They included the Fifth Amendment, which gave five specific freedoms to American citizens.

Understanding the Fifth Amendment Line by Line

If you are confused by what each line means, here are some explanations to make the Fifth Amendment easier to understand:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury: No one can be put on trial for a serious crime, unless a grand jury decide first that there is enough proof or evidence so that the trial is needed. If there is enough evidence, an indictment is then issued, which means that the person who is charged with the crime will can put on trial for the crime.

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: People in the military can go to trial without a grand jury first deciding that it is necessary. This is the case if the military person commits a crime during a national emergency or a war.

Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb: If someone is put on trial for a certain crime and the trial ends, the person cannot be tried once more for the same crime. If a person is convicted of a crime and then serves his or her time in jail, or if the person is acquitted, he or she cannot be put on trial a second time.

Nor shall be compelled in any criminal case to be a witness against himself: The government does not have the power to make someone testify against himself. That is why a trial uses evidence and witnesses instead of the testimony of the accused person.

Nor be deprived of life, liberty, or property, without due process of law: The government cannot take away a persons life, property, or freedom without following certain steps that give the person a fair chance. This is what is known as due process. Due Process helps protect a persons rights.

Nor shall private property be taken for public use, without just compensation: The government cannot take away a persons property for public use without somehow paying them back for it.

Facts About the Fifth Amendment

The Fifth Amendment was introduced into the Constitution by James Madison.

The ideas in the Fifth Amendment can be traced back to the Magna Carta, which was issued in 1215.

A defendant cannot be punished for using his right to silence during a criminal trial, but there are some consequences to using it in a civil trial.

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Fifth Amendment - Constitution of United States of America 1789

OPD > Library > Criminal Law Casebook > Fifth Amendment …

BasicsState v. Smith, 172 Ohio App. 3d 735, 2007-Ohio-6355 Judges comments at sentencing indicated appellant received an increased sentence because he had chosen to testify against his brother. Reversed.

Chavez v. Martinez (2003), 123 S.Ct. 1994 -- Statements compelled by police interrogation may not be used against a defendant in a criminal trial, but the Self-Incrimination Clause is not violated until such use is intended. This means at least the commencement of legal proceedings. Victim of brutal interrogation at a hospital was not prosecuted, but sought damages in a 1983 action.

Hiibel v. Sixth Judicial District Court of Nevada (2004), 124 S.Ct. 2451 -- Nevada statute requiring the subject of a Terry stop to furnish a name survives Fourth and Fifth Amendment challenges. Unlike the Texas statute in Brown v. Texas (1979), 443 U.S. 47 there has to be reasonable suspicion the subject was involved in criminal activity. Unlike the statute in Kolender v. Lawson (1983), 461 U.S. 352 requiring "credible and reliable" identification, the subject only had to provide a name. The Fifth Amendment claim is fielded by reserving for another time how to address situations where "furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense."

State v. Echols (1998), 128 Ohio App. 3d 677, 701-702 -- The Fifth Amendment right to counsel guarantee rests on not being forced to become a witness against oneself. The Sixth Amendment right to counsel is premised on the guarantee to the accused to have counsel for his defense.

Holt v. United States (1910), 218 U.S. 245 -- The Fifth Amendment does prevent a defendant being directed to put on a blouse for identification purposes. At p. 251: "...(T)he prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material."

United States v. Balsys (1998), 524 U.S. 666 -- Concern about possible prosecution in a foreign country is beyond the scope of the Fifth Amendment. Resident alien did not want to answer questions concerning WWII activities in Lithuania.

Lawn v. United States (1958), 355 U.S. 339 -- An indictment, valid on its face, is not subject to challenge on the basis that the grand jury acted on information obtained in violation of the defendant's privilege against self-incrimination. But see United States v. Calandra (1974), 414 U.S. 338 at 346: "...the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. Rather, the grand jury may override a Fifth Amendment claim only if the witness is granted immunity co-extensive with the privilege against self-incrimination. Kastigar v. United States (406 U.S. 441) Similarly, a grand jury may not compel a person to produce books and papers that would incriminate him. Boyd v. United States 116 U.S. 616, 633-635 (1886). Cf. Couch v. United States, 409 U.S. 322 (1973).

United States v. Licavoli (9th Cir. 1979), 604 F. 2d 613, 623 --Waiver of the Fifth Amendment privilege when testifying before a grand jury does not constitute waiver of the privilege at trial or in other proceedings. Also see United States v. Cain (1st Cir. 1976), 544 F. 2d 113, 117; United States v. Housand (2d Cir. 1977), 550 F. 2d 818, 821 fn. 3; United States v. Johnson (1st Cir. 1973), 488 F. 2d 1206; United States v. Lawrenson (4th Cir. 1963), 315 F. 2d 612.

Shrader v. Equitable Life (1983), 10 Ohio App. 3d 277 -- (1) A party to a civil proceeding does not waive his Fifth Amendment privilege merely by bringing the action. (2) The privilege is waived to the extent questions on direct examination are answered, though when a party is called as on cross the extent of the waiver is more narrowly defined.

Marchetti v. United States (1968), 390 U.S. 39 -- Defendant was prosecuted for failure to register and pay occupational tax on gambling proceeds. Compliance would have generated records which would have been incriminating. Fifth Amendment privilege available in these circumstances. Also see Grosso v. United States (1968), 390 U.S. 62; Shapiro v. United States (1948), 335 U.S. 1.

State v. Wardlow (1985), 20 Ohio App. 3d 1 -- Prosecution of a mother under the endangering children statute for failure to report conduct amounting to a felony violation of other portions of the statute was constitutionally defective as it would have amounted to self-incrimination.

In re Knight (1999), 135 Ohio App. 3d 172 -- Child welfare agency called mother as its first witness in a neglect case. Held to be a Fifth Amendment violation as testimony she might provide could subject her to prosecution for child endangering.

McKune v. Lile (2002), 122 S.Ct. 2017 -- Inmate brought 1983 action contending his Fifth Amendment rights were abridged by worsening the terms of confinement upon refusal to admit prior offenses as a part of a prison rehabilitation program. No violation found, even though admissions might lead to further prosecution for uncharged incidents. Admission of responsibility serves a valid penological objective. Loss of privileges deemed not to be compulsion encumbering the constitutional right. 4-1-4 decision. Four dissenters and concurring justice believe compulsion for Fifth Amendment purposes is broader than the "atypical and significant hardship" standard adopted in evaluating due process claims concerning prison conditions.

Mitchell v. United States (1999), 526 U.S. 314 -- Pursuant to Federal Rule of Criminal Procedure 11, entry of a guilty plea does not operate as a waiver of the defendant's Fifth Amendment privilege. Nor may the defendant's silence provide the basis for adverse inferences in determining factual issues at the sentencing hearing.

State v. Cook (1983), 11 Ohio App. 3d 237 -- When a potential defendant is called to testify before a grand jury, Miranda type warnings must be given. If during questioning the witness asserts his privilege against self-incrimination, that decision must be honored unless immunity is granted or an effective waiver is obtained. Grand jury testimony received from a putative defendant without such warning may not be used against him in a subsequent prosecution.

State v. Jackson (1993), 86 Ohio App. 3d 29, 31-32 -- "The right against self-incrimination applies differently depending upon whether it is the witness or the defendant who invokes the Fifth Amendment...Once the defendant has elected to waive the privilege, he may be questioned regarding all matters that were covered on direct and may be subject to searching examination for impeachment purposes...The accused may be cross-examined as to the facts in issue, including his connection with other similar transactions...Although the defendant has taken the stand, he has not entirely waived his Fifth Amendment rights...However, the mere questioning which elicits the assertion of Fifth Amendment rights is not error. Error occurs when the questioning is persistent and the answers are preordained..." (citations omitted)

State v. Taylor (1992), 80 Ohio App. 3d 601 -- At initial appearance defendant was told counsel would be appointed. Subsequently, he mistook a detective for appointed counsel and made admissions. Held that regardless of the defendant's or detective's claims concerning this contact, any interrogation once the right to counsel had been invoked was improper unless initiated by the defendant. Minnick v. Mississippi (1990), 498 U.S. 146, applied.

United States v. Kordel (1970), 397 U.S. 1 -- A corporation does not have a Fifth Amendment privilege, thought its officers and employees may exercise their privilege as individuals.

State v. Lackey (1981), 3 Ohio App. 3d 239 -- Where police officers relying on broadcast would have been entitled to conduct a Terry frisk for weapons, asking the subject first where the gun was did not violate privilege against self-incrimination.

Ohio v. Reiner (2001), 532 U.S. 17 -- A witness has a valid Fifth Amendment privilege, even though they maintain innocence of any wrongdoing. "...(T)ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth."

State v. Childress (1990), 66 Ohio App. 3d 491 -- Constitutional (Miranda type) warnings are sometimes required when a witness appears before a grand jury. Witness called before the same grand jury a second time, and charged with perjury on that basis, should have been advised of her privilege to refuse to answer questions which might further incriminate her.

State v. Dinsio (1964), 176 Ohio St. 460 -- Syllabus: "In a criminal case, where a claim of a witness that he can not be compelled to testify as a witness because of the privilege of immunity from self-incrimination is properly established, it is error prejudicial to the defendant for the court to permit counsel for the state, by continued questioning of the witness, which questions go unanswered, to get before the jury innuendoes and inferences of facts, conditions and circumstances which the state could not get before the jury by direct testimony of the witness."

State v. Kirk (1995), 72 Ohio St. 3d 564 -- The right to compulsory process is not denied when the court prevents a witness who intends to exercise his Fifth Amendment privilege from taking the stand, if that witness will exercise the privilege and offer no testimony. Columbus v. Cooper (1990), 49 Ohio St. 3d 42, limited. The defendant is entitled to a an instruction that the jury is to draw no inference from the absence of the witness because the witness was not available to either side. Also see State v. Branham (1995), 104 Ohio App. 3d 355, 360-361.

United States v. Smith (C.A.D.C. 1973), 478 F. 2d 976 -- It was improper for the prosecutor to advise a defense witness that he should confer with independent counsel before testifying to determine whether to exercise his Fifth Amendment privilege, since if he testified as indicated by others, he might be prosecuted for carrying a concealed weapon, obstructing justice and as an accessory. If advice as to the privilege was required, it should have come from the bench. Compare State v, Schaub (1976), 46 Ohio St. 2d 25.

State v. Miller (1997), 122 Ohio App. 3d 111 -- Trial court erroneously refused to allow the defendant to reopen his case when a subpoenaed witness appeared at the courthouse after the jury had been instructed, but before deliberations had begun. Though the witness indicated she would exercise her Fifth Amendment privilege to any question other than her name, the trial had evolved in such a manner that her nonappearance created strong inferences against the defense.

Griffin v. California (1965), 380 U.S. 609 -- The prosecutor may not comment upon a defendant's failure to testify as to matters which he could reasonably be expected to deny or explain. Compare Article I, Sec. 10 of the Ohio Constitution which allows the parties to comment upon the exercise of the privilege against self-incrimination by a witness. Except as applied to defendants, this continues in effect.

United States v. Robinson (1988), 485 U.S. 25 -- There is no violation of a defendant's Fifth Amendment privilege when a prosecutor's assertion in argument that the defendant could have taken the stand was a "fair response" to assertions by defense counsel that the government had unfairly denied him an opportunity to explain his actions. Also see State v. Washington (June 20, 1978), Franklin Co. App. No. 77AP-947, unreported (1978 Opinions 1619, 1627-1630); State v. Auerbach (1923), 108 Ohio St. 96; United States v. Tasto (5th Cir. 1978), 586 F. 2d 1068.

Carter v. Kentucky (1981), 450 U.S. 288 -- A defendant is entitled to a jury instruction that no adverse inferences are to be drawn from his exercise of his right not to testify. Also see State v. Fannings (1982), 1 Ohio St. 3d 19.

State v. Lane (1976), 49 Ohio St. 2d 77, 86 -- Griffin viewed as prohibiting only direct comment upon the accused's failure to testify.

State v. Neal (January 23, 1996), Franklin Co. App. No. 95APA05-542, unreported (1996 Opinions 177, 203) -- Mention in voir dire that defendant might or might not testify not found to be a Griffin violation.

Doyle v. Ohio (1976), 426 U.S. 610 -- Use of post arrest silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. For additional cases see Admissions and Confessions.

State v. Nichols (June 26, 1979), Franklin Co. App. No. 79AP-57, unreported (1979 Opinions 1699) -- It is improper to ask a defendant why he refused to sign a constitutional rights waiver form. Also see State v. Stephens (1970), 24 Ohio St. 2d 76; Gillison v. United States (1968), 399 F. 2d 586. Compare State v. Perryman (1976), 49 Ohio St. 2d 14, 20 -- Waiver made, but privilege asserted after detectives told defendant what co-conspirators had said.

State v. Saunders (1994), 98 Ohio App. 3d 355 -- Comment that the defendant did not tell the police she acted in self-defense found to be a Fifth Amendment violation. See Doyle v. Ohio (1976), 426 U.S. 610. Since was first mentioned in closing argument, do not reach issue whether or not defendant had been advised of Miranda rights before elected to remain silent. See Fletcher v. Weir (1982), 455 U.S. 603.

In re Billman (1993), 92 Ohio App. 3d 279 -- Juvenile Court dependency finding reversed and remanded where parent had been compelled to testify despite asserting her Fifth Amendment privilege.

In re Johnson (1996), 106 Ohio App. 3d 38 -- Error to permit prosecutor to ask unrepresented juvenile if he would stipulate prior conviction without first advising him of his Miranda rights.

Doe v. United States (1988), 487 U.S. 201 -- Order directing suspect to sign forms consenting to release of foreign bank documents not contrary to the Fifth Amendment. Signing was not the equivalent of testimonial communication.

Andressen v. Maryland (1976), 427 U.S. 463 -- Seizure of business records containing statements defendant had voluntarily reduced to writing was not a violation of the Fifth Amendment.

State v. Aronson (1993), 91 Ohio App. 3d 714 -- Indicted defendants successfully moved to quash grand jury subpoenas for business records of bingo operation which had not been located during the execution of search warrants. While as custodians of the records they could be compelled to produce them, the state was required to first make some showing that the requested documents were in the subpoenaed party's possession or subject to his control. Otherwise, compliance with the subpoena could amount to self-incrimination.

Schmerber v. California (1966), 384 U.S. 757 -- The Fifth Amendment privilege does not extend to the drawing of a blood sample for purposes of chemical analysis. Also see State v. Sapsford (1983), 22 Ohio App. 3d 1 (dental casts, photos, wax impressions).

South Dakota v. Neville (1983), 459 U.S. 553 -- Admission of evidence that the defendant refused to submit to a blood alcohol test did not violate the Fifth Amendment, though the defendant had only been warned that under the state's implied consent law, refusal could lead to a loss of his license. Also see State v. Starnes (1970), 21 Ohio St. 3d 38 -- Implied consent law does not violate Fourth or Fifth Amendments.

United States v. Wade (1967), 388 U.S. 218 -- Compelling an accused to participate in a lineup does not violate the privilege against self-incrimination.

Gilbert v. California (1967), 388 U.S. 263 -- Handwriting exemplars are not subject to the Fifth Amendment privilege against self-incrimination. Also see State v. Flinn (1982), 7 Ohio App. 3d 294; United States v. Mara (1973), 410 U.S. 19 (exemplar may be compelled pursuant to grand jury subpoena).

United States v. Dionisio (1973), 410 U.S. 1 -- The compelled display of identifiable physical characteristics infringes no interest protected by the Fifth Amendment. A person may be subpoenaed to appear before a grand jury and furnish a voice exemplar. Also see State v. Sutton (1979), 64 Ohio App. 2d 105.

State v. Naylor (1980), 70 Ohio App. 2d 233 -- Headnote: "Where the defendant is required to repeat, over objection, words and sentences used during the progress of a crime by one of the perpetrators of that criminal act, and where the defendant is required to speak those words and sentences in the presence of the jury for the express purpose of allowing the victim of the crime to arrive at an in-court identification of the speaker, such a requirement is violative of the defendant's rights under both the Fifth and Fourteenth Amendments to the United States Constitution."

In re Grand Jury Directive to Creager (1993), 89 Ohio App. 3d 672 -- Defendant was properly found in contempt for refusal to provide a handwriting exemplar. The privilege against self-incrimination under the Ohio Constitution is identical to that found in the Fifth Amendment.

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