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The spread of commercially available encryption products has made it harder for law enforcement officials to access to information that relates to criminal and national security investigations. In October, FBI Director Christopher Wray said that in an 11-month period, the FBI had been unable to extract data from more than 6,900 devices; that is over half of the devices it had attempted to unlock. Its a huge, huge problem, Wray said. One might think that a way around this problem is for the government to order the user to produce the password to the device. But such an order might face a big hurdle: the Fifth Amendment. A handful of cases have emerged in recent years on the applicability of the Fifth Amendment to demands for passwords to encrypted devices. The protections afforded by the amendment depend on, among other things, whether the password involves biometric verification via a unique physical feature, or the more typical string of characters (passcode). As we will see, the government has a bit more leeway under the Fifth Amendment to insist on the decryption of personal computing devices using biometric passwords thatas in the new iPhone Xare increasingly prevalent.

The Fifth Amendment

The Supreme Court recognizes the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence, but applies only when the accused is compelled to make a testimonial communication that is incriminating. For information to be testimonial, the Supreme Court has said, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information ... The expression of the contents of an individual's mind falls squarely within the protection of the Fifth Amendment.

The Fifth Amendment and Compelled Decryption: Biometric Verification vs. Passcodes

Biometric Verification

Courts are in relative accord that the Fifth Amendment doesnt protect against the production of physical features or acts. For example, the Fifth Amendment does not bar the compelled production of a persons voice, blood, handwriting or visage; although the features may be incriminating, they have no testimonial or communicative nature. Specifically, the court notes in United States v. Wade that[i]t is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. Relying on these cases, the Circuit Court of Virginia Beach and Court of Appeals of Minnesota agreed that, as with any physical feature, the government can compel a suspect to produce a biometric password. Indeed, the court in State v. Diamond held, the task that Diamond was compelled to performto provide his fingerprintis no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.

Notably, a federal district court in northern Illinois recently found that the production of a biometric password wasnt analogous to production of physical evidence. The court, citing Riley v. California, reasoned, We do not believe that a simple analogy that equates the limited protection afforded a fingerprint used for identification purposes to forced fingerprinting to unlock an Apple electronic device that potentially contains some of the most intimate details of an individual's life (and potentially provides direct access to contraband) is supported by Fifth Amendment jurisprudence. Although its reasoning is grounded in Fourth Amendment privacy concerns, the court opened the door for Fifth Amendment protections of biometric passwords. While biometric passwords are touted as more convenient, secure measures of authentication, they are less so when the government requests the production thereof.

Passcodes

In contrast to a purely physical biometric password, the Fifth Amendment offers greater protections for passcodes. Though not itself an encryption case, Fisher v. United States is the cornerstone of our understanding on how the Fifth Amendment applies to compelled production of a password. In Fisher, the IRS ordered two taxpayers to produce incriminating documents. The defendants challenged the order, claiming that the content of the documents was incriminating and therefore protected by the Fifth Amendment. The court disagreed, holding the governments request for the documents, d[id] not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers, on their face, might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. However, the court was clear: while the content was itself not protected, the act of production could be testimonial irrespective of the content. The court reasoned, [t]he act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. The court thus recognized that, in some instances, the Fifth Amendment protects the act of production.

Despite the act of production principle, the court in Fisher reasoned that [t]he existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he, in fact, has the papers. Under these circumstances ... no constitutional rights are touched. The question is not of testimony, but of surrender. This is referred to as the foregone conclusion exception to the act of production doctrine. In short, the Fifth Amendment is not implicated if the government knows of the existence, possession and authenticity of incriminating evidence, because the production thereof contains no testimonial import. Both the act of production and foregone conclusion doctrines are important to our understanding of how the Fifth Amendment protects against the compelled production of our passwords.

To date, only two federal appellate courts have applied the Fifth Amendment to compelled decryption in the context of passcodes. The Eleventh Circuit in In Re: Grand Jury Subpoena (U.S. v. Doe) held that the government cant compel a person to produce a password unless it knows the person possesses the password and knows, with reasonable particularity, that the device contains incriminating evidence. In the case, the government conducted an investigation of the defendant whom it suspected was sharing child pornography. Law enforcement executed a search warrant on his room and lawfully seized seven devices, all of which were encrypted. While the government knew the devices were the defendants, it didnt know whether any incriminating files were stored on the drives. Invoking the act of production doctrine, the court held that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files. Because the existence, possession and authenticity of the content on the device wasnt a foregone conclusion, the Fifth Amendment protected the act of producing a decrypted device. Many courts, both federal and state, agree with the Eleventh Circuits interpretation and application of the foregone conclusion doctrine. (For examples, see here, here and here.) It is worth noting that often times, as shown in U.S. v. Doe, the government employs the use of contempt orders to incentivize the compelled decryption of devices. But the efficacy of contempt sentences depends on whether the suspect is in custody and, when in custody, the suspects perceived consequences of conviction. First, if a suspect is dead, out of the country or otherwise absent, the threat of contempt is effectively useless as there is no one available to suffer the consequences of confinement. Second, even if a suspect may be held in contempt, the potential consequences of conviction may outweigh the consequences of a contempt sentence, thereby reducing the incentive to comply with an order to decrypt. For example, in U.S.v. Apple Macpro, the suspect has spent over two years in contemptand remains confined indefinitely, despite the fact that his conviction may not result in a life sentence. For this suspect and possibly many others, a contempt charge may be perceived as more lenient than the charge for the underlying crime.

A different interpretation has emerged in the Third Circuits decision in Apple Macpro. The court upheld a contempt order that was issued when the defendant refused to comply with a decryption order. The lower court applied the foregone conclusion doctrine using the Eleventh Circuits approach and ruled that because the government knew of incriminating content on the phone with reasonable particularity, there were no Fifth Amendment implications. However, while the appeals court approved, the judge also argued (in a footnote) that:

It is important to note that we are not concluding that the Governments knowledge of the content of the devices is necessarily the correct focus of the foregone conclusion inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is "I, John Doe, know the password for these devices." Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion.

Put simply, the court reasons that all the government needs to know in order to compel the production of a password is simply that the password exists, that it is in the possession of the suspect and is authentic. According to the court, when a suspect produces a password, that act is simply a narrow testimonial assertion relating only to the password, not the incriminating content on the device. To date, the Florida Court of Appeals is the only court to adopt this line of reasoning. Orin Kerr, writing on the application of the foregone conclusion doctrine, has a similar interpretation of it: To know whether entering a password implies testimony that is a foregone conclusion, the relevant question should therefore be whether the government already knows that the suspect knows the password. Commenting on Apple Macpro, Kerr notes, Its dicta, but its very strong dicta. The issue will live for another day without a circuit split. But given that I think the footnote is correct, I hope it will be followed in future cases.

Questions to Consider Concerning Evolving Password-Based Technology

Electronic device users face important questions of how secure they want their devicesand from whom. If ones primary desire is to guard against the government, biometric passwordssuch as Apples TouchID or FaceIDmay not deliver the desired protection. Apple may have a solution to address the concerns illustrated above. iPhone users can use TouchID (a fingerprint password) and, when necessary, tap the power button five times to temporarily disable the setting and return to a traditional passcode. While this has been deemed the cop button, the feature is more likely to be used in cases of emergency.

Moreover, the discussion in this post raises potential issues with password managers such as Dashlane and LastPass. These applications use fingerprint ID technology to guard dozens, if not hundreds, of the users passwords. This presents two issues. First, biometric passwords are afforded fewer constitutional protections. Second, and more importantly, the application, if accessed by the government, would present law enforcement with an entire catalog of a users character-based passcodes. The act of producing the passcodes contained in the application wouldnt require the user to produce any testimonial information and thus the traditional Fifth Amendment implications concerning the compelled production of the stored passcodes would be limited. Under the principles discussed, these types of applications may provide users the least amount of protection against the government.

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The Fifth Amendment, Decryption and Biometric Passcodes ...

Weve all read reports and seen news coverage of a witness declining to answer questions on the grounds that the responses may incriminate himhe claims the Fifth. A witness in that situation is relying on the Fifth Amendment to the United States Constitution, which provides that no person shall be compelled in any criminal case to be a witness against himself. If, by answering, the witness could provide evidence that might aid the government in prosecuting him, then he has the right to refuse.

(For another angle to this right, see Immunity From Prosecution. Also see Can one person claim the Fifth Amendment on anothers behalf?)

Witnesses can assert the privilege against self-incrimination in civil proceedings as well as criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can assert it in state or federal court, in a wide variety of proceedings (including trials, depositions, administrative law proceedings, and investigatory proceedings like grand jury hearings). But interestingly, if the witness fears exposure to prosecution in a country other than the U.S., the privilege does not apply. (United States v. Balsys, 524 U.S. 666, 672 (1998).)

Not every disclosure can be the subject of a Fifth Amendment assertiononly those that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. (Kastigar v. United States, 406 U.S. 441, 444-445 (1972).) The key word here is reasonably. Responses to questions that would be of no use to prosecutors, or that couldnt contribute to a prosecution because of the passing of the statute of limitations, cannot take refuge within the Fifth. But if the prosecution can make use of the answer itself or any evidence it might lead to, the witness is entitled to claim the privilege against self-incrimination.

Often, witnesses are involved in two cases at the same time: one civil and one criminal. For example, a witness might be called to testify before a governmental body while a criminal case against her is in the investigative stages. The witnesss lawyer will likely advise her to invoke the Fifth Amendment. Why is this a good idea?

First, because the potential consequences of a criminal proceeding (including jail or prison) are more dire than those of a civil case, a witness may be able to get a judge to stay, or postpone, the civil matter until the criminal one is concluded. Even if theres no stay, a witness is usually better off asserting the privilege if truthful answers will tend to incriminate her with respect to the criminal case.

Theres a real risk that innocent mistakes or omissions in a civil matter thats held before the completion of a criminal investigation will come back to haunt the defendant. Its even possible that a mistake in a civil proceeding will lead to a prosecution not just for the underlying criminal act, but also for being untruthful, in which case eventual charges might include obstruction of justice or even perjury.

A witness can waive the right to invoke the Fifth by later making statements about the topic in question. For example, if a witness invokes the Fifth, but goes on to selectively answer questions about the same subject matter, a judge might decide that the later answers vitiated the initial waiver. But judges are hesitant to declare the privilege waived because of its importance. For instance, a brief and general statement about ones innocence, following invocation of the Fifth, probably wont constitute a waiver.

Importantly, even if a judge finds that a person waived the privilege, that waiver will extend only to the current proceeding. A witness who answers questions subsequent to invoking the Fifth, who is ordered by a judge to continue answering based on waiver, can reassert the privilege in a later, different proceeding. For example, a defendant who waives the privilege while testifying in one case can assert it when called to testify in another.

Additionally, a witness can begin testifying but invoke the privilege when answers to later questions would be incriminating. If the prosecutor commences by asking benign questions that the witness answers (What were you wearing that night?), but moves into questions that go to the heart of the matter (How many times did you meet with the defendant?), the witness may claim the privilege.

At first blush, it might seem that whenever answers to questions might incriminate oneself, it makes sense to decline to answer. Many times claiming the Fifth is the best course of action, but there may be instances when it will do more harm than good. For example:

Yet, a witness who could claim the Fifth but is tempted to answer should first discuss the issue thoroughly with an attorney. Suppose a witness in a civil case may be able to supply credible answers that could form the basis for a strong defense against a future criminal proceeding. A prosecutor confronting these convincing, under-oath answers might decide not to file charges. Of course, if the witness fibs, omits something, or gets confused on cross-examination, she may doom herself. Thats why the guidance of a knowledgeable attorney is crucial.

The decision as to whether to invoke ones Fifth Amendment right against self-incrimination in a civil or criminal proceeding is very complicated, involving an assessment of both the facts and the relevant law in your jurisdiction. Only careful discussion and preparation with your lawyer will enable you to make a wise decision. Never head into a situation where testimony could end up hurting you without professional advice.

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Your Fifth Amendment Privilege Against Self-Incrimination ...

Three of the five clauses of the Fifth Amendment pertain to procedures that must, or must not, be used in criminal prosecutions.

Grand Jury Indictment

The first of the criminal procedure clauses requires that felony offenses in federal court be charged by grand jury indictment. (A grand jury is a panel of citizens that hears evidence that the prosecutor has against the accused, and decides if an indictment, or formal criminal charges, should be filed against them.) This is one of only a few provisions of the Bill of Rights that the Supreme Court has not held to apply to the states through the Due Process Clause of the Fourteenth Amendment (the others being the Third Amendments protection against quartering of soldiers, the Sixth Amendments requirement of trial in the district where the crime was committed, the Seventh Amendments requirement of jury trial in certain civil cases, and possibly the Eighth Amendments prohibition of excessive fines).

That the Court has been reluctant to apply the grand jury requirement to the states is unsurprising. While the origins of the grand jury are ancientan ancestor of the modern grand jury was included in the Magna Cartatoday, the United States is the only country in the world that uses grand juries. In addition to the federal government, about half the states provide for grand juriesthough in many of these there exist other ways of filing formal charges, such as a prosecutorial information followed by an adversarial but a relatively informal preliminary hearing before a judge (to make sure there is at least probable cause for the charge, the same standard of proof that a grand jury is told to apply). As early as 1884, the Supreme Court held that the grand jury is not a fundamental requirement of due process, and Justice Holmes lone dissent from that judgment has been joined by only one Justice (Douglas) in the intervening years.

Recent scholarship has upset the previous understanding that the grand jury was from its inception venerated because it was not only a sword (accusing individuals of crimes) but also a shield (against oppressive or arbitrary authority). In its early incarnation in England, the grand jury was fundamentally an instrument of the crown, obliging unpaid citizens to help enforce the Kings law. Over the centuries, the idea of a citizen check on royal prerogative became more valued. By the time of the framing of our Constitution, both the grand jury (from the French for large, in sizetoday grand juries are often composed of 24 citizens), and the petit jury (from the French for smalltoday criminal trial juries may be composed of as few as six citizens) were understood, in both Britain and the colonies, to be important bulwarks of freedom from tyranny.

Few in the modern era would espouse such a view. The former Chief Judge of the New York Court of Appeals (that states highest court) famously remarked in recent years that because prosecutors agents of the executive branchcontrol what information a grand jury hears, any grand jury today would, if requested, indict a ham sandwich. While this is a useful exaggerationthe Supreme Court has held that federal grand juries need not adhere to trial rules of evidence, or be told of evidence exculpating the defendantfew prosecutors, fortunately, are interested in indicting ham sandwiches! Rather, the greatest advantage grand juries now provide (at least in federal courts, which are not as overburdened as state courts) is allowing the prosecutor to use the grand jury as a pre-trial focus group, learning which evidence or witnesses are especially convincing, or unconvincing.

At least in federal court, grand juries are here to stay. The institution is written into the Fifth Amendment too clearly to be interpreted away. Moreover, neither pro-law enforcement forces (for obvious reasons) nor allies of those accused (because occasionally grand juries do refuse to indictin the legal parlance, returning a no true bill) have reason to urge their abolition through amendment of the Constitution.

Double Jeopardy Protections

The Fifth Amendments second procedural protection is the Double Jeopardy Clause, which provides: [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. The Clauses core purpose is straightforward: to prohibit the government from forcing a person to undergo repeated trials for the same crime. As Justice Black explained in an oft-quoted passage in Green v. United States (1957), [t]he underlying idea . . . is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense . . . .

While the Double Jeopardy Clauses underlying principle is straightforward, the Clause has spawned complex jurisprudence. The current rule, set forth in cases such as Crist v. Bretz (1978), is that jeopardy begins, or attaches, in a jury trial when the jury is empaneled and sworn. Much of the double jeopardy jurisprudence addresses circumstances in which re-prosecution is either permitted or barred after jeopardy has attached. One common situation where this question arises is when the government seeks a retrial after a mistriala trial terminated before a final judgment is reached. If the defendant consented to the mistrial, retrial is permitted. But an early Supreme Court case, United States v. Perez (1824), established that even without consent, the defendant may be retried as long as declaring a mistrial was a manifest necessity. In Perez, the manifest necessity was a hung jurya jury that could not agree upon a verdict. While the term necessity might imply a nearly impossible burden for a retrial, the Supreme Court has been fairly generous in recognizing such circumstances. On the other hand, retrial is not permitted after an acquittal, a finding that the defendant is not guilty. Although it has not addressed the rare situation where a jury has been bribed, the Supreme Court has made clear that the Double Jeopardy Clause flatly bars re-prosecution for the same offense. Controversially, this absolute bar applies even where the acquittal was the result of erroneous trial court rulings. (As a result, in federal and most state courts, the prosecution is able to take an immediate appeal of a pre-trial ruling suppressing evidence, before the jury is empaneled and jeopardy attaches.) To justify this approach, the Court has drawn analogies to the common law plea of autrefois acquit (formerly acquitted) and expressed concern that the Government, with its superior resources, not be permitted to wear down a defendant.

The rules for re-prosecution following a conviction are different. An 1896 decision, Ball v. United States, recognized an exception to the general prohibition against re-prosecuting someone who has already been convicted: when the convicted person has managed through an appeal to overturn the conviction (on grounds other than insufficiency of evidence, which is equivalent to an acquittal by the appellate court). In later decisions, the Court has explained that this exception rests on considerations related to the sound administration of justice. Society should not have to bear the burden of having a guilty defendant set free because a conviction is overturned for procedural error, such as erroneously admitted evidence or faulty jury instructions. And defendants, too, may benefit, as appellate courts might not zealously protect against errors if the price of reversal is irrevocably setting a defendant free.

To the general public, perhaps the most mysterious line of double jeopardy jurisprudence is the dual sovereignty doctrine. Under this doctrine, a defendant can be prosecuted twice for what appears to be the same crimeonce by federal authorities and once by state authorities, or even by two different states if they both have jurisdiction over the criminal conduct. In the Rodney King case, for instance, Los Angeles police officers were re-prosecuted for the beating of Rodney King and convicted of federal civil rights violations after having been acquitted in state court of the same beating. In such situations, the Courts theory has been that a defendant is not being prosecuted twice for the same offence, but rather for separate offenses against the peace and dignity of both sovereigns and thus may be punished by both. Strong policy arguments can be made in favor of the Courts interpretation, as it prevents, for instance, a state from barring federal civil rights charges through bungling (or, worse, sabotaging) the initial state prosecution. Likewise, a person who has committed a serious crime will not be able to effectively immunize herself against prosecution by another sovereign for that offense by convincing local or state officials to let her quickly plead guilty to a minor, lesser offense.

As a matter of original meaning, however, the Courts dual sovereignty jurisprudence is highly questionable. When the Bill of Rights was adopted, the double jeopardy principle was understood as providing inter-sovereign protection. The dual sovereignty doctrine may illustrate a situation where an original meaning interpretation of the Constitution provides greater protection for criminal defendants than does a more policy based approach. In addition, one might argue that the Fourteenth Amendment, understood to have applied double jeopardy protections against the states, also is a source of authority for the federal government to vindicate civil rights by means of re-prosecution in situations like the Rodney King casebut this would not justify the Courts allowance of dual state prosecutions.

Privilege Against Compelled Self-Incrimination

The third procedural protection in the Fifth Amendment is the right not to be compelled in any criminal case to be a witness against oneself. This right is often referred to as the Fifth Amendment Privilege or, more colloquially, as the right to take the Fifth. The Supreme Court has many times affirmed the most natural understanding of these words: the defendant in a criminal case cannot be compelled to testifythat is, she cant be called to the stand and thereafter be held in contempt of court (usually leading to immediate imprisonment) if she refuses to answer questions relevant to the charges against her.

But over the years, the Court has read into these words many additional rights, both inside the criminal courtroom and in settings far removed from criminal court. In Griffin v. California (1965) the Court struck down a California rule of evidence that allowed the jury in a criminal case to consider as evidence of guilt the defendants failure to testifyhis silence in the face of the evidence the prosecution had introduced against him. The reasoning was that if the jury could draw a negative inference from the defendants silence, this could induce a defendant who preferred not to testify to decide nonetheless to take the stand, at least where the defendant thought that his testimony would be less damaging than his complete silence. While knowing that the jury could draw a negative inference is not being legally compelled in the way that being held in contempt is, the Court implied that the true purpose of the Fifth Amendment Privilege is not only to protect a criminal defendant from compelled self-incrimination, but also to ensure that no one is made worse off by asserting the Fifth than by not asserting it.

The idea that taking the Fifth should not lead to any penalty took hold in settings outside the criminal courtroom as well. In a series of cases in the late 1960s and 1970s, the Supreme Court held that the government as employer may not condition continued employment on cooperation in the investigation of possible violations of its policies (though private employers routinely do this without any constitutional limitation). For instance, in Gardner v. Broderick (1968), the New York City Police Department was held to have violated the Fifth Amendment rights of a police officer when it fired him after he refused to waive the Privilege and testify before a grand jury that was investigating police corruption. Many observers think the better approach in these cases would have been to hold that continued public employment (or an occupational license) may be conditioned on providing pertinent information (after all, there is no constitutional right to be a police officer or a licensed attorney), but that the individual has a right to assert the Privilege in any governmental investigation related to her public employment or occupational license.

Indeed, it has long been understood that the Fifth Amendment Privilege can be asserted by any witness (not just the defendant) in a criminal trial, and by any witness in a civil trial, grand jury, legislative hearing, or other government proceeding. In effect, the words in any criminal case in the Fifth Amendment have been understood not to refer to the type of proceeding where the Privilege may be asserted, but as short-hand for the idea that a witness should not be required to give responses that could be used against him in a present or future criminal case. Given its broad applicability, the Privilege is commonly referred to as the right against compelled self-incrimination. Importantly, however, whereas the jury in a criminal case cant hold the defendants failure to testify against her in any way (according to Griffin), the fact-finders in these other settings are permitted to draw a negative inference from the witnesss assertion of the Privilege. While the Privilege may thus be invoked by any witness, the government can defeat the Privilege and require that the witness testify (under pain of contempt) by granting the witness immunity. Except for a perjury prosecution, neither the witnesss immunized statements nor any evidence deriving from those statements may be admitted against her in a criminal prosecution. Kastigar v. United States (1972).

The most important, and controversial, decision applying the Fifth Amendment Privilege outside the criminal trial is Miranda v. Arizona (1966). In order to protect criminal suspects from not only physical brutality but also informal compulsion that is inherent in custodial interrogation, the Supreme Court in Miranda devised a set of warnings that the police must give before custodial questioning takes place. The individual must be told that she has a right to remain silent, that any statements she makes may be used against her, and that she has the right to have an attorney present during questioning, including the right to a court-appointed attorney if she cannot afford one. The Court recognized that an individual could knowingly and intelligently waive these rights. Critically, the Court fashioned an exclusionary rule to enforce the right to Miranda warnings: unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against the defendant at trial.

Some heralded Miranda as a better way to regulate police interrogations than the due process approach the Supreme Court had forged during the previous three decades. In Brown v. Mississippi (1936), a deputy sheriff leading a mob of white men had obtained confessions from two black defendants by sustained and brutal lashings using a leather strap with buckles on it. This clearly constituted compulsion, but the Fifth Amendment Privilege had not yet been applied against the states though the Fourteenth Amendments Due Process Clause. (That would not come until Malloy v. Hogan (1964).) So the Court invoked the Due Process Clause directly, holding that confessions were involuntary and their admission at the mens trial violated their due process rights. In the view of some justices, however, the subjective totality of the circumstances test the Court developed to determine whether a defendants confession was involuntary was unwieldy. And it provided murky guidance for both lower courts and law enforcement, especially in cases with no physical coercion. Miranda, in the view of its supporters, seemed to provide a clear line-in-the-sand for everyone. Although the Court made clear that even if Miranda was followed, a confession might be inadmissible on due process/voluntariness grounds, in fact both the Supreme Court and lower courts have tended to consider a statement presumptively voluntary if made after waiver of Miranda rights.

Miranda was controversial for many reasons. The most serious charge was that whether or not the warnings were good policy, the decision was illegitimate: the Court had just made up a new rule, nowhere found in the Constitution. To be sure, there is much circumstantial evidence that the Fifth Amendment Privilege was adopted in part to constitutionalize a common-law maxim that both British citizens and their American counterparts thought fundamental: nemo tenetur prodere seipsum (no one is bound to accuse himself). In the late eighteenth century, this was understood to forbid extracting confessions by means of physical or spiritual coercion; the latter consisted of forcing a person to take an oath to God and state the truthundoubtedly coercive in a highly religious society. But nearly two centuries later the Supreme Court was saying that the Fifth Amendment also prohibited the assertedly inherent coercion that exists in routine station-house questioning, unless Mirandas warnings are given and waived. Most pointedly, the warnings themselves looked more like legislative rule-making than constitutional interpretation. The Court, in Miranda and two other cases decided shortly before Miranda, seemed bent on reducing, if not eliminating, an important tool of evidence-gathering in criminal casesquestioning the defendant upon arrest. After all, who wouldnt leap at the chance to have a lawyer before dealing with the police? And no lawyer would allow a client to submit to immediate questioning, as all of the justices knew.

In fact, Miranda has not prevented people from making incriminating station-house statements, as initially some of its detractors had feared and some of its supporters had anticipated. It appears to be an aspect of human nature that many recently accused persons are eager to talk their way out of trouble. Mirandas critics, however, believe that Miranda has noticeably reduced the number of confessions by allowing suspects to lawyer up rather than face questioning; while Mirandas supporters contend that any reduction in confessions is quite modest, and note that police officers have learned to live with the decision.

In a series of subsequent decisions, the Supreme Court gave further ammunition to those who considered Miranda to be nothing more than judicial legislation, by creating exceptions to the broad exclusionary rule the decision had announced. In Harris v. New York (1971), the Court held that even if Miranda was violated, any voluntary statements could be admitted to attack the defendants credibility if the defendant took the stand. In New York v. Quarles (1974), the Court held admissible the defendants statement, obtained without Miranda warnings, as to where he had hidden his gun in a supermarket, because of the public safety need to secure the weapon immediately. Quarles created a potentially large loophole and undercut the constitutional basis for Miranda, as the Court said that there was no actual coercion in that case even though Miranda warnings werent given. That same year, the Court held in Michigan v. Tucker (1974) that Mirandas exclusionary rule applied only to the defendants statements, not to testimony by other witnesses whom the police discovered on the basis of the defendants statements. Ten years later the Court held that that statements elicited in violation of Miranda could be used in deportation proceedings. The Court also cast doubt on the scope of the right to remain silent, holding in Fletcher v. Weir (1982) that states could adopt rules allowing the defendants silence after arrest but before receiving Miranda warnings, to be used to attack his credibility.

It appeared to many that Miranda would in due course be overturned. Quarles had referred to Miranda warnings as merely prophylactic, and Tucker had conceded that the warnings were not themselves rights protected by the Constitution. In 1999, the Fourth Circuit agreed with the latter statement, and applied a little-noticed statute that Congress had enacted in 1968 in response to Miranda, under which a confession . . . shall be admissible in evidence [in federal court] if it is voluntarily given. 18 U.S.C. 3501(a). The Supreme Court reversed, 7-2, holding that Congress was without authority to enact 3501(a); despite language in Quarles and Tucker, Miranda had indeed announced a constitutional rule. Dickerson v. United States (2000).

Even in the wake of Dickerson, however, the scope and status of Miranda remain unclear. In Chavez v. Martinez (2003), four justices squarely held that violation of Miranda is not a violation of the Fifth Amendment Privilege, which only prohibits the government from admitting compelled statements in a subsequent prosecution of the suspect. Two other justices, concurring, distinguished between this core prohibition and extensions such as Miranda. The Court has also further cut back on Mirandas exclusionary rule, holding in United States v. Patane (2004) that as long as the defendants statements were voluntary, any physical fruits of them are admissible. And in Salinas v. Texas (2013), the Court further equivocated on the right to silence: it was proper to admit the defendants silence during police questioning that took place when the defendant was not in police custody, despite the absence of Miranda warnings, and the defendant had waived the Privilege by failing to affirmatively assert it.

Mirandas future remains uncertain. While the waiver and warning requirement has seemingly become entrenched in American police practices, the decisions approach to regulating police questioning still draws fire from all quarters. Critics of police questioning believe that the Miranda line of cases does not go far enough, because it has permitted psychological tricks and other aggressive tactics so long as an officer obtains a Miranda waiver at the start. Supporters of broader questioning counter that Miranda is perverse public policy, since career criminals are most likely to lawyer up while the vulnerable and the innocent are most likely to waive their Miranda rights. As a result, considerable interest remains in alternatives (or supplements) to Miranda, such as a requirement that police officers record interrogation sessions.

Paul Cassell Ronald N. Boyce Presidential Professor of Criminal Law, College Of Law, University of Utah Kate Stith Lafayette S. Foster Professor of Law at Yale Law School

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Amendment V - The United States Constitution

Twenty-fifth Amendment, amendment (1967) to the Constitution of the United States that set forth succession rules relating to vacancies and disabilities of the office of the president and of the vice president. It was proposed by the U.S. Congress on July 6, 1965, and it was ratified on Feb. 10, 1967.

While the first section of the Twenty-fifth Amendment codified the traditionally observed process of succession in the event of the death of the presidentthat the vice president would succeed to the officeit also introduced a change regarding the ascent of the vice president to president should the latter resign from office. In the event of resignation, the vice president would assume the title and position of presidentnot acting presidenteffectively prohibiting the departing president from returning to office.

The second section of the amendment addresses vacancies in the office of the vice president. Traditionally, when the office of vice president was vacant, usually through the vice presidents succession to the presidency following the death of the president, the office of vice president stood vacant until the next election. Through the Twenty-fifth Amendment, the president would nominate a vice president, who would be subject to confirmation by the U.S. Congress. Only a few years after the amendments ratification, this section was put into effect. In 1973 Spiro Agnew resigned as Pres. Richard M. Nixons vice president, and Nixon subsequently selected Gerald R. Ford, who was then serving as minority leader in the House of Representatives, to serve as vice president. Despite the fact that Nixon and Ford were Republicans and the Democrats retained majorities in both the House and the Senate, Ford was easily confirmed, which indicated that the process would focus less on policy positions than a general fitness for office. Ford assumed the duties of vice president on Dec. 6, 1973, and upon Nixons resignation from office to avoid impeachment, Ford became the first president to accede to office according to the Twenty-fifth Amendment on Aug. 9, 1974. Had the Twenty-fifth Amendment not been in effect, Nixon would not have been able to replace Agnew, and it remains speculative whether Nixon would have resigned prior to impeachment and a trial and thus enabled the Democratic speaker of the House of Representatives to become president under the Presidential Succession Act of 1947.

The third section of the amendment set forth the formal process for determining the capacity of the president to discharge the powers and duties of office. It assumes that the president has the presence of mind and physical ability to produce a written statement formally notifying the president pro tempore of the Senate and the speaker of the House of such circumstances, which would result in the vice presidents temporarily serving as acting president. In the event that a president may be unable to declare his inability to discharge the powers and duties of office, the fourth section of the amendment requires such determinations to be made jointly by the vice president and the cabinet, with the vice president immediately assuming the position of acting president.

Prior to the passage of the amendment, nine presidentsWilliam Henry Harrison, Zachary Taylor, Abraham Lincoln, James Garfield, William McKinley, Woodrow Wilson, Warren G. Harding, Franklin D. Roosevelt, and Dwight D. Eisenhowerexperienced health crises that left them temporarily incapacitated, with death resulting in six cases (Harrison, Taylor, Lincoln, Garfield, McKinley, and Harding). After the passage of the amendment, Pres. Ronald Reagan was incapacitated for some 24 hours while undergoing surgery for a gunshot wound resulting from a failed assassination attempt, though no official designation of presidential responsibility was ever made. Indeed, this portion of the Twenty-fifth Amendment has never been invoked.

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The full text of the amendment is:

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

Section 2Whenever 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 3Whenever 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 4Whenever 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 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.

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Twenty-fifth Amendment | United States 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 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.

The final phrases of the Fifth Amendment established the limitations on the principle of eminent domain. In the 20th century, the Fifth Amendment became most noted for its prohibition of forced self-incriminating testimony, and "I plead the Fifth" became a catchphrase for the amendment.

This application of the amendment is, however, uncontroversial and has not figured prominently in Supreme Court decisions. Much less clear is the meaning of the due process provision. A century ago, it was often argued that the Fifth Amendment prohibition against depriving an individual of liberty meant that the right to enter into contracts, which represents a liberty, is infringed when government regulations fix such things as minimum wages. This interpretation of due process has generally fallen out of favor.

Ratified in 1791

See Table of Amendments.

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What Does the Sixth Amendment Mean? To Whom Does it Apply?, Gideon v. Wainwright, Landmark Supreme Court CasesHe thought that amendment was one of the most important amendments. Others disagreed with him, arguing that because many state constitutions had their own Bills of Rights, it would not be necessary to protect citizens from abuse at the hands of ...http://www.landmarkcases.org/gideon/sixth.html

ARTICLE VState, 99 Nev. 149, at 150, 659 P.2d 878 (1983), State v. Eighth Judicial Dist. Court, 100 Nev. 90, at 104, 677 P.2d 1044 (1984), dissenting opinion, Kelch v. Director, Dept of Prisons, 10 F.3d 684, at 686 (9th Cir. 1993), Wicker v. State, 111 Nev. http://www.nevada-history.org/article_5.html

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Amendment V - United States American History