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Acquittal by the Trial Judge

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Acquittal by the Trial Judge FIFTH AMENDMENT RIGHTS OF PERSONS CONTENTS Page Indictment By Grand Jury ....................................................................................................... 1473 Double Jeopardy ........................................................................................................................ 1479 Development and Scope ..................................................................................................... 1479 Reprosecution Following Mistrial ..................................................................................... 1485 Reprosecution Following Acquittal .................................................................................... 1489 Acquittal by Jury ........................................................................................................ 1491 Acquittal by the Trial Judge ...................................................................................... 1492 Trial Court Rulings Terminating Trial Before Verdict ............................................. 1493 Reprosecution Following Conviction ................................................................................. 1495 Reprosecution After Reversal on Defendant’s Appeal .............................................. 1495 Sentence Increases ...................................................................................................... 1497 “For the Same Offence” ...................................................................................................... 1499 Legislative Discretion as to Multiple Sentences ...................................................... 1499 Successive Prosecutions for “the Same Offense” ...................................................... 1502 The “Same Transaction” Problem .............................................................................. 1503 Self-Incrimination ...................................................................................................................... 1505 Development and Scope ..................................................................................................... 1505 The Power To Compel Testimony and Disclosure ............................................................ 1517 Immunity ..................................................................................................................... 1517 Required Records Doctrine ......................................................................................... 1520 Reporting and Disclosure ........................................................................................... 1521 Confessions: Police Interrogation, Due Process, and Self-Incrimination ....................... 1526 The Common Law Rule .............................................................................................. 1526 McNabb-Mallory Doctrine .......................................................................................... 1527 State Confession Cases Before Miranda ................................................................... 1528 From the Voluntariness Standard to Miranda ......................................................... 1532 Miranda v. Arizona ...................................................................................................... 1534 The Operation of the Exclusionary Rule .......................................................................... 1547 Supreme Court Review ............................................................................................... 1547 Procedure in the Trial Courts .................................................................................... 1549 Due Process ................................................................................................................................ 1550 History and Scope .............................................................................................................. 1550 Scope of the Guaranty ................................................................................................ 1552 Procedural Due Process ..................................................................................................... 1554 Generally ...................................................................................................................... 1556 Administrative Proceedings: A Fair Hearing ............................................................ 1556 Aliens: Entry and Deportation ................................................................................... 1560 Judicial Review of Administrative or Military Proceedings .................................... 1564 Substantive Due Process ................................................................................................... 1566 Discrimination ............................................................................................................. 1566 Congressional Police Measures .................................................................................. 1569 Congressional Regulation of Public Utilities ............................................................ 1570 Congressional Regulation of Railroads ...................................................................... 1570 1471 1472 AMENDMENT 5—RIGHTS OF PERSONS Due Process—Continued Substantive Due Process—Continued Taxation ........................................................................................................................ 1572 Retroactive Taxes ........................................................................................................ 1573 Deprivation of Property: Retroactive Legislation ..................................................... 1575 Bankruptcy Legislation ............................................................................................... 1577 Right to Sue the Government .................................................................................... 1579 Congressional Power to Abolish Common Law Judicial Actions ............................ 1579 Deprivation of Liberty: Economic Legislation .......................................................... 1580 National Eminent Domain Power ............................................................................................ 1580 Overview .............................................................................................................................. 1580 Public Use ........................................................................................................................... 1582 Just Compensation ............................................................................................................. 1586 Interest ......................................................................................................................... 1588 Rights for Which Compensation Must Be Made ...................................................... 1589 Consequential Damages .............................................................................................. 1592 Enforcement of Right to Compensation .................................................................... 1593 When Property Is Taken .................................................................................................... 1594 Government Activity Not Directed at the Property ................................................. 1594 Navigable Waters ........................................................................................................ 1595 Regulatory Takings ..................................................................................................... 1596 RIGHTS OF PERSONS FIFTH AMENDMENT No person shall be held to answer for a capital, or other- wise 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 pub- lic danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be com- pelled 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. INDICTMENT BY GRAND JURY The history of the grand jury is rooted in the common and civil law, extending back to Athens, pre-Norman England, and the As- size of Clarendon promulgated by Henry II.1 The right seems to have been first mentioned in the colonies in the Charter of Liberties and Privileges of 1683, which was passed by the first assembly permit- ted to be elected in the colony of New York.2 Included from the first in Madison’s introduced draft of the Bill of Rights, the provision elicited no recorded debate and no opposition. “The grand jury is an English institution, brought to this country by the early colo- nists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evi- dential rules. In fact, grand jurors could act on their own knowl- edge and were free to make their presentments or indictments on 1 Morse, A Survey of the Grand Jury System, 10 ORE. L. REV. 101 (1931).
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