[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Fifth Amendment - Rights of Persons]
[From the U.S. Government Printing Office, www.gpo.gov]



[[Page 1271]]


 
                             FIFTH AMENDMENT

                               __________

                            RIGHTS OF PERSONS

                               __________

 
                                CONTENTS

                                                                    Page
        Indictment by Grand Jury..................................  1273
        Double Jeopardy...........................................  1279
        Development and Scope.....................................  1279
        Reprosecution Following Mistrial..........................  1284
        Reprosecution Following Acquittal.........................  1288
                Acquittal by Jury.................................  1290
                Acquittal by the Trial Judge......................  1290
                Trial Court Rulings Terminating Trial Before 
                    Verdict.......................................  1291
        Reprosecution Following Conviction........................  1293
                Reprosecution After Reversal on Defendant's Appeal  1293
                Sentence Increases................................  1295
        ``For the Same Offence''..................................  1297
                Legislative Discretion as to Multiple Sentences...  1297
                Successive Prosecutions for ``The Same Offense''..  1299
                The ``Same Transaction'' Problem..................  1301
        Self-Incrimination........................................  1302
        Development and Scope.....................................  1302
        The Power to Compel Testimony and Disclosure..............  1312
                Immunity..........................................  1312
                Required Records Doctrine.........................  1315
                Reporting and Disclosure..........................  1317
        Confessions: Police Interrogation, Due Process, and Self-
            Incrimination.........................................  1321
                The Common Law Rule...............................  1322
                McNabb-Mallory Doctrine...........................  1323
                State Confession Cases............................  1324
                From the Voluntariness Standard to Miranda........  1327
                Miranda v. Arizona................................  1330
        The Operation of the Exclusionary Rule....................  1340
                Supreme Court Review..............................  1340
                Procedure in the Trial Courts.....................  1341
        Due Process...............................................  1343
        History and Scope.........................................  1343
                Scope of the Guaranty.............................  1344
        Procedural Due Process....................................  1347
                Generally.........................................  1348
                Administrative Proceedings: A Fair Hearing........  1348
                Aliens: Entry and Deportation.....................  1352
                Judicial Review of Administrative Proceedings.....  1354
        Substantive Due Process...................................  1356
                Discrimination....................................  1356
                Congressional Police Measures.....................  1359
                Congressional Regulation of Public Utilities......  1359
                Congressional Regulation of Railroads.............  1360

[[Page 1272]]

                Taxation..........................................  1361
                Retroactive Taxes.................................  1363
                Deprivation of Property: Retroactive Legislation..  1364
                Bankruptcy Legislation............................  1366
                Right to Sue the Government.......................  1367
                Congressional Power to Abolish Common Law Judicial 
                    Actions.......................................  1368
                Deprivation of Liberty: Economic Legislation......  1368
        National Eminent Domain Power.............................  1369
                Overview..........................................  1369
                Public Use........................................  1371
                Just Compensation.................................  1374
                        Interest..................................  1376
                        Rights for Which Compensation Must Be Made  1377
                        Consequential Damages.....................  1378
                        Enforcement of Right to Compensation......  1379
                When Property Is Taken............................  1380
                        Government Activity Not Directed at the 
                            Property..............................  1380
                        Navigable Waters..........................  1382
                        Regulatory Takings........................  1382



[[Page 1273]]
                             FIFTH AMENDMENT

 
                            RIGHTS OF PERSONS

                               __________


  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.
 
                        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 Assize 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 permitted 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 colonists 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 evidential rules. In fact, grand jurors 
could act on their own knowledge and were free to make their 
presentments

[[Page 1274]]
or indictments on such information as they deemed satisfactory. Despite 
its broad power to institute criminal proceedings the grand jury grew in 
popular favor with the years. It acquired an independence in England 
free from control by the Crown or judges. Its adoption in our 
Constitution as the sole method for preferring charges in serious 
criminal cases shows the high place it held as an instrument of justice. 
And in this country as in England of old the grand jury has convened as 
a body of laymen, free from technical rules, acting in secret, pledged 
to indict no one because of prejudice and to free no one because of 
special favor.''\3\

        \1\Morse, A Survey of the Grand Jury System, 10 Ore. L. Rev. 101 
(1931).
        \2\1 Bernard Schwartz, The Bill of Rights: A Documentary History 
162, 166 (1971). The provision read: ``That in all Cases Capitall or 
Criminall there shall be a grand Inquest who shall first present the 
offence. . . .''
        \3\Costello v. United States, 350 U.S. 359, 362 (1956). ``The 
grand jury is an integral part of our constitutional heritage which was 
brought to this country with the common law. The Framers, most of them 
trained in the English law and traditions, accepted the grand jury as a 
basic guarantee of individual liberty; notwithstanding periodic 
criticism, much of which is superficial, overlooking relevant history, 
the grand jury continues to function as a barrier to reckless or 
unfounded charges . . . . Its historic office has been to provide a 
shield against arbitrary or oppressive action, by insuring that serious 
criminal accusations will be brought only upon the considered judgment 
of a representative body of citizens acting under oath and under 
judicial instruction and guidance.'' United States v. Mandujano, 425 
U.S. 564, 571 (1976) (plurality opinion). See id. at 589-91 (Justice 
Brennan concurring).
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        The prescribed constitutional function of grand juries in 
federal courts\4\ is to return criminal indictments, but the juries 
serve a considerably broader series of purposes as well. Principal among 
these is the investigative function, which is served through the fact 
that grand juries may summon witnesses by process and compel testimony 
and the production of evidence generally. Operating in secret, under the 
direction but not control of a prosecutor, not bound by many evidentiary 
and constitutional restrictions, such juries may examine witnesses in 
the absence of their counsel and without informing them of the object of 
the investigation or the place of the witnesses in it.\5\ The 
exclusionary rule is inapplicable

[[Page 1275]]
in grand jury proceedings, with the result that a witness called before 
a grand jury may be questioned on the basis of knowledge obtained 
through the use of illegally-seized evidence.\6\ In thus allowing the 
use of evidence obtained in violation of the Fourth Amendment, the Court 
nonetheless restated the principle that, while free of many rules of 
evidence that bind trial courts, grand juries are not unrestrained by 
constitutional consideration.\7\ A witness called before a grand jury is 
not entitled to be informed that he may be indicted for the offense 
under inquiry\8\ and the commission of per

[[Page 1276]]
jury by a witness before the grand jury is punishable, irrespective of 
the nature of the warning given him when he appears and regardless of 
the fact that he may already be a putative defendant when he is 
called.\9\

        \4\This provision applies only in federal courts and is not 
applicable to the States, either as an element of due process or as a 
direct command of the Fourteenth Amendment. Hurtado v. California, 110 
U.S. 516 (1884); Palko v. Connecticut, 302 U.S. 319, 323 (1937); 
Alexander v. Louisiana, 405 U.S. 625, 633 (1972).
        \5\Witnesses are not entitled to have counsel present in the 
room. Fed. R. Civ. P. 6(d). The validity of this restriction was 
asserted in dictum in In re Groban, 352 U.S. 330, 333 (1957), and 
inferentially accepted by the dissent in that case. Id. at 346-47 
(Justice Black, distinguishing grand juries from the investigative 
entity before the Court). The decision in Coleman v. Alabama, 399 U.S. 1 
(1970), deeming the preliminary hearing a ``critical stage of the 
prosecution'' at which counsel must be provided, called this rule in 
question, inasmuch as the preliminary hearing and the grand jury both 
determine whether there is probable cause with regard to a suspect. See 
id. at 25 (Chief Justice Burger dissenting). In United States v. 
Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion), Chief Justice 
Burger wrote: ``Respondent was also informed that if he desired he could 
have the assistance of counsel, but that counsel could not be inside the 
grand jury room. That statement was plainly a correct recital of the 
law. No criminal proceedings had been instituted against respondent, 
hence the Sixth Amendment right to counsel had not come into play.'' By 
emphasizing the point of institution of criminal proceedings, relevant 
to the right of counsel at line-ups and the like, the Chief Justice not 
only reasserted the absence of a right to counsel in the room but also, 
despite his having referred to it, cast doubt upon the existence of any 
constitutional requirement that a grand jury witness be permitted to 
consult with counsel out of the room, and, further, raised the 
implication that a witness or putative defendant unable to afford 
counsel would have no right to appointed counsel. Concurring, Justice 
Brennan argued that it was essential and constitutionally required for 
the protection of one's constitutional rights that he have access to 
counsel, appointed if necessary, accepting the likelihood, without 
agreeing, that consultation outside the room would be adequate to 
preserve a witness' rights, Id. at 602-09 (with Justice Marshall). 
Justices Stewart and Blackmun reserved judgment. Id. at 609. The dispute 
appears ripe for revisiting.
        \6\United States v. Calandra, 414 U.S. 338 (1974). The Court has 
interpreted a provision of federal wiretap law, 18 U.S.C. Sec. 2515, to 
prohibit utilization of unlawful wiretap information as a basis for 
questioning witnesses before grand juries. Gelbard v. United States, 408 
U.S. 41 (1972).
        \7\``Of course, the grand jury's subpoena is not unlimited. It 
may consider incompetent evidence, but it may not itself violate a valid 
privilege, whether established by the Constitution, statutes, or the 
common law . . . . Although, for example, an indictment based on 
evidence obtained in violation of a defendant's Fifth Amendment 
privilege is nevertheless valid . . . , the grand jury may not force a 
witness to answer questions in violation of that constitutional 
guarantee. . . . Similarly, a grand jury may not compel a person to 
produce books and papers that would incriminate him. . . . The grand 
jury is also without power to invade a legitimate privacy interest 
protected by the Fourth Amendment. A grand jury's subpoena duces tecum 
will be disallowed if it is `far too sweeping in its terms to be 
regarded as reasonable under the Fourth Amendment.' Hale v. Henkel, 201 
U.S. 43, 76 (1906). Judicial supervision is properly exercised in such 
cases to prevent the wrong before it occurs.'' United States v. 
Calandra, 414 U.S. 338, 346 (1974). See also United States v. Dionisio, 
410 U.S. 1, 11-12 (1973). Grand juries must operate within the limits of 
the First Amendment and may not harass the exercise of speech and press 
rights. Branzburg v. Hayes, 408 U.S. 665, 707-08 (1972). Protection of 
Fourth Amendment interests is as extensive before the grand jury as 
before any investigative officers, Silverthorne Lumber Co. v. United 
States, 251 U.S. 385 (1920) (now highly qualified as to its scope, 
supra, p. 1265); Hale v. Henkel, 201 U.S. 43, 76-77 (1920), but not more 
so either. United States v. Dionisio, 410 U.S. 1 (1973) (subpoena to 
give voice exemplars); United States v. Mara, 410 U.S. 19 (1973) 
(handwriting exemplars). The Fifth Amendment's self-incrimination clause 
must be respected. Blau v. United States, 340 U.S. 159 (1950); Hoffman 
v. United States, 341 U.S. 479 (1951). On common-law privileges, see 
Blau v. United States, 340 U.S. 332 (1951) (husband-wife privilege); 
Alexander v. United States, 138 U.S. 353 (1891) (attorney-client 
privilege). The traditional secrecy of grand jury proceedings has been 
relaxed a degree to permit a limited discovery of testimony. Compare 
Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959), with 
Dennis v. United States, 384 U.S. 855 (1966). See Fed. R. Crim. P. 6(e) 
(secrecy requirements and exceptions).
        \8\United States v. Washington, 431 U.S. 181 (1977). Because 
defendant when he appeared before the grand jury was warned of his 
rights to decline to answer questions on the basis of self-
incrimination, the decision was framed in terms of those warnings, but 
the Court twice noted that it had not decided, and was not deciding, 
``whether any Fifth Amendment warnings whatever are constitutionally 
required for grand jury witnesses. . . .'' Id. at 186, 190.
        \9\United States v. Mandujano, 425 U.S. 564 (1976); United 
States v. Wong, 431 U.S. 174 (1977). Mandujano had been told of his 
right to assert the privilege against self-incrimination, of the 
consequences of perjury, and of his right to counsel, but not to have 
counsel with him in the jury room. Chief Justice Burger and Justices 
White, Powell, and Rehnquist took the position that no Miranda warning 
was required because there was no police custodial interrogation and 
that in any event commission of perjury was not excusable on the basis 
of lack of any warning. Justices Brennan, Marshall, Stewart, and 
Blackmun agreed that whatever rights a grand jury witness had, perjury 
was punishable and not to be excused. Id. at 584, 609. Wong was assumed 
on appeal not to have understood the warnings given her and the opinion 
proceeds on the premise that absence of warnings altogether does not 
preclude a perjury prosecution.
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        Of greater significance were two cases in which the Court held 
the Fourth Amendment to be inapplicable to grand jury subpoenas 
requiring named parties to give voice exemplars and handwriting samples 
to the grand jury for identification purposes.\10\ According to the 
Court, the issue turned upon a two-tiered analysis--''whether either the 
initial compulsion of the person to appear before the grand jury, or the 
subsequent directive to make a voice recording is an unreasonable 
`seizure' within the meaning of the Fourth Amendment.''\11\ First, a 
subpoena to appear was held not to be a seizure, because it entailed 
significantly less social and personal affront than did an arrest or an 
investigative stop, and because every citizen has an obligation, which 
may be onerous at times, to appear and give whatever aid he may to a 
grand jury.\12\ Second, the directive to make a voice recording or to 
produce handwriting samples did not bring the Fourth Amendment into play 
because no one has any expectation of privacy in the characteristics of 
either his voice or his handwriting.\13\ Inasmuch as the Fourth 
Amendment was inapplicable, there was no necessity for the government to 
make a preliminary showing of the reasonableness of the grand jury 
requests.

        \10\United States v. Dionisio, 410 U.S. 1 (1973); United States 
v. Mara, 410 U.S. 19 (1973).
        \11\Id. at 9.
        \12\Id. at 9-13.
        \13\Id. at 13-15. The privacy rationale proceeds from Katz v. 
United States, 389 U.S. 347 (1967).
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        Besides indictments, grand juries may also issue reports which 
may indicate nonindictable misbehavior, mis- or malfeasance of

[[Page 1277]]
public officers, or other objectionable conduct.\14\ Despite the vast 
power of grand juries, there is little in the way of judicial or 
legislative response designed to impose some supervisory restrictions on 
them.\15\

        \14\The grand jury ``is a grand inquest, a body with powers of 
investigation and inquisition, the scope of whose inquiries is not to be 
limited narrowly by questions of propriety or forecasts of whether any 
particular individual will be found properly subject to an accusation of 
crime.'' Blair v. United States, 250 U.S. 273, 281 (1919). On the 
reports function of the grand jury, see In re Grand Jury January, 1969, 
315 F. Supp. 662 (D. Md. 1970), and Report of the January 1970 Grand 
Jury (Black Panther Shooting) (N.D. Ill., released May 15, 1970). 
Congress has now specifically authorized issuance of reports in cases 
concerning public officers and organized crime. 18 U.S.C. Sec. 333.
        \15\Congress has required that in the selection of federal grand 
juries, as well as petit juries, random selection of a fair cross 
section of the community is to take place, and has provided a procedure 
for challenging discriminatory selection by moving to dismiss the 
indictment. 28 U.S.C. Sec. Sec. 1861-68. Racial discrimination in 
selection of juries is constitutionally proscribed in both state and 
federal courts. Infra, pp.1854-57.
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        Within the meaning of this article a crime is made ``infamous'' 
by the quality of the punishment which may be imposed.\16\ ``What 
punishments shall be considered as infamous may be affected by the 
changes of public opinion from one age to another.''\17\ Imprisonment in 
a state prison or penitentiary, with or without hard labor,\18\ or 
imprisonment at hard labor in the workhouse of the District of 
Columbia,\19\ falls within this category. The pivotal question is 
whether the offense is one for which the court is authorized to award 
such punishment; the sentence actually imposed is immaterial. When an 
accused is in danger of being subjected to an infamous punishment if 
convicted, he has the right to insist that he shall not be put upon his 
trial, except on the accusation of a grand jury.\20\ Thus, an act which 
authorized imprisonment at hard labor for one year, as well as 
deportation, of Chinese aliens found to be unlawfully within the United 
States, created an offense which could be tried only upon 
indictment.\21\ Counterfeiting,\22\ fraudulent alteration of poll 
books,\23\ fraudulent voting,\24\ and embezzlement,\25\ have been 
declared to be infamous crimes. It is immaterial how Congress has 
classified the offense.\26\ An act punishable by a fine of not more than 
$1,000 or imprisonment for not more than six

[[Page 1278]]
months is a misdemeanor, which can be tried without indictment, even 
though the punishment exceeds that specified in the statutory definition 
of ``petty offenses.''\27\

        \16\Ex parte Wilson, 114 U.S. 417 (1885).
        \17\Id. at 427.
        \18\Mackin v. United States, 117 U.S. 348, 352 (1886).
        \19\United States v. Moreland, 258 U.S. 433 (1922).
        \20\Ex parte Wilson, 114 U.S. 417, 426 (1885).
        \21\Wong Wing v. United States, 163 U.S. 228, 237 (1896).
        \22\Ex parte Wilson, 114 U.S. 417 (1885).
        \23\Mackin v. United States, 117 U.S. 348 (1886).
        \24\Parkinson v. United States, 121 U.S. 281 (1887).
        \25\United States v. DeWalt, 128 U.S. 393 (1888).
        \26\Ex parte Wilson, 114 U.S. 417, 426 (1885).
        \27\Duke v. United States, 301 U.S. 492 (1937).
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        A person can be tried only upon the indictment as found by the 
grand jury, and especially upon its language found in the charging part 
of the instrument.\28\ A change in the indictment that does not narrow 
its scope deprives the court of the power to try the accused.\29\ While 
additions to offenses alleged in an indictment are prohibited, the Court 
has now ruled that it is permissible ``to drop from an indictment those 
allegations that are unnecessary to an offense that is clearly contained 
within it,'' as, e.g., a lesser included offense.\30\ There being no 
constitutional requirement that an indictment be presented by a grand 
jury in a body, an indictment delivered by the foreman in the absence of 
other grand jurors is valid.\31\ If valid on its face, an indictment 
returned by a legally constituted, non-biased grand jury satisfies the 
requirement of the Fifth Amendment and is enough to call for a trial on 
the merits; it is not open to challenge on the ground that there was 
inadequate or incompetent evidence before the grand jury.\32\

        \28\See Stirone v. United States, 361 U.S. 212 (1960), wherein a 
variation between pleading and proof was held to deprive petitioner of 
his right to be tried only upon charges presented in the indictment.
        \29\Ex parte Bain, 121 U.S. 1, 12 (1887). Ex parte Bain was 
overruled in United States v. Miller, 471 U.S. 130 (1985), to the extent 
that it held that a narrowing of an indictment is impermissible.
        \30\United States v. Miller, 471 U.S. 130, 144 (1985).
        \31\Breese v. United States, 226 U.S. 1 (1912).
        \32\Costello v. United States, 350 U.S. 359 (1956); Lawn v. 
United States, 355 U.S. 339 (1958); United States v. Blue, 384 U.S. 251 
(1966). Cf. Gelbard v. United States, 408 U.S. 41 (1972).
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        The protection of indictment by grand jury extends to all 
persons except those serving in the armed forces. All persons in the 
regular armed forces are subject to court martial rather than grand jury 
indictment or trial by jury.\33\ The exception's limiting words ``when 
in actual service in time of war or public danger'' apply only to 
members of the militia, not to members of the regular armed forces. In 
O'Callahan v. Parker, the Court in 1969 held that offenses that are not 
``service connected'' may not be punished under military law, but 
instead must be tried in the civil courts in the jurisdiction where the 
acts took place.\34\ This decision was overruled, however, in 1987, the 
Court emphasizing the ``plain lan

[[Page 1279]]
guage'' of Art. I, Sec. 8, cl. 14,\35\ and not directly addressing any 
possible limitation stemming from the language of the Fifth 
Amendment.\36\ ``The requirements of the Constitution are not violated 
where . . . a court-martial is convened to try a serviceman who was a 
member of the armed services at the time of the offense charged.''\37\ 
Even under the service connection rule, it was held that offenses 
against the laws of war, whether committed by citizens or by alien enemy 
belligerents, could be tried by a military commission.\38\

        \33\Johnson v. Sayre, 158 U.S. 109, 114 (1895). See also Lee v. 
Madigan, 358 U.S. 228, 232-35, 241 (1959).
        \34\395 U.S. 258 (1969); see also Relford v. Commandant, 401 
U.S. 355 (1971) (offense committed on military base against persons 
lawfully on base was service connected). But courts-martial of civilian 
dependents and discharged servicemen have been barred. Id. See supra, 
pp.316-19.
        \35\This clause confers power on Congress to ``make rules for 
the government and regulation of the land and naval forces.''
        \36\Solorio v. United States, 483 U.S. 435 (1987). A 5-4 
majority favored overruling O'Callahan: Chief Justice Rehnquist's 
opinion for the Court was joined by Justices White, Powell, O'Connor, 
and Scalia. Justice Stevens concurred in the judgment but thought it 
unnecessary to reexamine O'Callahan. Dissenting Justice Marshall, joined 
by Justices Brennan and Blackmun, thought the service connection rule 
justified by the language of the Fifth Amendment's exception, based on 
the nature of cases (those ``arising in the land or naval forces'') 
rather than the status of defendants.
        \37\Id. at 450-51.
        \38\Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).
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                             DOUBLE JEOPARDY

      Development and Scope

        ``The constitutional prohibition against `double jeopardy' was 
designed to protect an individual from being subjected to the hazards of 
trial and possible conviction more than once for an alleged offense. 
. . . The underlying idea, one that is deeply ingrained in at least the 
Anglo-American system of jurisprudence, 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, thereby subjecting him to 
embarrassment, expense and ordeal and compelling him to live in a 
continuing state of anxiety and insecurity, as well as enhancing the 
possibility that even though innocent he may be found guilty.''\39\ The 
concept of double jeopardy goes far back in history, but its development 
was uneven and its meaning has varied. The English development, under 
the influence of Coke and Blackstone, came gradually to mean that a 
defendant at trial could plead former conviction or former acquittal as 
a special plea in bar to defeat the prosecution.\40\ In this country, 
the

[[Page 1280]]
common-law rule was in some cases limited to this rule and in other 
cases extended to bar a new trial even though the former trial had not 
concluded in either an acquittal or a conviction. The rule's elevation 
to fundamental status by its inclusion in several state bills of rights 
following the Revolution continued the differing approaches.\41\ 
Madison's version of the guarantee as introduced in the House of 
Representatives read: ``No person shall be subject, except in cases of 
impeachment, to more than one punishment or trial for the same 
offense.''\42\ Opposition in the House proceeded on the proposition that 
the language could be construed to prohibit a second trial after a 
successful appeal by a defendant and would therefore either constitute a 
hazard to the public by freeing the guilty or, more likely, result in a 
detriment to defendants because appellate courts would be loath to 
reverse convictions if no new trial could follow, but a motion to strike 
``or trial'' from the clause failed.\43\ As approved by the Senate, 
however, and accepted by the House for referral to the States, the 
present language of the clause was inserted.\44\

        \39\Green v. United States, 355 U.S. 184, 187-88 (1957). The 
passage is often approvingly quoted by the Court. E.g., Crist v. Bretz, 
437 U.S. 28, 35 (1978); United States v. DiFrancesco, 449 U.S. 117, 127-
28 (1980). For a comprehensive effort to assess the purposes of 
application of the clause, see Westen & Drubel, Toward a General Theory 
of Double Jeopardy, 1978 Sup. Ct. Rev. 81.
        \40\M. Friedland, Double Jeopardy (1969), part 1; Crist v. 
Bretz, 437 U.S. 28, 32-36 (1978), and id. at 40 (Justice Powell 
dissenting); United States v. Wilson, 420 U.S. 332, 340 (1975).
        \41\J. Sigler, Double Jeopardy--The Development of a Legal and 
Social Policy 21-27 (1969). The first bill of rights which expressly 
adopted a double jeopardy clause was the New Hampshire Constitution of 
1784. ``No subject shall be liable to be tried, after an acquittal, for 
the same crime or offence.'' Art. I, Sec. XCI, 4 F. Thorpe, The Federal 
and State Constitution, reprinted in H.R. Doc. No. 357, 59th Congress, 
2d Sess. 2455 (1909). A more comprehensive protection was included in 
the Pennsylvania Declaration of Rights of 1790, which had language 
almost identical to the present Fifth Amendment provision. Id. at 3100.
        \42\1 Annals of Congress 434 (June 8, 1789).
        \43\Id. at 753.
        \44\2 Bernard Schwartz, The Bill of Rights: A Documentary 
History 1149, 1165 (1971). In Crist v. Bretz, 437 U.S. 28, 40 (1978) 
(dissenting), Justice Powell attributed to inadvertence the broadening 
of the ``rubric'' of double jeopardy to incorporate the common law rule 
against dismissal of the jury prior to verdict, a question the majority 
passed over as being ``of academic interest only.'' Id. at 34 n.10.
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        Throughout most of its history, this clause was binding only 
against the Federal Government. In Palko v. Connecticut,\45\ the Court 
rejected an argument that the Fourteenth Amendment incorporated all the 
provisions of the first eight Amendments as limitations on the States 
and enunciated the due process theory under which most of those 
Amendments do now apply to the States. Some guarantees in the Bill of 
Rights, Justice Cardozo wrote, were so fundamental that they are ``of 
the very essence of the scheme of ordered liberty'' and ``neither 
liberty nor justice would exist if they were sacrificed.''\46\ But the 
double jeopardy clause, like many other procedural rights of defendants, 
was not so fundamental; it could be absent and fair trials could still 
be had. Of course, a defendant's due process rights, absent double 
jeopardy consideration per se,

[[Page 1281]]
might be violated if the State ``creat[ed] a hardship so acute and 
shocking as to be unendurable,'' but that was not the case in Palko.\47\ 
In Benton v. Maryland,\48\ however, the Court concluded ``that the 
double jeopardy prohibition . . . represents a fundamental ideal in our 
constitutional heritage. . . . Once it is decided that a particular Bill 
of Rights guarantee is `fundamental to the American scheme of justice,' 
. . . the same constitutional standards apply against both the State and 
Federal Governments.'' Therefore, the double jeopardy limitation now 
applies to both federal and state governments and state rules on double 
jeopardy, with regard to such matters as when jeopardy attaches, must be 
considered in the light of federal standards.\49\

        \45\302 U.S. 319 (1937).
        \46\Id. at 325, 326.
        \47\Id. at 328.
        \48\395 U.S. 784, 794-95 (1969).
        \49\Crist v. Bretz, 437 U.S. 28, 37-38 (1978). But see id. at 40 
(Justices Powell and Rehnquist and Chief Justice Burger dissenting) 
(standard governing States should be more relaxed).
---------------------------------------------------------------------------

        In a federal system, different units of government may have 
different interests to serve in the definition of crimes and the 
enforcement of their laws, and where the different units have 
overlapping jurisdictions a person may engage in conduct that will 
violate the laws of more than one unit.\50\ Although the Court had long 
accepted in dictum the principle that prosecution by two governments of 
the same defendant for the same conduct would not constitute double 
jeopardy,\51\ it was not until United States v. Lanza\52\ that the 
conviction in federal court of a person previously convicted in a state 
court for performing the same acts was sustained. ``We have here two 
sovereignties, deriving power from different sources, capable of dealing 
with the same subject-matter within the same territory . . . Each 
government in determining what shall be an offense against its peace and 
dignity is exercising its own sovereignty, not that of the other.''\53\ 
The ``dual sovereignty'' doctrine is not only tied into the existence of 
two sets of laws often serving different federal-state purposes and the 
now overruled principle that the double jeopardy clause restricts only 
the national government and not the States,\54\ but it also reflects 
practical considerations that undesirable consequences could follow an 
overruling of

[[Page 1282]]
the doctrine. Thus, a State might preempt federal authority by first 
prosecuting and providing for a lenient sentence (as compared to the 
possible federal sentence) or acquitting defendants who had the sympathy 
of state authorities as against federal law enforcement.\55\ The 
application of the clause to the States has therefore worked no change 
in the ``dual sovereign'' doctrine.\56\ Of course, when in fact two 
different units of the government are subject to the same sovereign, the 
double jeopardy clause does bar separate prosecutions by them for the 
same offense.\57\ The dual sovereignty doctrine has also been applied to 
permit successive prosecutions by two states for the same conduct.\58\

        \50\The problem was recognized as early as Houston v. Moore, 18 
U.S. (5 Wheat.) 1 (1820), and the rationale of the doctrine was 
confirmed within thirty years. Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); 
United States v. Marigold, 50 U.S. (9 How.) 560 (1850); Moore v. 
Illinois, 55 U.S. (14 How.) 13 (1852).
        \51\Id. And see cases cited in Bartkus v. Illinois, 359 U.S. 
121, 132 n.19 (1959), and Abbate v. United States, 359 U.S. 187, 192-93 
(1959).
        \52\260 U.S. 377 (1922).
        \53\Id. at 382. See also Hebert v. Louisiana, 272 U.S. 312 
(1924); Screws v. United States, 325 U.S. 91, 108 (1945); Jerome v. 
United States, 318 U.S. 101 (1943).
        \54\Benton v. Maryland, 395 U.S. 784 (1969), extended the clause 
to the States.
        \55\Reaffirmation of the doctrine against double jeopardy claims 
as to the Federal Government and against due process claims as to the 
States occurred in Abbate v. United States, 359 U.S. 187 (1959), and 
Bartkus v. Illinois, 359 U.S. 121 (1959), both cases containing 
extensive discussion and policy analyses. The Justice Department follows 
a policy of generally not duplicating a state prosecution brought and 
carried out in good faith, see Petite v. United States, 361 U.S. 529, 
531 (1960); Rinaldi v. United States, 434 U.S. 22 (1977), and several 
provisions of federal law forbid a federal prosecution following a state 
prosecution. E.g., 18 U.S.C. Sec. Sec. 659, 660, 1992, 2117. The Brown 
Commission recommended a general statute to this effect, preserving 
discretion in federal authorities to proceed upon certification by the 
Attorney General that a United States interest would be unduly harmed if 
there were no federal prosecution. National Commission on Reform of 
Federal Criminal Laws, Final Report 707 (1971).
        \56\United States v. Wheeler, 435 U.S. 313 (1978) (dual 
sovereignty doctrine permits federal prosecution of an Indian for 
statutory rape following his plea of guilty in a tribal court to 
contributing to the delinquency of a minor, both charges involving the 
same conduct; tribal law stemmed from the retained sovereignty of the 
tribe and did not flow from the Federal Government).
        \57\Grafton v. United States, 206 U.S. 333 (1907) (trial by 
military court-martial precluded subsequent trial in territorial court); 
Waller v. Florida, 397 U.S. 387 (1970) (trial by municipal court 
precluded trial for same offense by state court). It was assumed in an 
early case that refusal to answer questions before one House of Congress 
could be punished as a contempt by that body and by prosecution by the 
United States under a misdemeanor statute, In re Chapman, 166 U.S. 661, 
672 (1897), but there had been no dual proceedings in that case and it 
seems highly unlikely that the case would now be followed. Cf. Colombo 
v. New York, 405 U.S. 9 (1972).
        \58\Heath v. Alabama, 474 U.S. 82 (1985) (defendant crossed 
state line in course of kidnap murder, was prosecuted for murder in both 
states).
---------------------------------------------------------------------------

        The clause speaks of being put in ``jeopardy of life or limb,'' 
which as derived from the common law, generally referred to the 
possibility of capital punishment upon conviction, but it is now settled 
that the clause protects with regard ``to every indictment or 
information charging a party with a known and defined crime or 
misdemeanor, whether at the common law or by statute.''\59\ Despite the 
Clause's literal language, it can apply as well to sanctions that

[[Page 1283]]
are civil in form if they clearly are applied in a manner that 
constitutes ``punishment.''\60\

        \59\Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 (1874). The 
clause generally has no application in noncriminal proceedings. 
Helvering v. Mitchell, 303 U.S. 391 (1938); One Lot Emerald Cut Stones 
v. United States, 409 U.S. 232 (1972) (forfeiture proceedings; one must 
ask whether the proceedings are remedial or punitive).
        \60\The clause applies in juvenile court proceedings which are 
formally civil. Breed v. Jones, 421 U.S. 519 (1975). See also United 
States v. Halper, 490 U.S. 435 (1989) (civil penalty under the False 
Claims Act constitutes punishment if it is overwhelmingly 
disproportionate to compensating the government for its loss, and if it 
can be explained only as serving retributive or deterrent purposes); 
United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (in 
determining whether a forfeiture proceeding is remedial or punitive, 
congressional preference for a civil sanction will be overridden only by 
``the clearest proof'' to the contrary).
---------------------------------------------------------------------------

        Because one prime purpose of the clause is the protection 
against the burden of multiple trials, a defendant who raises and loses 
a double jeopardy claim during pretrial or trial may immediately appeal 
the ruling, a rare exception to the general rule prohibiting appeals 
from nonfinal orders.\61\

        \61\Abney v. United States, 431 U.S. 651 (1977).
---------------------------------------------------------------------------

        During the 1970s especially, the Court decided an uncommonly 
large number of cases raising double jeopardy claims.\62\ Instead of the 
clarity that often emerges from intense consideration of a particular 
issue, however, double jeopardy doctrine has descended into a state of 
``confusion,'' with the Court acknowledging that its decisions ``can 
hardly be characterized as models of consistency and clarity.''\63\ In 
large part, the re-evaluation of doctrine and principle has not resulted 
in the development of clear and consistent guidelines because of the 
differing emphases of the Justices upon the purposes of the clause and 
the consequent shifting coalition of majorities based on highly 
technical distinctions and individualistic fact patterns. Thus, some 
Justices have expressed the belief that the purpose of the clause is 
only to protect final judgments relating to culpability, either of 
acquittal or conviction, and that English common law rules designed to 
protect the defendant's right to go to the first jury picked had early 
in our jurisprudence become confused with the double jeopardy clause. 
While they accept the present understanding, they do so as part of the 
Court's superintending of the federal courts and not because the 
understanding is part and parcel of the clause; in so doing, of course, 
they are likely to find more prosecutorial discretion in the trial 
process.\64\ Oth

[[Page 1284]]
ers have expressed the view that the clause not only protects the 
integrity of final judgments but, more important, that it protects the 
accused against the strain and burden of multiple trials, which would 
also enhance the ability of government to convict.\65\ Still other 
Justices have engaged in a form of balancing of defendants' rights with 
society's rights to determine when reprosecution should be permitted 
when a trial ends prior to a final judgment not hinged on the 
defendant's culpability.\66\ Thus, the basic area of disagreement, 
though far from the only one, centers on the trial from the attachment 
of jeopardy to the final judgment.

        \62\See United States v. DiFrancesco, 449 U.S. 117, 126-27 
(1980) (citing cases).
        \63\Burks v. United States, 437 U.S. 1, 9, 15 (1978). One result 
is instability in the law. Thus, Burks overruled, to the extent 
inconsistent, four cases decided between 1950 and 1960, and United 
States v. Scott, 437 U.S. 82 (1978), overruled a case decided just three 
years earlier, United States v. Jenkins, 420 U.S. 358 (1975).
        \64\See Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting 
opinion). Justice Powell, joined by Chief Justice Burger and Justice 
Rehnquist, argued that with the double jeopardy clause so interpreted 
the due process clause could be relied on to prevent prosecutorial abuse 
during the trial designed to abort the trial and obtain a second one. 
Id. at 50. All three have joined, indeed, in some instances, have 
authored, opinions adverting to the role of the double jeopardy clause 
in protecting against such prosecutorial abuse. E.g., United States v. 
Scott, 437 U.S 82, 92-94 (1978); Oregon v. Kennedy, 456 U.S. 667 (1982) 
(but narrowing scope of concept).
        \65\United States v. Scott, 437 U.S. 82, 101 (1978) (dissenting 
opinion) (Justices Brennan, White, Marshall, and Stevens).
        \66\Thus, Justice Blackmun has enunciated positions recognizing 
a broad right of defendants much like the position of the latter three 
Justices, Crist v. Bretz, 437 U.S. 28, 38 (1978) (concurring), and he 
joined Justice Stevens' concurrence in Oregon v. Kennedy, 456 U.S. 667, 
681 (1982), but he also joined the opinions in United States v. Scott, 
437 U.S. 82 (1978), and Arizona v. Washington, 434 U.S. 497 (1978) 
(Justice Blackmun concurring only in the result).
---------------------------------------------------------------------------
      Reprosecution Following Mistrial

        The common law generally required that the previous trial must 
have ended in a judgment, of conviction or acquittal, but the 
constitutional rule is that jeopardy attaches much earlier, in jury 
trials when the jury is sworn, and in trials before a judge without a 
jury, when the first evidence is presented.\67\ Therefore, if after 
jeopardy attaches the trial is terminated for some reason, it may be 
that a second trial, even if the termination was erroneous, is 
barred.\68\ The reasons the Court has given for fixing the attach

[[Page 1285]]
ment of jeopardy at a point prior to judgment and thus making some 
terminations of trials before judgment final insofar as the defendant is 
concerned is that a defendant has a ``valued right to have his trial 
completed by a particular tribunal.''\69\ The reason the defendant's 
right is so ``valued'' is that he has a legitimate interest in 
completing the trial ``once and for all'' and ``conclud[ing] his 
confrontation with society,''\70\ so as to be spared the expense and 
ordeal of repeated trials, the anxiety and insecurity of having to live 
with the possibility of conviction, and the possibility that the 
prosecution may strengthen its case with each try as it learns more of 
the evidence and of the nature of the defense.\71\ These reasons both 
inform the determination when jeopardy attaches and the evaluation of 
the permissibility of retrial depending upon the reason for a trial's 
premature termination.

        \67\The rule traces back to United States v. Perez, 22 U.S. (9 
Wheat.) 579 (1824). See also Kepner v. United States, 195 U.S. 100 
(1904); Downum v. United States, 372 U.S. 734 (1963) (trial terminated 
just after jury sworn but before any testimony taken). In Crist v. 
Bretz, 437 U.S. 28 (1978), the Court held this standard of the 
attachment of jeopardy was ``at the core'' of the clause and it 
therefore binds the States. But see id. at 40 (Justice Powell 
dissenting). An accused is not put in jeopardy by preliminary 
examination and discharge by the examining magistrate, Collins v. 
Loisel, 262 U.S. 426 (1923), by an indictment which is quashed, Taylor 
v. United States, 207 U.S. 120, 127 (1907), or by arraignment and 
pleading to the indictment. Bassing v. Cady, 208 U.S. 386, 391-92 
(1908). A defendant may be tried after preliminary proceedings that 
present no risk of final conviction. E.g., Ludwig v. Massachusetts, 427 
U.S. 618, 630-32 (1976) (conviction in prior summary proceeding does not 
foreclose trial in a court of general jurisdiction, where defendant has 
absolute right to demand a trial de novo and thus set aside the first 
conviction); Swisher v. Brady, 438 U.S. 204 (1978) (double jeopardy not 
violated by procedure under which masters hear evidence and make 
preliminary recommendations to juvenile court judge, who may confirm, 
modify, or remand).
        \68\Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v. 
United States, 372 U.S. 734 (1963). ``Even if the first trial is not 
completed, a second prosecution may be grossly unfair. It increases the 
financial and emotional burden on the accused, prolongs the period in 
which he is stigmatized by an unresolved accusation of wrongdoing, and 
may even enhance the risk that an innocent defendant may be convicted. 
The danger of such unfairness to the defendant exists whenever a trial 
is aborted before it is completed. Consequently, as a general rule, the 
prosecutor is entitled to one, and only one, opportunity to require an 
accused to stand trial.'' Arizona v. Washington, 434 U.S. 497, 503-05 
(1978).
        \69\Wade v. Hunter, 336 U.S. 684, 689 (1949).
        \70\United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality 
opinion).
        \71\Arizona v. Washington, 434 U.S. 497, 503-05 (1978); Crist v. 
Bretz, 437 U.S. 28, 35-36 (1978). See Westen & Drubel, Toward a General 
Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 86-97.
---------------------------------------------------------------------------

        A mistrial may be the result of ``manifest necessity,''\72\ such 
as where, for example, the jury cannot reach a verdict\73\ or 
circumstances plainly prevent the continuation of the trial.\74\ 
Difficult has been the answer, however, when the doctrine of ``manifest 
necessity'' has been called upon to justify a second trial following a 
mistrial granted by the trial judge because of some event within the 
prosecutor's control or because of prosecutorial misconduct or because 
of error or abuse of discretion by the judge himself. There must 
ordinarily be a balancing of the defendant's right in having the trial 
completed against the public interest in fair trials designed to end in 
just judgments.\75\ Thus, when, after jeopardy attached, a mistrial was 
granted because of a defective indictment, the Court held that retrial 
was not barred; a trial judge ``properly exercises his discretion'' in 
cases in which an impartial verdict cannot be reached or in which a 
verdict on conviction would have to be reversed on appeal because of an 
obvious error. ``If an error

[[Page 1286]]
could make reversal on appeal a certainty, it would not serve `the ends 
of public justice' to require that the Government proceed with its proof 
when, if it succeeded before the jury, it would automatically be 
stripped of that success by an appellate court.''\76\ On the other hand, 
when, after jeopardy attached, a prosecutor successfully moved for a 
mistrial because a key witness had inadvertently not been served and 
could not be found, the Court held a retrial barred, because the 
prosecutor knew prior to the selection and swearing of the jury that the 
witness was unavailable.\77\ Although this case appeared to establish 
the principle that an error of the prosecutor or of the judge leading to 
a mistrial could not constitute a ``manifest necessity'' for terminating 
the trial, Somerville distinguished and limited Downum to situations in 
which the error lends itself to prosecutorial manipulation, in being the 
sort of instance which the prosecutor could use to abort a trial that 
was not proceeding successfully and to obtain a new trial in which his 
advantage would be increased.\78\

        \72\United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
        \73\Id.; Logan v. United States, 144 U.S. 263 (1892).
        \74\Simmons v. United States, 142 U.S. 148 (1891) (juror's 
impartiality became questionable during trial); Thompson v. United 
States, 155 U.S. 271 (1884) (discovery during trial that one of the 
jurors had served on the grand jury which indicted defendant and was 
therefore disqualified); Wade v. Hunter, 336 U.S. 684 (1949) (court-
martial discharged because enemy advancing on site).
        \75\Illinois v. Somerville, 410 U.S. 458, 463 (1973).
        \76\Id. at 464.
        \77\Downum v. United States, 372 U.S. 734 (1963).
        \78\Illinois v. Somerville, 410 U.S. 458, 464-65, 468-69 (1973).
---------------------------------------------------------------------------

        Another kind of case arises when the prosecutor moves for 
mistrial because of prejudicial misconduct by the defense. In Arizona v. 
Washington,\79\ defense counsel in his opening statement made 
prejudicial comments about the prosecutor's past conduct, and the 
prosecutor's motion for a mistrial was granted over defendant's 
objections. The Court ruled that retrial was not barred by double 
jeopardy. Granting that in a strict, literal sense, mistrial was not 
``necessary'' because the trial judge could have given limiting 
instructions to the jury, the Court held that the highest degree of 
respect should be given to the trial judge's evaluation of the 
likelihood of the impairment of the impartiality of one or more jurors. 
As long as support for a mistrial order can be found in the trial 
record, no specific statement of ``manifest necessity'' need be made by 
the trial judge.\80\

        \79\434 U.S. 497 (1978).
        \80\``Manifest necessity'' characterizes the burden the 
prosecutor must shoulder in justifying retrial. Id. at 505-06. But 
``necessity'' cannot be interpreted literally; it means rather a ``high 
degree'' of necessity, and some instances, such as hung juries, easily 
meet that standard. Id. at 506-07. In a situation like that presented in 
this case, great deference must be paid to the trial judge's decision 
because he was in the best position to determine the extent of the 
possible bias, having observed the jury's response, and to respond by 
the course he deems best suited to deal with it. Id. at 510-14. Here, 
``the trial judge acted responsibly and deliberately, and accorded 
careful consideration to respondent's interest in having the trial 
concluded in a single proceeding. [H]e exercised `sound discretion'. 
. . .'' Id. at 516.
---------------------------------------------------------------------------

        Emphasis upon the trial judge's discretion has an impact upon 
the cases in which it is the judge's error, in granting sua sponte a

[[Page 1287]]
mistrial or granting the prosecutor's motion. The cases are in doctrinal 
disarray. Thus, in Gori v. United States,\81\ the Court permitted 
retrial of the defendant when the trial judge had, on his own motion and 
with no indication of the wishes of defense counsel, declared a mistrial 
because he thought the prosecutor's line of questioning was intended to 
expose the defendant's criminal record, which would have constituted 
prejudicial error. Although the Court thought the judge's action was an 
abuse of discretion, it approved retrial on the conclusion that the 
judge's decision had been taken for defendant's benefit. This rationale 
was disapproved in the next case, in which the trial judge discharged 
the jury erroneously and in abuse of his discretion, because he 
disbelieved the prosecutor's assurance that certain witnesses had been 
properly apprised of their constitutional rights.\82\ Refusing to permit 
retrial, the Court observed that the ``doctrine of manifest necessity 
stands as a command to trial judges not to foreclose the defendant's 
option [to go to the first jury and perhaps obtain an acquittal] until a 
scrupulous exercise of judicial discretion leads to the conclusion that 
the ends of public justice would not be served by a continuation of the 
proceedings.''\83\ The later cases appear to accept Jorn as an example 
of a case where the trial judge ``acts irrationally or irresponsibly.'' 
But if the trial judge acts deliberately, giving prosecution and defense 
the opportunity to explain their positions, and according respect to 
defendant's interest in concluding the matter before the one jury, then 
he is entitled to deference. This approach perhaps rehabilitates the 
result if not the reasoning in Gori and maintains the result and much of 
the reasoning of Jorn.\84\

        \81\367 U.S. 364 (1961). See also United States v. Tateo, 377 
U.S. 463 (1964) (reprosecution permitted after the setting aside of a 
guilty plea found to be involuntary because of coercion by the trial 
judge).
        \82\United States v. Jorn, 400 U.S. 470, 483 (1971).
        \83\Id. at 485. The opinion of the Court was by a plurality of 
four, but two other Justices joined it after first arguing that 
jurisdiction was lacking to hear the Government's appeal.
        \84\Arizona v. Washington, 434 U.S. 497, 514, 515-16 (1978). See 
also Illinois v. Somerville, 410 U.S. 458, 462, 465-66, 469-71 (1973) 
(discussing Gori and Jorn.)
---------------------------------------------------------------------------

        Of course, ``a motion by the defendant for mistrial is 
ordinarily assumed to remove any barrier to reprosecution, even if the 
defendant's motion is necessitated by a prosecutorial or judicial 
error.''\85\ ``Such a motion by the defendant is deemed to be a 
deliberate election on his part to forgo his valued right to have his 
guilt or innocence determined before the first trier of fact.''\86\ In 
United States v. Dinitz,\87\ the trial judge had excluded defendant's 
principal at

[[Page 1288]]
torney for misbehavior and had then given defendant the option of recess 
while he appealed the exclusion, a mistrial, or continuation with an 
assistant defense counsel. Holding that the defendant could be retried 
after he chose a mistrial, the Court reasoned that, while the exclusion 
might have been in error, it was not done in bad faith to goad the 
defendant into requesting a mistrial or to prejudice his prospects for 
acquittal. The defendant's choice, even though difficult, to terminate 
the trial and go on to a new trial should be respected and a new trial 
not barred. To hold otherwise would necessitate requiring the defendant 
to shoulder the burden and anxiety of proceeding to a probable 
conviction followed by an appeal, which if successful would lead to a 
new trial, and neither the public interest nor defendant's interests 
would thereby be served.

        \85\United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality 
opinion).
        \86\United States v. Scott, 437 U.S. 82, 93 (1978).
        \87\424 U.S. 600 (1976). See also Lee v. United States, 432 U.S. 
23 (1977) (defendant's motion to dismiss because the information was 
improperly drawn made after opening statement and renewed at close of 
evidence was functional equivalent of mistrial and when granted did not 
bar retrial, Court emphasizing that defendant by his timing brought 
about foreclosure of opportunity to stay before the same trial).
---------------------------------------------------------------------------

        But the Court has also reserved the possibility that the 
defendant's motion might be necessitated by prosecutorial or judicial 
overreaching motivated by bad faith or undertaken to harass or 
prejudice, and in those cases retrial would be barred. It was unclear 
what prosecutorial or judicial misconduct would constitute such 
overreaching,\88\ but in Oregon v. Kennedy,\89\ the Court adopted a 
narrow ``intent'' test, so that ``[o]nly where the governmental conduct 
in question is intended to `goad' the defendant into moving for a 
mistrial may a defendant raise the bar of double jeopardy to a second 
trial after having succeeded in aborting the first on his own motion.'' 
Therefore, ordinarily, a defendant who moves for or acquiesces in a 
mistrial is bound by his decision and may be required to stand for 
retrial.

        \88\Compare United States v. Dinitz, 424 U.S. 600, 611 (1976), 
with United States v. Tateo, 377 U.S. 463, 468 n.3 (1964).
        \89\456 U.S. 667, 676 (1982). The Court thought a broader 
standard requiring an evaluation of whether acts of the prosecutor or 
the judge prejudiced the defendant would be unmanageable and would be 
counterproductive because courts would be loath to grant motions for 
mistrials knowing that reprosecution would be barred. Id. at 676-77. The 
defendant had moved for mistrial after the prosecutor had asked a key 
witness a prejudicial question. Four Justices concurred, noting that the 
question did not constitute overreaching or harassment and objecting 
both to the Court's reaching the broader issue and to its narrowing the 
exception. Id. at 681.
---------------------------------------------------------------------------

        Reprosecution Following Acquittal.--That a defendant may not be 
retried following an acquittal is ``the most fundamental rule in the 
history of double jeopardy jurisprudence.''\90\ ``[T]he law attaches 
particular significance to an acquittal. To permit a second trial after 
an acquittal, however mistaken the acquittal may have been, would 
present an unacceptably high risk that the Govern

[[Page 1289]]
ment, with its vastly superior resources, might wear down the defendant 
so that `even though innocent he may be found guilty.'''\91\ While in 
other areas of double jeopardy doctrine consideration is given to the 
public-safety interest in having a criminal trial proceed to an error-
free conclusion, no such balancing of interests is permitted with 
respect to acquittals, ``no matter how erroneous,'' no matter even if 
they were ``egregiously erroneous.''\92\

        \90\United States v. Martin Linen Supply Co., 430 U.S. 564, 571 
(1977).
        \91\United States v. Scott, 437 U.S. 82, 91 (1978) (quoting 
Green v. United States, 355U.S. 184, 188 (1957)). For the conceptually 
related problem of trial for a ``separate'' offense arising out of the 
same ``transaction,'' see infra, pp.1299-1302.
        \92\Burks v. United States, 437 U.S. 1, 16 (1978); Fong Foo v. 
United States, 369 U.S. 141, 143 (1962). For evaluation of those 
interests of the defendant that might support the absolute rule of 
finality, and rejection of all such interests save the right of the jury 
to acquit against the evidence and the trial judge's ability to temper 
legislative rules with leniency, see Westen & Drubel, Toward a General 
Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 122-37.
---------------------------------------------------------------------------

        The acquittal being final, there is no governmental appeal 
constitutionally possible from such a judgment. This was firmly 
established in Kepner v. United States,\93\ which arose under a 
Philippines appeals system in which the appellate court could make an 
independent review of the record, set aside the trial judge's decision, 
and enter a judgment of conviction.\94\ Previously, under the due 
process clause, there was no barrier to state provision for 
prosecutorial appeals from acquittals.\95\ But there are instances in 
which the trial judge will dismiss the indictment or information without 
intending to acquit or in circumstances in which retrial would not be 
barred, and the prosecution, of course, has an interest in seeking on 
appeal to have errors corrected. Until 1971, however, the law providing 
for federal appeals was extremely difficult to apply and insulated from 
review many purportedly erroneous legal rulings,\96\ but in that year 
Congress enacted a new statute permitting appeals in all criminal cases 
in which indictments are dis

[[Page 1290]]
missed, except in those cases in which the double jeopardy clause 
prohibits further prosecution.\97\ In part because of the new law, the 
Court has dealt in recent years with a large number of problems in this 
area.

        \93\195 U.S. 100 (1904). The case interpreted not the 
constitutional provision but a statutory provision extending double 
jeopardy protection to the Philippines. The Court has described the 
case, however, as correctly stating constitutional principles. See, 
e.g., United States v. Wilson, 420 U.S. 332, 346 n.15 (1975); United 
States v. DiFrancesco, 449 U.S. 117, 113 n.13 (1980).
        \94\In dissent, Justice Holmes, joined by three other Justices, 
propounded a theory of ``continuing jeopardy,'' so that until the case 
was finally concluded one way or another, through judgment of conviction 
or acquittal, and final appeal, there was no second jeopardy no matter 
how many times a defendant was tried. Id. at 134. The Court has numerous 
times rejected any concept of ``continuing jeopardy.'' E.g., Green v. 
United States, 355 U.S. 184, 192 (1957); United States v. Wilson, 420 
U.S. 332, 351-53 (1975); Breed v. Jones, 421 U.S. 519, 533-35 (1975).
        \95\Palko v. Connecticut, 302 U.S. 319 (1937). Palko is no 
longer viable. Cf. Greene v. Massey, 437 U.S. 19 (1978).
        \96\The Criminal Appeals Act of 1907, 34 Stat. 1246, was ``a 
failure . . . , a most unruly child that has not improved with age.'' 
United States v. Sisson, 399 U.S. 267, 307 (1970). See also United 
States v. Oppenheimer, 242 U.S. 85 (1916); Fong Foo v. United States, 
369 U.S. 141 (1962).
        \97\Title III of the Omnibus Crime Control Act, Pub. L. No. 91-
644, 84 Stat. 1890, 18 U.S.C. Sec. 3731. Congress intended to remove all 
statutory barriers to governmental appeal and to allow appeals whenever 
the Constitution would permit, so that interpretation of the statute 
requires constitutional interpretation as well. United States v. Wilson, 
420 U.S. 332, 337 (1974). See Sanabria v. United States, 437 U.S. 54, 69 
n.23 (1978), and id. at 78 (Justice Stevens concurring).
---------------------------------------------------------------------------

        Acquittal by Jury.--Little or no controversy accompanies the 
rule that once a jury has acquitted a defendant, government may not, 
through appeal of the verdict or institution of a new prosecution, place 
the defendant on trial again. Thus, the Court early held that, when the 
results of a trial are set aside because the first indictment was 
invalid or for some reason the trial's results were voidable, a judgment 
of acquittal must nevertheless remain undisturbed.\98\

        \98\In United States v. Ball, 163 U.S. 662 (1896), three 
defendants were placed on trial, Ball was acquitted and the other two 
were convicted, the two appealed and obtained a reversal on the ground 
that the indictment had been defective, and all three were again tried 
and all three were convicted. Ball's conviction was set aside as 
violating the clause; the trial court's action was not void but only 
voidable, and Ball had taken no steps to void it while the Government 
could not take such action. Similarly, in Benton v. Maryland, 395 U.S. 
784 (1969), the defendant was convicted of burglary but acquitted of 
larceny; the conviction was set aside on his appeal because the jury had 
been unconstitutionally chosen. He was again tried and convicted of both 
burglary and larceny, but the larceny conviction was held to violate the 
double jeopardy clause. On the doctrine of ``constructive acquittals'' 
by conviction of a lesser included offense, see infra, p.1294.
---------------------------------------------------------------------------

        Acquittal by the Trial Judge.--Similarly, when a trial judge 
acquits a defendant, that action concludes the matter.\99\ There is no 
possibility of retrial for the same offense.\100\ But it may be 
difficult at times to determine whether the trial judge's action was in 
fact an acquittal or was a dismissal or some other action which the 
prosecution may be able to appeal. The question is ``whether the ruling 
of the judge, whatever its label, actually represents a resolution, 
correct or not, of some or all of the factual elements of the offense 
charged.''\101\ Thus, an appeal by the Government was held barred in a 
case in which the deadlocked jury had been discharged, and the trial 
judge had granted the defendant's motion for a judgment of acquittal 
under the appropriate federal rule, explicitly based on the judgment 
that the Government had not proved facts

[[Page 1291]]
constituting the offense.\102\ Even if, as happened in Sanabria v. 
United States,\103\ the trial judge erroneously excludes evidence and 
then acquits on the basis that the remaining evidence is insufficient to 
convict, the judgment of acquittal produced thereby is final and 
unreviewable.

        \99\United States v. Martin Linen Supply Co., 430 U.S. 564, 570-
72 (1977); Sanabria v. United States 437 U.S. 54, 63-65 (1978); Finch v. 
United States, 433 U.S. 676 (1977).
        \100\In Fong Foo v. United States, 369 U.S. 141 (1962), the 
Court acknowledged that the trial judge's action in acquitting was 
``based upon an egregiously erroneous foundation,'' but it was 
nonetheless final and could not be reviewed. Id. at 143.
        \101\United States v. Martin Linen Supply Co., 430 U.S. 564, 571 
(1977).
        \102\Id. at 570-76. See also United States v. Scott, 437 U.S. 
82, 87-92 (1978); Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer 
sustained on basis of insufficiency of evidence is acquittal).
        \103\437 U.S. 54 (1978). The double jeopardy applications of an 
appellate court's reversal for insufficient evidence are discussed 
infra, pp.1294-95.
---------------------------------------------------------------------------

        Some limited exceptions do exist with respect to the finality of 
trial judge acquittal. First, because a primary purpose of the due 
process clause is the prevention of successive trials and not of 
prosecution appeals per se, it is apparently the case that if the trial 
judge permits the case to go to the jury, which convicts, and the judge 
thereafter enters a judgment of acquittal, even one founded upon his 
belief that the evidence does not establish guilt, the prosecution may 
appeal, because the effect of a reversal would be not a new trial but 
reinstatement of the jury's verdict and judgment thereon.\104\ Second, 
if the trial judge enters or grants a motion of acquittal, even one 
based on the conclusion that the evidence is insufficient to convict, 
the prosecution may appeal if jeopardy had not yet attached in 
accordance with the federal standard.\105\

        \104\In United States v. Wilson, 420 U.S. 332 (1975), following 
a jury verdict to convict, the trial judge granted defendant's motion to 
dismiss on the ground of prejudicial delay, not a judgment of acquittal; 
the Court permitted a government appeal because reversal would have 
resulted in reinstatement of the jury's verdict, not in a retrial. In 
United States v. Jenkins, 420 U.S. 358, 365 (1975), the Court assumed, 
on the basis of Wilson, that a trial judge's acquittal of a defendant 
following a jury conviction could be appealed by the government because, 
again, if the judge's decision were set aside there would be no further 
proceedings at trial. In overruling Jenkins in United States v. Scott, 
437 U.S. 82 (1978), the Court noted the assumption and itself assumed 
that a judgment of acquittal bars appeal only when a second trial would 
be necessitated by reversal. Id. at 91 n.7.
        \105\Serfass v. United States, 420 U.S. 377 (1975) (after 
request for jury trial but before attachment of jeopardy judge dismissed 
indictment because of evidentiary insufficiency; appeal allowed); United 
States v. Sanford, 429 U.S. 14 (1976) (judge granted mistrial after jury 
deadlock, then four months later dismissed indictment for insufficient 
evidence; appeal allowed, because granting mistrial had returned case to 
pretrial status).
---------------------------------------------------------------------------

        Trial Court Rulings Terminating Trial Before Verdict.--If, after 
jeopardy attaches, a trial judge grants a motion for mistrial, 
ordinarily the defendant is subject to retrial;\106\ if, after jeopardy 
attaches, but before a jury conviction occurs, the trial judge acquits, 
perhaps on the basis that the prosecution has presented insufficient 
evidence or that the defendant has proved a requisite defense such as 
insanity or entrapment, the defendant is not sub

[[Page 1292]]
ject to retrial.\107\ However, it may be that the trial judge will grant 
a motion to dismiss that is neither a mistrial nor an acquittal, but is 
instead a termination of the trial in defendant's favor based on some 
decision not relating to his factual guilt or innocence, such as 
prejudicial preindictment delay.\108\ The prosecution may not simply 
begin a new trial but must seek first to appeal and overturn the 
dismissal, a course that was not open to federal prosecutors until 
enactment of the 1971 law.\109\ That law has resulted in tentative and 
uncertain rulings with respect to when such dismissals may be appealed 
and further proceedings directed. In the first place, it is unclear in 
many instances whether a judge's ruling is a mistrial, a dismissal, or 
an acquittal.\110\ In the second place, because the Justices have such 
differing views about the policies underlying the double jeopardy 
clause, determinations of which dismissals preclude appeals and further 
proceedings may result from shifting coalitions and from revised 
perspectives. Thus, the Court first fixed the line between permissible 
and impermissible appeals at the point at which further proceedings 
would have had to take place in the trial court if the dismissal were 
reversed. If the only thing that had to be done was to enter a judgment 
on a guilty verdict after reversal, appeal was constitutional and 
permitted under the statute;\111\ if further proceedings, such as 
continuation of the trial or some further factfinding, was necessary, 
appeal was not permitted.\112\ Now, but by a close division of the 
Court, the determining factor is not whether further proceedings must be 
had but whether the action of the trial judge, whatever its label, 
correct or not, resolved some or all of the factual elements of the 
offense charged in defendant's favor, whether, that is, the court made 
some determination related to the defendant's factual guilt or inno

[[Page 1293]]
cence.\113\ Such dismissals relating to guilt or innocence are 
functional equivalents of acquittals, whereas all other dismissals are 
functional equivalents of mistrials.

        \106\Supra, pp.1284-88.
        \107\Supra, p.1290.
        \108\United States v. Wilson, 420 U.S. 332 (1975) (preindictment 
delay); United States v. Jenkins, 420 U.S. 358 (1975) (determination of 
law based on facts adduced at trial; ambiguous whether judge's action 
was acquittal or dismissal); United States v. Scott, 437 U.S. 82 (1978) 
(preindictment delay).
        \109\Supra, pp.1289-90. See United States v. Scott, 437 U.S. 82, 
84-86 (1978); United States v. Sisson, 399 U.S. 267, 291-96 (1970).
        \110\Cf. Lee v. United States, 432 U.S. 23 (1977).
        \111\United States v. Wilson, 420 U.S. 332 (1975) (after jury 
guilty verdict, trial judge dismissed indictment on grounds of 
preindictment delay; appeal permissible because upon reversal all trial 
judge had to do was enter judgment on the jury's verdict).
        \112\United States v. Jenkins, 420 U.S. 358 (1975) (after 
presentation of evidence in bench trial, judge dismissed indictment; 
appeal impermissible because if dismissal was reversed there would have 
to be further proceedings in the trial court devoted to resolving 
factual issues going to elements of offense charged and resulting in 
supplemental findings).
        \113\United States v. Scott, 437 U.S. 82 (1978) (at close of 
evidence, court dismissed indictment for preindictment delay; ruling did 
not go to determination of guilt or innocence, but, like a mistrial, 
permitted further proceedings that would go to factual resolution of 
guilt or innocence). The Court thought that double jeopardy policies 
were resolvable by balancing the defendant's interest in having the 
trial concluded in one proceeding against the government's right to one 
complete opportunity to convict those who have violated the law. The 
defendant chose to move to terminate the proceedings and, having made a 
voluntary choice, is bound to the consequences, including the obligation 
to continue in further proceedings. Id. at 95-101. The four dissenters 
would have followed Jenkins, and accused the Court of having adopted too 
restrictive a definition of acquittal. Their view is that the rule 
against retrials after acquittal does not, as the Court believed, 
``safeguard determination of innocence; rather, it is that a retrial 
following a final judgment for the accused necessarily threatens 
intolerable interference with the constitutional policy against multiple 
trials.'' Id. at 101, 104 (Justices Brennan, White, Marshall, and 
Stevens). They would, therefore, treat dismissals as functional 
equivalents of acquittals, whenever further proceedings would be 
required after reversals.
---------------------------------------------------------------------------

                             FIFTH AMENDMENT

                            RIGHTS OF PERSONS


      Reprosecution Following Conviction

        A basic purpose of the double jeopardy clause is to protect a 
defendant ``against a second prosecution for the same offense after 
conviction.''\114\ It is ``settled'' that ``no man can be twice lawfully 
punished for the same offense.''\115\ Of course, the defendant's 
interest in finality, which informs much of double jeopardy 
jurisprudence, is quite attenuated following conviction, and he will 
most likely appeal, whereas the prosecution will ordinarily be content 
with its judgment.\116\ The situation involving reprosecution ordinarily 
arises, therefore, only in the context of successful defense appeals and 
controversies over punishment.

        \114\North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
        \115\Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). For the 
conceptually-related problem of trial for a ``separate'' offense arising 
out of the same transaction, see infra, pp.1299-1301.
        \116\A prosecutor dissatisfied with the punishment imposed upon 
the first conviction might seek another trial in order to obtain a 
greater sentence. Cf. Ciucci v. Illinois, 356 U.S. 571 (1958) (under due 
process clause, double jeopardy clause not then applying to States).
---------------------------------------------------------------------------

        Reprosecution After Reversal on Defendant's Appeal.--Generally, 
a defendant who is successful in having his conviction set aside on 
appeal may be tried again for the same offense, the assumption being 
made in the first case on the subject that, by appealing, a defendant 
has ``waived'' his objection to further prosecution by challenging the 
original conviction.\117\ Although it has char

[[Page 1294]]
acterized the ``waiver'' theory as ``totally unsound and 
indefensible,''\118\ the Court has been hesitant in formulating a new 
theory in maintaining the practice.\119\

        \117\United States v. Ball, 163 U.S. 662 (1896). The English 
rule precluded a new trial in these circumstances, and circuit Justice 
Story adopted that view. United States v. Gilbert, 25 Fed. Cas. 1287 
(No. 15,204) (C.C.D.Mass. 1834). The history is briefly surveyed in 
Justice Frankfurter's dissent in Green v. United States, 355 U.S. 184, 
200-05 (1957).
        \118\Green v. United States, 355 U.S. 184, 197 (1957). The more 
recent cases continue to reject a ``waiver'' theory. E.g., United States 
v. Dinitz, 424 U.S. 600, 609 n.11 (1976); United States v. Scott, 437 
U.S. 82, 99 (1978).
        \119\Justice Holmes in dissent in Kepner v. United States, 195 
U.S. 100, 134 (1904), rejected the ``waiver'' theory and propounded a 
theory of ``continuing jeopardy,'' which also continues to be rejected. 
See supra, p.1289 n.94. In some cases, a concept of ``election'' by the 
defendant has been suggested, United States v. Scott, 437 U.S. 82, 93 
(1978); Jeffers v. United States, 432 U.S. 137, 152-54 (1977), but it is 
not clear how this formulation might differentiate itself from 
``waiver.'' Chief Justice Burger has suggested that ``probably a more 
satisfactory explanation'' for permissibility of retrial in this 
situation ``lies in analysis of the respective interests involved,'' 
Breed v. Jones, 421 U.S. 519, 533-35 (1975), and a determination that on 
balance the interests of both prosecution and defense are well served by 
the rule. See United States v. Tateo, 377 U.S. 463, 466 (1964); Tibbs v. 
Florida, 457 U.S. 31, 39-40 (1982).
---------------------------------------------------------------------------

        An exception to full application of the retrial rule exists, 
however, when defendant on trial for an offense is convicted of a lesser 
offense and succeeds in having that conviction set aside. Thus, in Green 
v. United States,\120\ defendant had been placed on trial for first 
degree murder but convicted of second degree murder; the Court held 
that, following reversal of that conviction, he could not be tried again 
for first degree murder, although he certainly could be for second 
degree murder, on the theory that the first verdict was an implicit 
acquittal of the first degree murder charge.\121\ Even though the Court 
thought the jury's action in the first trial was clearly erroneous, the 
double jeopardy clause required that the jury's implicit acquittal be 
respected.\122\

        \120\355 U.S. 184 (1957).
        \121\The decision necessarily overruled Trono v. United States, 
199 U.S. 521 (1905), although the Court purported to distinguish the 
decision. Green v. United States, 355 U.S. 184, 194-97 (1957). See also 
Brantley v. Georgia, 217 U.S. 284 (1910) (no due process violation where 
defendant is convicted of higher offense on second trial).
        \122\See also Price v. Georgia, 398 U.S. 323 (1970). The 
defendant was tried for murder and was convicted of involuntary 
manslaughter. He obtained a reversal, was again tried for murder, and 
again convicted of involuntary manslaughter. Acknowledging that, after 
reversal, Price could have been tried for involuntary manslaughter, the 
Court nonetheless reversed the second conviction because he had been 
subjected to the hazard of twice being tried for murder, in violation of 
the double jeopardy clause, and the effect on the jury of the murder 
charge being pressed could have prejudiced him to the extent of the 
second conviction. But cf. Morris v. Mathews, 475 U.S. 237 (1986) 
(inadequate showing of prejudice resulting from reducing jeopardy-barred 
conviction for aggravated murder to non-jeopardy-barred conviction for 
first degree murder). ``To prevail in a case like this, the defendant 
must show that, but for the improper inclusion of the jeopardy-barred 
charge, the result of the proceeding probably would have been 
different.'' Id. at 247.
---------------------------------------------------------------------------

        Still another exception arises out of appellate reversals 
grounded on evidentiary insufficiency. Thus, in Burks v. United 
States,\123\

[[Page 1295]]
the appellate court set aside the defendant's conviction on the basis 
that the prosecution had failed to rebut defendant's proof of insanity. 
In directing that the defendant could not be retried, the Court observed 
that if the trial court ``had so held in the first instance, as the 
reviewing court said it should have done, a judgment of acquittal would 
have been entered and, of course, petitioner could not be retried for 
the same offense. . . . [I]t should make no difference that the 
reviewing court, rather than the trial court, determined the evidence to 
be insufficient.''\124\ The policy underlying the clause of not allowing 
the prosecution to make repeated efforts to convict forecloses giving 
the prosecution another opportunity to supply evidence which it failed 
to muster in the first proceeding. On the other hand, if a reviewing 
court reverses a jury conviction because of its disagreement on the 
weight rather than the sufficiency of the evidence, retrial is 
permitted; the appellate court's decision does not mean that acquittal 
was the only proper course, hence the deference required for acquittals 
is not merited.\125\ Also, the Burks rule does not bar reprosecution 
following a reversal based on erroneous admission of evidence, even if 
the remaining properly admitted evidence would be insufficient to 
convict.\126\

        \123\437 U.S. 1 (1978).
        \124\Id. at 10-11. See also Greene v. Massey, 437 U.S. 19 (1978) 
(remanding for determination whether appellate majority had reversed for 
insufficient evidence or whether some of the majority had based decision 
on trial error); Hudson v. Louisiana, 450 U.S. 40 (1981) (Burks applies 
where appellate court finds some but insufficient evidence adduced, not 
only where it finds no evidence). Burks was distinguished in Justices of 
Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), holding that a 
defendant who had elected to undergo a bench trial with no appellate 
review but with right of trial de novo before a jury (and with appellate 
review available) could not bar trial de novo and reverse his bench 
trial conviction by asserting that the conviction had been based on 
insufficient evidence. The two-tiered system in effect gave the 
defendant two chances at acquittal; under those circumstances jeopardy 
was not terminated by completion of the first entirely optional stage.
        \125\Tibbs v. Florida, 457 U.S. 31 (1982). The decision was 5-
to-4, the dissent arguing that weight and insufficiency determinations 
should be given identical double jeopardy clause treatment. Id. at 47 
(Justices White, Brennan, Marshall, and Blackmun).
        \126\Lockhart v. Nelson, 488 U.S. 33 (1988) (state may 
reprosecute under habitual offender statute even though evidence of a 
prior conviction was improperly admitted; at retrial, state may attempt 
to establish other prior convictions as to which no proof was offered at 
prior trial).
---------------------------------------------------------------------------

        Sentence Increases.--The double jeopardy clause protects against 
imposition of multiple punishment for the same offense.\127\ The 
application of the principle leads, however, to a number of 
complexities. In a simple case, it was held that where a court 
inadvertently imposed both a fine and imprisonment for a crime for which 
the law authorized one or the other but not both, it could

[[Page 1296]]
not, after the fine had been paid and the defendant had entered his 
short term of confinement, recall the defendant and change its judgment 
by sentencing him to imprisonment only.\128\ But the Court has held that 
the imposition of a sentence does not from the moment of imposition have 
the finality that a judgment of acquittal has. Thus, it has long been 
recognized that in the same term of court and before the defendant has 
begun serving the sentence the court may recall him and increase his 
sentence.\129\ Moreover, a defendant who is retried after he is 
successful in overturning his first conviction is not protected by the 
double jeopardy clause against receiving a greater sentence upon his 
second conviction.\130\ An exception exists with respect to capital 
punishment, the Court having held that government may not again seek the 
death penalty on retrial when on the first trial the jury had declined 
to impose a death sentence.\131\

        \127\Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874); North 
Carolina v. Pearce, 395 U.S. 711, 717 (1969). For the application of the 
principle in cases in which the same conduct has violated more than one 
criminal statute, see infra, pp.1297-99.
        \128\Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).
        \129\Bozza v. United States, 330 U.S. 160 (1947). See also 
Pollard v. United States, 352 U.S. 354, 359-60 (1957) (imposition of 
prison sentence two years after court imposed an invalid sentence of 
probation approved). Dicta in some cases had cast doubt on the 
constitutionality of the practice. United States v. Benz, 282 U.S. 304, 
307 (1931). However, United States v. DiFrancesco, 449 U.S. 117, 133-36, 
138-39 (1980), upholding a statutory provision allowing the United 
States to appeal a sentence imposed on a ``dangerous special offender,'' 
removes any doubt on that score. The Court there reserved decision on 
whether the government may appeal a sentence that the defendant has 
already begun to serve.
        \130\North Carolina v. Pearce, 395 U.S. 711, 719-21 (1969). See 
also Chaffin v. Stynchcombe, 412 U.S. 17, 23-24 (1973). The principle of 
implicit acquittal of an offense drawn from Green v. United States, 355 
U.S. 184 (1957), does not similarly apply to create an implicit 
acquittal of a higher sentence. Pearce does hold that a defendant must 
be credited with the time served against his new sentence. Supra, 395 
U.S. at 717-19.
        \131\Bullington v. Missouri, 451 U.S. 430 (1981). Four Justices 
dissented. Id. at 447 (Justices Powell, White, Rehnquist, and Chief 
Justice Burger). The Court disapproved Stroud v. United States 251 U.S. 
15 (1919), although formally distinguishing it. Bullington was followed 
in Arizona v. Rumsey, 467 U.S. 203 (1984), also involving a separate 
sentencing proceeding in which a life imprisonment sentence amounted to 
an acquittal on imposition of the death penalty. Rumsey was decided by 
7-2 vote, with only Justices White and Rehnquist dissenting.
---------------------------------------------------------------------------

        Applying and modifying these principles, the Court narrowly 
approved the constitutionality of a statutory provision for sentencing 
of ``dangerous special offenders,'' which authorized prosecution appeals 
of sentences and permitted the appellate court to affirm, reduce, or 
increase the sentence.\132\ The Court held that the provision did not 
offend the double jeopardy clause. Sentences had never carried the 
finality that attached to acquittal, and its precedents indicated to the 
Court that imposition of a sentence less than the maximum was in no 
sense an ``acquittal'' of the higher sentence. Appeal resulted in no 
further trial or other proceedings to which

[[Page 1297]]
a defendant might be subjected, only the imposition of a new sentence. 
An increase in a sentence would not constitute multiple punishment, the 
Court continued, inasmuch as it would be within the allowable sentence 
and the defendant could have no legitimate expectation of finality in 
the sentence as first given because the statutory scheme alerted him to 
the possibility of increase. Similarly upheld as within the allowable 
range of punishment contemplated by the legislature was a remedy for 
invalid multiple punishments under consecutive sentences: a shorter 
felony conviction was vacated, and time served was credited to the life 
sentence imposed for felony-murder. Even though the first sentence had 
been commuted and hence fully satisfied at the time the trial court 
revised the second sentence, the resulting punishment was ``no greater 
than the legislature intended,'' hence there was no double jeopardy 
violation.\133\

        \132\United States v. DiFrancesco, 449 U.S. 117 (1980). Four 
Justices dissented. Id. at 143, 152 (Justices Brennan, White, Marshall, 
and Stevens).
        \133\Jones v. Thomas, 491 U.S. 376, 381-82 (1989).
---------------------------------------------------------------------------
      ``For the Same Offence''

        Sometimes as difficult as determining when a defendant has been 
placed in jeopardy is determining whether he was placed in jeopardy for 
the same offense. As noted previously, the same conduct may violate the 
laws of two different sovereigns, and a defendant may be proceeded 
against by both because each may have different interests to serve.\134\ 
The same conduct may transgress two or more different statutes, because 
laws reach lesser and greater parts of one item of conduct, or may 
violate the same statute more than once, as when one robs several people 
in a group at the same time.

        \134\Supra, pp.1281-82.
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        Legislative Discretion as to Multiple Sentences.--It frequently 
happens that one activity of a criminal nature will violate one or more 
laws or that one or more violations may be charged.\135\ Although the 
question is not totally free of doubt, it appears that the double 
jeopardy clause does not limit the legislative power to split a single 
transaction into separate crimes so as to give the

[[Page 1298]]
prosecution a choice of charges that may be tried in one proceeding, 
thereby making multiple punishments possible for essentially one 
transaction.\136\ ``Where a legislature specifically authorizes 
cumulative punishment under two statutes, regardless of whether those 
two statutes proscribe the `same' conduct under Blockburger, a court's 
task of statutory construction is at an end and . . . . the trial court 
or jury may impose cumulative punishment under such statutes in a single 
trial.''\137\ The clause does, however, create a rule of construction, a 
presumption against the judiciary imposing multiple punishments for the 
same transaction unless Congress has ``spoken in language that is clear 
and definite''\138\ to pronounce its intent that multiple punishments 
indeed be imposed. The commonly used test in determining whether 
Congress would have wanted to punish as separate offenses conduct 
occurring in the same transaction, absent otherwise clearly expressed 
intent, is the ``same evidence'' rule. The rule, announced in 
Blockburger v. United States,\139\ ``is that where the same act or 
transaction constitutes a violation of two distinct statutory 
provisions, the test to be applied to determine whether there are two 
offenses or only one, is whether each provision requires proof of a fact 
which the other does not.'' Thus, in Gore v. United States,\140\ the 
Court held that defendant's one act of selling narcotics had violated 
three distinct criminal statutes, each of which required proof of a fact 
not required by the oth

[[Page 1299]]
ers; prosecuting him on all three counts in the same proceeding was 
therefore permissible.\141\ So too, the same evidence rule does not 
upset the ``established doctrine'' that, for double jeopardy purposes, 
``a conspiracy to commit a crime is a separate offense from the crime 
itself,''\142\ or the related principle that Congress may prescribe that 
predicate offenses and ``continuing criminal enterprise'' are separate 
offenses.\143\ On the other hand, in Whalen v. United States,\144\ the 
Court determined that a defendant could not be separately punished for 
rape and for killing the same victim in the perpetration of the rape, 
because it is not the case that each statute requires proof of a fact 
that the other does not, and no indication existed in the statutes and 
the legislative history that Congress wanted the separate offenses 
punished.\145\ In this as in other areas, a guilty plea ordinarily 
precludes collateral attack.\146\

        \135\There are essentially two kinds of situations here. There 
are ``double-description'' cases in which criminal law contains more 
than one prohibition for conduct arising out of a single transaction. 
E.g., Gore v. United States, 357 U.S. 386, 392-93 (1958) (one sale of 
narcotics resulted in three separate counts: (1) sale of drugs not in 
pursuance of a written order, (2) sale of drugs not in the original 
stamped package, and (3) sale of drugs with knowledge that they had been 
unlawfully imported). And there are ``unit-of-prosecution'' cases in 
which the same conduct may violate the same statutory prohibition more 
than once. E.g., Bell v. United States, 349 U.S. 81 (1955) (defendant 
who transported two women across state lines for an immoral purpose in 
one trip in same car indicted on two counts of violating Mann Act). See 
Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. 
Ct. Rev. 81, 111-22.
        \136\Albernaz v. United States, 450 U.S. 333, 343-44 (1981) 
(defendants convicted on separate counts of conspiracy to import 
marijuana and conspiracy to distribute marijuana, both charges relating 
to the same marijuana.) The concurrence objected that the clause does 
preclude multiple punishments for separate statutory offenses unless 
each requires proof of a fact that the others do not. Id. at 344. 
Inasmuch as the case involved separate offenses which met this test, 
Albernaz strictly speaking is not a square holding and previous dicta is 
otherwise, but Albernaz is well-considered dicta in view of the 
positions of at least four of its Justices who have objected to the 
dicta in other cases suggesting a constitutional restraint by the 
clause. Whalen v. United States, 445 U.S. 684, 695, 696, 699 (1980) 
(Justices White, Blackmun, Rehnquist, and Chief Justice Burger).
        \137\Missouri v. Hunter, 459 U.S. 359 (1983) (separate offenses 
of ``first degree robbery,'' defined to include robbery under threat of 
violence, and ``armed criminal action''). Only Justices Marshall and 
Stevens dissented, arguing that the legislature should not be totally 
free to prescribe multiple punishment for the same conduct, and that the 
same rules should govern multiple prosecutions and multiple punishments.
        \138\United States v. Universal C.I.T. Corp., 344 U.S. 218, 221-
22 (1952).
        \139\284 U.S. 299, 304 (1932). This case itself was not a double 
jeopardy case, but it derived the rule from Gavieres v. United States, 
220 U.S. 338, 342 (1911), which was a double jeopardy case. See also 
Carter v. McClaughry, 183 U.S. 365 (1902); Morgan v. Devine, 237 U.S. 
632 (1915); Albrecht v. United States, 273 U.S. 1 (1927); Pinkerton v. 
United States, 328 U.S. 640 (1946); American Tobacco Co. v. United 
States, 328 U.S. 781 (1946); United States v. Michener, 331 U.S. 789 
(1947); Pereira v. United States, 347 U.S. 1 (1954); Callanan v. United 
States, 364 U.S. 587 (1961).
        \140\357 U.S. 386 (1958).
        \141\See also Albernaz v. United States, 450 U.S. 333 (1981); 
Iannelli v. United States, 420 U.S. 770 (1975) (defendant convicted on 
two counts, one of the substantive offense, one of conspiracy to commit 
the substantive offense; defense raised variation of Blockburger test, 
Wharton's Rule requiring that one may not be punished for conspiracy to 
commit a crime when the nature of the crime necessitates participation 
of two or more persons for its commission; Court recognized Wharton's 
Rule as a double-jeopardy inspired presumption of legislative intent but 
held that congressional intent in this case was ``clear and 
unmistakable'' that both offenses be punished separately).
        \142\United States v. Felix, 112 S. Ct. 1377, 1385 (1992).
        \143\Garrett v. United States, 471 U.S. 773 (1985) (``continuing 
criminal enterprise'' is a separate offense under the Comprehensive Drug 
Abuse Prevention and Control Act of 1970).
        \144\445 U.S. 684 (1980).
        \145\The Court reasoned that a conviction for killing in the 
course of rape could not be had without providing all of the elements of 
the offense of rape. See also Jeffers v. United States, 432 U.S. 137 
(1977) (no indication in legislative history Congress intended defendant 
to be prosecuted both for conspiring to distribute drugs and for 
distributing drugs in concert with five or more persons); Simpson v. 
United States, 435 U.S. 6 (1978) (defendant improperly prosecuted both 
for committing bank robbery with a firearm and for using a firearm to 
commit a felony); Bell v. United States, 349 U.S. 81 (1955) 
(simultaneous transportation of two women across state lines for immoral 
purposes one violation of Mann Act rather than two).
        \146\United States v. Broce, 488 U.S. 563 (1989) (defendant who 
pled guilty to two separate conspiracy counts is barred from collateral 
attack alleging that in fact there was only one conspiracy and that 
double jeopardy applied).
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        Successive Prosecutions for ``the Same Offense.''--Successive 
prosecutions raise fundamental double jeopardy concerns extending beyond 
those raised by enhanced and multiple punishments. It is more burdensome 
for a defendant to face charges in separate proceedings, and if those 
proceedings are strung out over a lengthy period the defendant is forced 
to live in a continuing state of uncertainty. At the same time, multiple 
prosecutions allow the state to hone its trial strategies through 
successive attempts at

[[Page 1300]]
conviction.\147\ In Brown v. Ohio,\148\ the Court, apparently for the 
first time, applied the same evidence test to bar successive 
prosecutions in state court for different statutory offenses involving 
the same conduct. The defendant had been convicted of ``joyriding,'' of 
operating a motor vehicle without the owner's consent, and was then 
prosecuted and convicted of stealing the same automobile. Because the 
state courts had conceded that joyriding was a lesser included offense 
of auto theft, the Court observed that each offense required the same 
proof and for double jeopardy purposes met the Blockburger test. The 
second conviction was overturned.\149\ Application of the same 
principles resulted in a holding that a prior conviction of failing to 
reduce speed to avoid an accident did not preclude a second trial for 
involuntary manslaughter, inasmuch as failing to reduce speed was not a 
necessary element of the statutory offense of manslaughter, unless the 
prosecution in the second trial had to prove failing to reduce speed to 
establish this particular offense.\150\ In Grady v. Corbin,\151\ the 
Court modified the Brown approach, stating that the appropriate focus is 
on same conduct rather than same evidence. A subsequent prosecution is 
barred, the Court explained, if the government, to establish an 
essential element of an offense, will prove conduct that constitutes an 
offense for which the defendant has already been prosecuted.\152\ The 
Brown Court had noted some limitations applicable to its holding,\153\ 
and more have emerged subsequently. Principles appro

[[Page 1301]]
priate in the ``classically simple'' lesser-included offense and related 
situations are not readily transposible to ``multilayered conduct'' 
governed by the law of conspiracy and continuing criminal enterprise, 
and it remains the law that ``a substantive crime and a conspiracy to 
commit that crime are not the `same offense' for double jeopardy 
purposes.''\154\

        \147\See Grady v. Corbin, 495 U.S. 508, 518-19 (1990).
        \148\432 U.S. 161 (1977). Cf. In re Nielson, 131 U.S. 176 (1889) 
(prosecution of Mormon for adultery held impermissible following his 
conviction for cohabiting with more than one woman, even though second 
prosecution required proof of an additional fact--that he was married to 
another woman).
        \149\See also Harris v. Oklahoma, 433 U.S. 682 (1977) (defendant 
who had been convicted of felony murder for participating in a store 
robbery with another person who shot a store clerk could not be 
prosecuted for robbing the store, since store robbery was a lesser-
included crime in the offense of felony murder).
        \150\Illinois v. Vitale, 447 U.S. 410 (1980).
        \151\495 U.S. 508 (1990).
        \152\Id. at 521 (holding that the state could not prosecute a 
traffic offender for negligent homicide because it would attempt to 
prove conduct for which the defendant had already been prosecuted--
driving while intoxicated and failure to keep to the right of the 
median).
        \153\The Court suggested that if the legislature had provided 
that joyriding is a separate offense for each day the vehicle is 
operated without the owner's consent, so that the two indictments each 
specifying a different date on which the offense occurred would have 
required different proof, the result might have been different, but 
this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S. 
161, 169 n.8 (1977). The Court also suggested that an exception might be 
permitted where the State is unable to proceed on the more serious 
charge at the outset because the facts necessary to sustain that charge 
had not occurred or had not been discovered. Id. at 169 n.7. See also 
Jeffers v. United States, 432 U.S. 137, 150-54 (1977) (plurality 
opinion) (exception where defendant elects separate trials); Ohio v. 
Johnson, 467 U.S. 493 (1984) (trial court's acceptance of guilty plea to 
lesser included offense and dismissal of remaining charges over 
prosecution's objections does not bar subsequent prosecution on those 
``remaining'' counts).
        \154\United States v. Felix, 112 S. Ct. 1377, 1384 (1992).
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        The ``Same Transaction'' Problem.--The same conduct may also 
give rise to multiple offenses in a way that would satisfy the 
Blockburger test if that conduct victimizes two or more individuals, and 
therefore constitutes a separate offense as to each of them. In Hoag v. 
New Jersey,\155\ before the double jeopardy clause was applied to the 
States, the Court found no due process problem in successive trials 
arising out of a tavern hold-up in which five customers were robbed. 
Ashe v. Swenson,\156\ however, presented the Court with the Hoag fact 
situation directly under the double jeopardy clause. The defendant had 
been acquitted at trial of robbing one player in a poker game; the 
defense offered no testimony and did not contest evidence that a robbery 
had taken place and that each of the players had lost money. A second 
trial was held on a charge that the defendant had robbed a second of the 
seven poker players, and on the basis of stronger identification 
testimony the defendant was convicted. Reversing the conviction, the 
Court held that the doctrine of collateral estoppel\157\ was a 
constitutional rule made applicable to the States through the double 
jeopardy clause. Because the only basis upon which the jury could have 
acquitted the defendant at his first trial was a finding that he was not 
present at the robbery, hence was not one of the robbers, the State 
could not relitigate that issue; with that issue settled, there could be 
no conviction.\158\ Several Justices would have gone further and 
required a compulsory joinder of all charges against a defendant

[[Page 1302]]
growing out of a single criminal act, occurrence, episode, or 
transaction, except where a crime is not discovered until prosecution 
arising from the same transaction has begun or where the same 
jurisdiction does not have cognizance of all the crimes.\159\ But the 
Court has ``steadfastly refused to adopt the `single transaction' view 
of the Double Jeopardy Clause.''\160\

        \155\356 U.S. 464 (1958). See also Ciucci v. Illinois, 356 U.S. 
571 (1958).
        \156\397 U.S. 436 (1970).
        \157\```Collateral estoppel' is an awkward phrase . . . [which] 
means simply that when an issue of ultimate fact has once been 
determined by a final judgment, that issue cannot again be litigated 
between the same parties in any future lawsuit.'' Id. at 443. First 
developed in civil litigation, the doctrine was applied in a criminal 
case in United States v. Oppenheimer, 242 U.S. 85 (1916). See also 
Sealfon v. United States, 332 U.S. 575 (1948).
        \158\Ashe v. Swenson, 397 U.S. 436, 466 (1970). See also Harris 
v. Washington, 404 U.S. 55 (1971); Turner v. Arkansas, 407 U.S. 366 
(1972). Cf. Dowling v. United States, 493 U.S. 342 (1990), in which the 
Court concluded that the defendant's presence at an earlier crime for 
which he had been acquitted had not necessarily been decided in his 
acquittal. Dowling is distinguishable from Ashe, however, because in 
Dowling the evidence relating to the first conviction was not a 
necessary element of the second offense.
        \159\Ashe v. Swenson, 397 U.S. 436, 448 (1970) (Justices 
Brennan, Douglas, and Marshall concurring). Justices Brennan and 
Marshall adhered to their position in Brown v. Ohio, 432 U.S. 161, 170 
(1977) (concurring); and Thompson v. Oklahoma, 429 U.S. 1053 (1977) 
(dissenting from denial of certiorari).
        \160\Garrett v. United States, 471 U.S. 773, 790 (1985). 
Earlier, the approach had been rejected by Chief Justice Burger in Ashe 
v. Swenson, 397 U.S. 436, 468 (1970) (dissenting), by him and Justice 
Blackmun in Harris v. Washington, 404 U.S. 55, 57 (1971) (dissenting), 
and, perhaps, by Justice Rehnquist in Turner v. Arkansas, 407 U.S. 366, 
368 (1972) (dissenting).
---------------------------------------------------------------------------



                             FIFTH AMENDMENT

                            RIGHTS OF PERSONS

 
 
                           SELF-INCRIMINATION

      Development and Scope

        Source of this clause was the maxim ``nemo tenetur seipsum 
accusare,'' that ``no man is bound to accuse himself.'' The maxim is but 
one aspect of two different systems of law enforcement which competed in 
England for acceptance; the accusatorial and the inquisitorial. In the 
accusatorial system, which predated the reign of Henry II but was 
expanded and extended by him, first the community and then the state by 
grand and petit juries proceeded against alleged wrongdoers through the 
examination of others, and in the early years through examination of the 
defendant as well. The inquisitorial system, which developed in the 
ecclesiastical courts, compelled the alleged wrongdoer to affirm his 
culpability through the use of the oath ex officio. Under the oath, an 
official had the power to make a person before him take an oath to tell 
the truth to the full extent of his knowledge as to all matters about 
which he would be questioned; before administration of the oath the 
person was not advised of the nature of the charges against him, or 
whether he was accused of crime, and was also not informed of the nature 
of the questions to be asked.\161\

        \161\Maguire, Attack of the Common Lawyers on the Oath Ex 
Officio as Administered in the Ecclesiastical Courts in England, in 
Essays in History and Political Theory in Honor of Charles Howard 
McIlwain 199 (C. Wittke ed. 1936).
---------------------------------------------------------------------------

        The use of this oath in Star Chamber proceedings, especially to 
root out political heresies, combined with opposition to the 
ecclesiastical oath ex officio, led over a long period of time to 
general acceptance of the principle that a person could not be required 
to accuse himself under oath in any proceeding before an official 
tribunal seeking information looking to a criminal prosecution, or 
before a magistrate investigating an accusation against him with or

[[Page 1303]]
without oath, or under oath in a court of equity or a court of common 
law.\162\ The precedents in the colonies are few in number, but 
following the Revolution six states had embodied the privilege against 
self-incrimination in their constitutions,\163\ and the privilege was 
one of those recommended by several state ratifying conventions for 
inclusion in a federal bill of rights.\164\ Madison's version of the 
clause read ``nor shall be compelled to be a witness against 
himself,''\165\ but upon consideration by the House an amendment was 
agreed to insert ``in any criminal case'' in the provision.\166\

        \162\The traditional historical account is 8 J. Wigmore, A 
Treatise on the Anglo-American System of Evidence Sec. 2250 (J. 
McNaughton rev. 1961), but more recent historical studies have indicated 
that Dean Wigmore was too grudging of the privilege. Leonard Levy, 
Origins of the Fifth Amendment: The Right Against Self-Incrimination 
(1968); Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. 
Rev. 1 (1949).
        \163\3 F. Thorpe, The Federal and State Constitutions, reprinted 
in H. Doc. No. 357, 59th Congress, 2d sess. 1891 (1909) (Massachusetts); 
4 id. at 2455 (New Hampshire); 5 id. at 2787 (North Carolina), 3038 
(Pennsylvania); 6 id. at 3741 (Vermont); 7 id. at 3813 (Virginia).
        \164\Amendments were recommended by an ``Address'' of a minority 
of the Pennsylvania convention after they had been voted down as a part 
of the ratification action, 2 Bernard Schwartz, The Bill of Rights: A 
Documentary History 628, 658, 664 (1971), and then the ratifying 
conventions of Massachusetts, South Carolina, New Hampshire, Virginia, 
and New York formally took this step.
        \165\1 Annals of Congress 434 (June 8, 1789).
        \166\Id. at 753 (August 17, 1789).
---------------------------------------------------------------------------

        The historical studies cited demonstrate that in England and the 
colonies the privilege was narrower than the interpretation now 
prevailing, a common situation reflecting the gradual expansion, or 
occasional contracting, of constitutional guarantees based on the 
judicial application of the policies underlying the guarantees in the 
context of new factual patterns and practices. The difficulty is that 
the Court has generally failed to articulate the policy objectives 
underlying the privilege, usually citing a ``complex of values'' when it 
has attempted to state the interests served by it.\167\ Commonly 
mentioned in numerous cases was the assertion that the

[[Page 1304]]
privilege was designed to protect the innocent and to further the search 
for truth.\168\ It appears now, however, that the Court has rejected 
both of these as inapplicable and has settled upon the principle that 
the clause serves two interrelated interests: the preservation of an 
accusatorial system of criminal justice, which goes to the integrity of 
the judicial system, and the preservation of personal privacy from 
unwarranted governmental intrusion.\169\ In order to protect these 
interests and to preserve these values, the privilege ``is not to be 
interpreted literally.'' Rather, the ``sole concern [of the privilege] 
is, as its name indicates, with the danger to a witness forced to give 
testimony leading to the infliction of penalties affixed to the criminal 
acts.''\170\

        \167\``It reflects many of our fundamental values and most noble 
aspirations; our unwillingness to subject those suspected of crime to 
the cruel trilemma of self-accusation, perjury or contempt; our 
preference for an accusatorial rather than an inquisitorial system of 
criminal justice; our fear that self-incriminating statements will be 
elicited by inhumane treatment and abuses; our sense of fair play which 
dictates `a fair state-individual balance by requiring the government to 
leave the individual alone until good cause is shown for disturbing him 
and by requiring the government in its contest with the individual to 
shoulder the entire load, . . .'; our respect for the inviolability of 
the human personality and of the right of each individual `to a private 
enclave where he may lead a private life,' . . . , our distrust of self-
deprecatory statement; and our realization that the privilege, while 
sometimes `a shelter to the guilty,' is often `a protection to the 
innocent.''' Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1954). A 
dozen justifications have been suggested for the privilege. 8 J. 
Wigmore, A Treatise on the Anglo-American System of Evidence 2251 (J. 
McNaughton rev. 1961).
        \168\E.g. Twining v. New Jersey, 211 U.S. 78, 91 (1908); Ullmann 
v. United States, 350 U.S. 422, 426 (1956); Quinn v. United States, 349 
U.S. 155, 162-63 (1955).
        \169\``[T]he basic purposes that lie behind the privilege 
against self-incrimination do not relate to protecting the innocent from 
conviction, but rather to preserving the integrity of a judicial system 
in which even the guilty are not to be convicted unless the prosecution 
`shoulder the entire load.' . . .
        ``The basic purpose of a trial is the determination of truth, 
and it is self-evident that to deny a lawyer's help through the 
technical intricacies of a criminal trial or to deny a full opportunity 
to appeal a conviction because the accused is poor is to impede that 
purpose and to infect a criminal proceeding with the clear danger of 
convicting the innocent. . . . By contrast, the Fifth Amendment's 
privilege against self-incrimination is not an adjunct to the 
ascertainment of truth. That privilege, like the guarantees of the 
Fourth Amendment, stands as a protection of quite different 
constitutional values--values reflecting the concern of our society for 
the right of each individual to be let alone.'' Tehan v. United States 
ex rel. Shott, 382 U.S. 406, 415, 416 (1966); Miranda v. Arizona, 384 
U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760-765 
(1966). See also California v. Byers, 402 U.S. 424, 448-58 (1971) 
(Justice Harlan concurring). For a critical modern view of the 
privilege, see Friendly, The Fifth Amendment Tomorrow: The Case for 
Constitutional Change, 37 U. Cin. L. Rev. 671 (1968).
        \170\Ullmann v. United States, 350 U.S. 422, 438-39 (1956).
---------------------------------------------------------------------------

        ``The privilege afforded not only extends to answers that would 
in themselves support a conviction . . . but likewise embraces those 
which would furnish a link in the chain of evidence needed to prosecute 
. . . . [I]f the witness, upon interposing his claim, were required to 
prove the hazard . . . he would be compelled to surrender the very 
protection which the privilege is designed to guarantee. To sustain the 
privilege, it need only be evident from the implications of the 
question, in the setting in which it is asked, that a responsive answer 
to the question or an explanation of why it cannot be answered might be 
dangerous because injurious disclosure could result.''\171\ Thus, a 
judge who would deny a claim of the privilege must be ```perfectly 
clear, from a careful consideration of all the circumstances in the 
case, that the witness is mistaken, and that the

[[Page 1305]]
answer[s] cannot possibly have such tendency' to incriminate.''\172\ The 
witness must have reasonable cause to apprehend danger from an answer, 
but he may not be the sole judge of the validity of his claim. While the 
trial judge may not require a witness to disclose so much of the danger 
as to render the privilege nugatory, he must determine whether there is 
a reasonable apprehension of incrimination by considering the 
circumstances of the case, his knowledge of matters surrounding the 
inquiry, and the nature of the evidence which is demanded from the 
witness.\173\ One must explicitly claim his privilege or he will be 
deemed to have waived it, and waiver may be found where the witness has 
answered some preliminary questions but desires to stop at a certain 
point.\174\

        \171\Hoffman v. United States, 341 U.S. 479, 486-87 (1951). See 
also Emspak v. United States, 349 U.S. 190 (1955); Blau v. United 
States, 340 U.S. 159 (1950); Blau v. United States, 340 U.S. 332 (1951).
        \172\341 U.S. at 488 (quoting Temple v. Commonwealth, 75 Va. 
892, 898 (1881)). For an application of these principles, see Malloy v. 
Hogan, 378 U.S. 1, 11-14 (1964), and id. at 33 (Justices White and 
Stewart dissenting). Where government is seeking to enforce an 
essentially noncriminal statutory scheme through compulsory disclosure, 
some Justices would apparently relax the Hoffman principles. Cf. 
California v. Byers, 402 U.S. 424 (1971) (plurality opinion).
        \173\Hoffman v. United States, 341 U.S. 479 (1951); Mason v. 
United States, 244 U.S. 362 (1917).
        \174\Rogers v. United States, 340 U.S. 367 (1951); United States 
v. Monia, 317 U.S. 424 (1943). The ``waiver'' concept here as in other 
recent cases has been pronounced ``analytically [un]sound,'' with the 
Court preferring to reserve the term ``waiver'' ``for the process by 
which one affirmatively renounces the protection of the privilege.'' 
Garner v. United States, 424 U.S. 648, 654, n.9 (1976). Thus, the Court 
has settled upon the concept of ``compulsion'' as applied to ``cases 
where disclosures are required in the face of claim of privilege.'' Id. 
``[I]n the ordinary case, if a witness under compulsion to testify makes 
disclosures instead of claiming the privilege, the Government has not 
`compelled' him to incriminate himself.'' Id. at 654. Similarly, the 
Court has enunciated the concept of ``voluntariness'' to be applied in 
situations where it is claimed that a particular factor denied the 
individual a ``free choice to admit, to deny, or to refuse to answer.'' 
Id. at 654 n.9, 656-65.
---------------------------------------------------------------------------

        The privilege against self-incrimination is a personal one and 
cannot be utilized by or on behalf of any organization, such as a 
corporation. Thus, a corporation cannot object on self-incrimination 
grounds to a subpoena of its records and books or to the compelled 
testimony of those corporate agents who have been given personal 
immunity from criminal prosecution.\175\ Neither may a corporate 
official with custody of corporate documents which incriminate him 
personally resist their compelled production on the assertion of his 
personal privilege.\176\

        \175\United States v. White, 322 U.S. 694, 701 (1944); Baltimore 
& O.R.R. v. ICC, 221 U.S. 612, 622 (1911); Hale v. Henkel, 201 U.S. 43, 
69-70, 74-75 (1906).
        \176\United States v. White, supra, 699-700; Wilson v. United 
States, 221 U.S. 361, 384-385 (1911). But the government may make no 
evidentiary use of the act of production in proceeding individually 
against the corporate custodian. Braswell v. United States, 487 U.S. 99 
(1988). Cf. George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968); 
United States v. Rylander, 460 U.S. 752 (1983) (witness who had failed 
to appeal production order and thus had burden in contempt proceeding to 
show inability to then produce records could not rely on privilege to 
shift this evidentiary burden).

---------------------------------------------------------------------------

[[Page 1306]]

        A witness has traditionally been able to claim the privilege in 
any proceeding whatsoever in which testimony is legally required when 
his answer might be used against him in that proceeding or in a future 
criminal proceeding or when it might be exploited to uncover other 
evidence against him.\177\ Conversely, there is no valid claim on the 
ground that the information sought can be used in proceedings which are 
not criminal in nature.\178\ The Court in recent years has also applied 
the privilege to situations, such as police interrogation of suspects, 
in which there is no legal compulsion to speak.\179\ What the privilege 
protects against is compulsion of ``testimonial'' disclosures; requiring 
a person in custody to stand or walk in a police lineup, to speak 
prescribed words, to model particular clothing, or to give samples of 
handwriting, fingerprints, or blood does not compel him to incriminate 
himself within the mean

[[Page 1307]]
ing of the clause,\180\ although compelling him to produce private 
papers may.\181\

        \177\Thus, not only may a defendant or a witness in a criminal 
trial, including a juvenile proceeding, In re Gault, 387 U.S. 1, 42-57 
(1967), claim the privilege but so may a party or a witness in a civil 
court proceeding, McCarthy v. Arndstein, 266 U.S. 34 (1924), a potential 
defendant or any other witness before a grand jury, Reina v. United 
States, 364 U.S. 507 (1960); Counselman v. Hitchcock, 142 U.S. 547, 563 
(1892), or a witness before a legislative inquiry, Watkins v. United 
States, 354 U.S. 178, 195-96 (1957); Quinn v. United States, 349 U.S. 
155 (1955); Emspak v. United States, 349 U.S. 190 (1955), or before an 
administrative body. In re Groban, 352 U.S. 330, 333, 336-37, 345-46 
(1957); ICC v. Brimson, 154 U.S. 447, 478-80 (1894).
        \178\Allen v. Illinois, 478 U.S. 364 (1986) (declaration that 
person is ``sexually dangerous'' under Illinois law is not a criminal 
proceeding); Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984) 
(revocation of probation is not a criminal proceeding, hence ``there can 
be no valid claim of the privilege on the ground that the information 
sought can be used in revocation proceedings''). In Murphy, the Court 
went on to explain that ``a State may validly insist on answers to even 
incriminating questions and hence sensibly administer its probation 
system, as long as it recognizes that the required answers may not be 
used in a criminal proceeding and thus eliminates the threat of 
incrimination. Under such circumstances, a probationer's `right to 
immunity as a result of his compelled testimony would not be at stake' 
. . . and nothing in the Federal Constitution would prevent a State from 
revoking probation for a refusal to answer . . . .'' Id.
        \179\Miranda v. Arizona, 384 U.S. 436 (1966).
        \180\Schmerber v. California, 384 U.S. 757, 764 (1966); United 
States v. Wade, 388 U.S. 218, 221-23 (1967); Holt v. United States, 218 
U.S. 245, 252 (1910). In California v. Byers, 402 U.S. 424 (1971), four 
Justices believed that requiring any person involved in a traffic 
accident to stop and give his name and address did not involve 
testimonial compulsion and therefore the privilege was inapplicable, id. 
at 431-34 (Chief Justice Burger and Justices Stewart, White, and 
Blackmun), but Justice Harlan, id. at 434 (concurring), and Justices 
Black, Douglas, Brennan, and Marshall, id. at 459, 464 (dissenting), 
disagreed. In South Dakota v. Neville, 459 U.S. 553 (1983), the Court 
indicated as well that a State may compel a motorist suspected of drunk 
driving to submit to a blood alcohol test, and may also give the suspect 
a choice about whether to submit, but use his refusal to submit to the 
test as evidence against him. The Court rested its evidentiary ruling on 
absence of coercion, preferring not to apply the sometimes difficult 
distinction between testimonial and physical evidence. In another case, 
involving roadside videotaping of a drunk driving suspect, the Court 
found that the slurred nature of the suspect's speech, as well as his 
answers to routine booking questions as to name, address, weight, 
height, eye color, date of birth, and current age, were not testimonial 
in nature. Pennsylvania v. Muniz, 496 U.S. 582 (1990). On the other 
hand, the suspect's answer to a request to identify the date of his 
sixth birthday was considered testimonial. Id.
        \181\Fisher v. United States, 425 U.S. 391 (1976), however, 
holds that compelling a taxpayer by subpoena to produce documents 
produced by his accountants from his own papers does not involve 
testimonial self-incrimination and is not barred by the privilege. 
``[T]he 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.'' Id. at 408 (emphasis by Court). Even if the documents 
contained the writing of the person being compelled to produce them, 
that would be insufficient to trigger the privilege, unless the 
government had compelled him to write in the first place. Id. at 410 
n.11. Only if by complying with the subpoena the person would be making 
a communication that was both ``testimonial'' and ``incriminating,'' 
such as by conceding the existence of the papers or indicating that 
these are the papers sought, would he have a valid claim of privilege, 
and even there one would have to evaluate the facts and circumstances of 
the particular case to reach a determination. Id. at 410. Even further 
removed from the protection of the privilege is seizure pursuant to a 
search warrant of business records in the handwriting of the defendant. 
Andresen v. Maryland, 427 U.S. 463 (1976). A court order compelling a 
target of a grand jury investigation to sign a consent directive 
authorizing foreign banks to disclose records of any and all accounts 
over which he had a right of withdrawal is not testimonial in nature, 
since the factual assertions are required of the banks and not of the 
target. Doe v. United States, 487 U.S. 201 (1988). But in United States 
v. Doe, 465 U.S. 605 (1984), the Court distinguished Fisher, upholding 
lower courts' findings that the act of producing tax records implicates 
the privilege because it would compel admission that the records exist, 
that they were in the taxpayer's possession, and that they are 
authentic. Similarly, a juvenile court's order to produce a child 
implicates the privilege, because the act of compliance ``would amount 
to testimony regarding [the subject's] control over and possession of 
[the child].'' Baltimore Dep't of Social Services v. Bouknight, 493 U.S. 
549, 555 (1990).
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        The protection is against ``compulsory'' incrimination, and 
traditionally the Court has treated within the clause only those 
compulsions which arise from legally enforceable obligations, 
culminating in imprisonment for refusal to testify or to produce 
documents.\182\ But the compulsion need not be imprisonment; it can as

[[Page 1308]]
well be termination of public employment\183\ or disbarment of a 
lawyer\184\ as a legal consequence of a refusal to make incriminating 
admissions. In extending the concept of coercion, however, the Court has 
not developed a clear doctrinal explanation to identify the differences 
between permissible and impermissible coercion. As a general rule, it 
may be said that all of these cases involve the ordering of some feature 
of a trial in such a way that a defendant must choose between or among 
rights, with one choice being to risk or to submit to self-incriminating 
disclosures by his actions.

        \182\E.g., Marchetti v. United States, 390 U.S. 39 (1968) 
(criminal penalties attached to failure to register and make 
incriminating admissions); Malloy v. Hogan, 378 U.S. 1 (1964) (contempt 
citation on refusal to testify). See also South Dakota v. Neville, 459 
U.S. 553 (1983) (no compulsion in introducing evidence of suspect's 
refusal to submit to blood alcohol test, since state could have forced 
suspect to take test and need not have offered him a choice); Selective 
Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 
(1984) (no coercion in requirement that applicants for federal financial 
assistance for higher education reveal whether they have registered for 
draft).
        \183\Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v. 
Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass'n v. 
Commissioner of Sanitation, 392 U.S. 280 (1968). See also Lefkowitz v. 
Turley, 414 U.S. 70 (1973), holding unconstitutional state statutes 
requiring the disqualification for five years of contractors doing 
business with the State if at any time they refused to waive immunity 
and answer questions respecting their transactions with the State. The 
State can require employees or contractors to respond to inquiries, but 
only if it offers them immunity sufficient to supplant the privilege 
against self-incrimination. See also Lefkowitz v. Cunningham, 431 U.S. 
801 (1977).
        \184\Spevack v. Klein, 385 U.S. 511 (1967).
---------------------------------------------------------------------------

        It has long been the rule that a defendant who takes the stand 
in his own behalf cannot then claim the privilege to defeat cross-
examination on matters reasonably related to the subject matter of his 
direct examination,\185\ and that such a defendant may be impeached by 
proof of prior convictions.\186\ But in Griffin v. California,\187\ the 
Court refused to permit prosecutorial or judicial comment to the jury 
upon a defendant's refusal to take the stand in his own behalf, because 
such comment was a ``penalty imposed by courts for exercising a 
constitutional privilege'' and ``[i]t cuts down

[[Page 1309]]
on the privilege by making its assertion costly.''\188\ Prosecutors' 
comments violating the Griffin rule can nonetheless constitute harmless 
error.\189\ Neither may a prosecutor impeach a defendant's trial 
testimony through use of the fact that upon his arrest and receipt of a 
Miranda warning he remained silent and did not give the police the 
exculpatory story he told at trial.\190\ But where the defendant took 
the stand and testified, the Court permitted the impeachment use of his 
pre-arrest silence when that silence had in no way been officially 
encouraged, through a Miranda warning or otherwise.\191\

        \185\Brown v. Walker, 161 U.S. 591, 597-98 (1896); Fitzpatrick 
v. United States, 178 U.S. 304, 314-16 (1900); Brown v. United States, 
356 U.S. 148 (1958).
        \186\Spencer v. Texas, 385 U.S. 554, 561 (1967); cf. Michelson 
v. United States, 335 U.S. 469 (1948).
        \187\380 U.S. 609, 614 (1965). The result had been achieved in 
federal court through statutory enactment. 18 U.S.C. Sec. 3481. See 
Wilson v. United States, 149 U.S. 60 (1893). In Carter v. Kentucky, 450 
U.S. 288 (1981), the Court held that the self-incrimination clause 
required a State, upon defendant's request, to give a cautionary 
instruction to the jurors that they must disregard defendant's failure 
to testify and not draw any adverse inferences from it. This result, 
too, had been accomplished in the federal courts through statutory 
construction. Bruno v. United States, 308 U.S. 287 (1939). In Lakeside 
v. Oregon, 435 U.S. 333 (1978), the Court held that a court may give 
such an instruction, even over defendant's objection. Carter v. Kentucky 
was applied in James v. Kentucky, 466 U.S. 341 (1983) (request for jury 
``admonition'' sufficient to invoke right to ``instruction'').
        \188\While the Griffin rule continues to apply when the 
prosecutor on his own initiative asks the jury to draw an adverse 
inference from a defendant's silence, it does not apply to a 
prosecutor's ``fair response'' to a defense counsel's allegation that 
the government had denied his client the opportunity to explain his 
actions. United States v. Robinson, 485 U.S. 25, 32 (1988).
        \189\Chapman v. California, 386 U.S. 18 (1967); United States v. 
Hasting, 461 U.S. 499 (1983).
        \190\Doyle v. Ohio, 426 U.S. 610 (1976). Post-arrest silence, 
the Court stated, is inherently ambiguous, and to permit use of the 
silence would be unfair since the Miranda warning told the defendant he 
could be silent. The same result had earlier been achieved under the 
Court's supervisory power over federal trials in United States v. Hale, 
422 U.S. 171 (1975). The same principles apply to bar a prosecutor's use 
of Miranda silence as evidence of an arrestee's sanity. Wainwright v. 
Greenfield, 474 U.S. 284 (1986).
        \191\Jenkins v. Anderson, 447 U.S. 231 (1980). Cf. Baxter v. 
Palmigiano, 425 U.S. 308 (1976) (prison disciplinary hearing may draw 
adverse inferences from inmate's assertion of privilege so long as this 
was not the sole basis of decision against him).
---------------------------------------------------------------------------

        Further, the Court held inadmissible at the subsequent trial a 
defendant's testimony at a hearing to suppress evidence wrongfully 
seized, since use of the testimony would put the defendant to an 
impermissible choice between asserting his right to remain silent and 
invoking his right to be free of illegal searches and seizures.\192\ The 
Court also proscribed the introduction at a second trial of the 
defendant's testimony at his first trial, given to rebut a confession 
which was subsequently held inadmissible, since the testimony was in 
effect ``fruit of the poisonous tree,'' and had been ``coerced'' from 
the defendant through use of the confession.\193\ Most potentially far-
reaching was a holding that invalidated the penalty structure of a 
statute under which defendants could escape a possible death sentence by 
entering a guilty plea; the statute ``needlessly encourage[d]'' waivers 
of defendant's Fifth Amendment right to plead not guilty and his Sixth 
Amendment right to a jury trial.\194\

        \192\Simmons v. United States, 390 U.S. 377 (1968). The 
rationale of the case was subsequently limited to Fourth Amendment 
grounds in McGautha v. California, 402 U.S. 183, 210-13 (1971).
        \193\Harrison v. United States, 392 U.S. 219 (1968).
        \194\Jackson v. United States, 390 U.S. 570, 583 (1968).
---------------------------------------------------------------------------

        While this ``needless encouragement'' test assessed the nature 
of the choice required to be made by defendants against the

[[Page 1310]]
strength of the governmental interest in the system requiring the 
choice, the Court soon devolved another test stressing the voluntariness 
of the choice. A guilty plea entered by a defendant who correctly 
understands the consequences of the plea is voluntary unless coerced or 
obtained under false pretenses; moreover, there is no impermissible 
coercion where the defendant has the effective assistance of 
counsel.\195\ The Court in an opinion by Justice Harlan then formulated 
still another test in holding that a defendant in a capital case in 
which the jury in one process decides both guilt and sentence could be 
put to a choice between remaining silent on guilt or admitting guilt and 
being able to put on evidence designed to mitigate the possible 
sentence. The pressure to take the stand in response to the sentencing 
issue, said the Court, was not so great as to impair the policies 
underlying the self-incrimination clause, policies described in this 
instance as proscription of coercion and of cruelty in putting the 
defendant to an undeniably ``hard'' choice.\196\ Similarly, it has been 
held that requiring a defendant to give notice to the prosecution before 
trial of his intention to rely on an alibi defense and to give the names 
and addresses of witnesses who will support it does not violate the 
clause.\197\ Neither does it violate a defendant's self-incrimination 
privilege to create a presumption upon the establishment of certain 
basic facts which the jury may utilize to infer defendant's guilt unless 
he rebuts the presumption.\198\

        \195\Parker v. North Carolina, 397 U.S. 790 (1970); Brady v. 
United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 
(1970). Parker and Brady entered guilty pleas to avoid the death penalty 
when it became clear that the prosecution had solid evidence of their 
guilt; Richardson pled guilty because of his fear that an allegedly 
coerced confession would be introduced into evidence.
        \196\McGautha v. California, 402 U.S. 183, 210-20 (1971). When 
the Court subsequently required bifurcated trials in capital cases, it 
was on the basis of the Eighth Amendment, and represented no withdrawal 
from the position described here. Cf. Corbitt v. New Jersey, 439 U.S. 
212 (1978); Bordenkircher v. Hayes, 434 U.S. 357 (1978).
        \197\Williams v. Florida, 399 U.S. 78, 80-86 (1970). The 
compulsion of choice, Justice White argued for the Court, proceeded from 
the strength of the State's case and not from the disclosure 
requirement. That is, the rule did not affect whether or not the 
defendant chose to make an alibi defense and to call witnesses, but 
merely required him to accelerate the timing. It appears, however, that 
in Brooks v. Tennessee, 406 U.S. 605 (1972), the Court utilized the 
``needless encouragement'' test in striking down a state rule requiring 
the defendant to testify before any other defense witness or to forfeit 
the right to testify at all. In the Court's view, this impermissibly 
burdened the defendant's choice whether to testify or not. Another 
prosecution discovery effort was approved in United States v. Nobles, 
422 U.S. 233 (1975), in which a defense investigator's notes of 
interviews with prosecution witnesses were ordered disclosed to the 
prosecutor for use in cross-examination of the investigator. The Court 
discerned no compulsion upon defendant to incriminate himself.
        \198\``The same situation might present itself if there were no 
statutory presumption and a prima facie case of concealment with 
knowledge of unlawful importation were made by the evidence. The 
necessity of an explanation by the accused would be quite as compelling 
in that case as in this; but the constraint upon him to give testimony 
would arise there, as it arises here, simply from the force of 
circumstances and not from any form of compulsion forbidden by the 
Constitution.'' Yee Hem v. United States, 268 U.S. 178, 185 (1925), 
quoted with approval in Turner v. United States, 396 U.S. 398, 418 n.35 
(1970). Justices Black and Douglas dissented on self-incrimination 
grounds. Id. at 425. And see United States v. Gainey, 380 U.S. 63, 71, 
74 (1965) (dissenting opinions). For due process limitations on such 
presumptions, see discussion under the Fourteenth Amendment, infra.

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[[Page 1311]]

        The obligation to testify is not relieved by this clause, if, 
regardless of whether incriminating answers are given, a prosecution is 
precluded,\199\ or if the result of the answers is not incrimination, 
but rather harm to reputation or exposure to infamy or disgrace.\200\ 
The clause does not prevent a public employer from discharging an 
employee who, in an investigation specifically and narrowly directed at 
the performance of the employee's official duties, refuses to cooperate 
and to provide the employer with the desired information on grounds of 
self-incrimination.\201\ But it is unclear under what other 
circumstances a public employer may discharge an employee who has 
claimed his privilege before another investigating agency.\202\

        \199\Prosecution may be precluded by tender of immunity, infra, 
pp.1312-15, or by pardon, Brown v. Walker, 161 U.S. 591, 598-99 (1896). 
The effect of a mere tender of pardon by the President remains 
uncertain. Cf. Burdick v. United States, 236 U.S. 79 (1915) (acceptance 
necessary, and self-incrimination is possible in absence of acceptance); 
Biddle v. Perovich, 274 U.S. 480 (1927) (acceptance not necessary to 
validate commutation of death sentence to life imprisonment).
        \200\Brown v. Walker, 161 U.S. 591, 605-06 (1896); Ullmann v. 
United States, 350 U.S. 422, 430-31 (1956). Minorities in both cases had 
contended for a broader rule. Walker, 161 U.S. at 631 (Justice Field 
dissenting); Ullmann, 350 U.S. at 454 (Justice Douglas dissenting).
        \201\Gardner v. Broderick, 392 U.S. 273, 278 (1968). Testimony 
compelled under such circumstances is, even in the absence of statutory 
immunity, barred from use in a subsequent criminal trial by force of the 
Fifth Amendment itself. Garrity v. New Jersey, 385 U.S. 493 (1967). 
However, unlike public employees, persons subject to professional 
licensing by government appear to be able to assert their privilege and 
retain their licenses. Cf. Spevack v. Klein, 385 U.S. 511 (1967) (lawyer 
may not be disbarred solely because he refused on self-incrimination 
grounds to testify at a disciplinary proceeding), approved in Gardner v. 
Broderick, 392 U.S. at 277-78. Justices Harlan, Clark, Stewart, and 
White dissented generally. 385 U.S. 500, 520, 530.
        \202\See Slochower v. Board of Education, 350 U.S. 551 (1956), 
limited by Lerner v. Casey, 357 U.S. 468 (1958), and Nelson v. County of 
Los Angeles, 362 U.S. 1 (1960), which were in turn apparently limited by 
Garrity and Gardner.
---------------------------------------------------------------------------

        Finally, the rules established by the clause and the judicial 
interpretations are applicable against the States to the same degree 
that they apply to the Federal Government,\203\ and neither sovereign 
can compel discriminatory admissions which would incriminate the person 
in the other jurisdiction.\204\

        \203\Malloy v. Hogan, 378 U.S. 1 (1964), (overruling Twining v. 
New Jersey, 211 U.S. 78 (1908), and Adamson v. California, 332 U.S. 46 
(1947)).
        \204\Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964), 
(overruling United States v. Murdock, 284 U.S. 141 (1931) (Federal 
Government could compel a witness to give testimony which might 
incriminate him under state law), Knapp v. Schweitzer, 357 U.S. 371 
(1958) (State may compel a witness to give testimony which might 
incriminate him under federal law), and Feldman v. United States, 322 
U.S. 487 (1944) (testimony compelled by a State may be introduced into 
evidence in the federal courts)). Murphy held that a State could compel 
testimony under a grant of immunity but that since the State could not 
extend the immunity to federal courts the Supreme Court would not permit 
the introduction of evidence into federal courts which had been 
compelled by a State or which had been discovered because of state 
compelled testimony. The result was apparently a constitutionally 
compelled one arising from the Fifth Amendment itself, 378 U.S. at 75-
80, rather than one taken pursuant to the Court's supervisory power as 
Justice Harlan would have preferred. Id. at 80 (concurring). Congress 
has power to confer immunity in state courts as well as in federal in 
order to elicit information, Adams v. Maryland, 347 U.S. 179 (1954), but 
whether Congress must do so or whether the immunity would be conferred 
simply through the act of compelling the testimony Murphy did not say.
        Whether testimony could be compelled by either the Federal 
Government or a State that could incriminate a witness in a foreign 
jurisdiction is unsettled, see Zicarelli v. New Jersey State Comm'n of 
Investigation, 406 U.S. 472, 480, 481 (1972) (reserving question), but 
an affirmative answer seems unlikely. Cf. Murphy, supra, 378 U.S. at 58-
63, 77.

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[[Page 1312]]
      The Power To Compel Testimony and Disclosure

        Immunity.--``Immunity statutes, which have historical roots deep 
in Anglo-American jurisprudence, are not incompatible [with the values 
of the self-incrimination clause]. Rather they seek a rational 
accommodation between the imperatives of the privilege and the 
legitimate demands of government to compel citizens to testify. The 
existence of these statutes reflects the importance of testimony, and 
the fact that many offenses are of such a character that the only 
persons capable of giving useful testimony are those implicated in the 
crime.''\205\ Apparently the first immunity statute was enacted by 
Parliament in 1710 \206\ and it was widely copied in the colonies. The 
first federal immunity statute was enacted in 1857, and immunized any 
person who testified before a congressional committee from prosecution 
for any matter ``touching which'' he had testified.\207\

        \205\Kastigar v. United States, 406 U.S. 441, 445-46 (1972). It 
has been held that the Fifth Amendment itself precludes the use as 
criminal evidence of compelled admissions, Garrity v. New Jersey, 385 
U.S. 493 (1967), but this case and dicta in others is unreconciled with 
the cases that find that one may ``waive'' though inadvertently the 
privilege and be required to testify and incriminate oneself. Rogers v. 
United States, 340 U.S. 367 (1951).
        \206\9 Anne, c. 14, 3-4 (1710). See Kastigar v. United States, 
406 U.S. 441, 445 n.13 (1972).
        \207\Ch. 19, 11 Stat. 155 (1857). There was an exception for 
perjury committed while testifying before Congress.
---------------------------------------------------------------------------

        Revised in 1862 so as merely to prevent the use of the 
congressional testimony at a subsequent prosecution of any congressional 
witness,\208\ the statute was soon rendered unenforceable by the ruling 
in Counselman v. Hitchcock\209\ that an analogous limited

[[Page 1313]]
immunity statute was unconstitutional because it did not confer an 
immunity coextensive with the privilege it replaced. Counselman was 
ambiguous with regard to its grounds because it identified two faults in 
the statute: it did not proscribe ``derivative'' evidence\210\ and it 
only prohibited future use of the compelled testimony.\211\ The latter 
language accentuated a division between adherents of ``transactional'' 
immunity and of ``use'' immunity which has continued to the 
present.\212\ In any event, following Counselman, Congress enacted a 
statute which conferred transactional immunity as the price for being 
able to compel testimony,\213\ and the Court sustained this law in a 
five-to-four decision.\214\

        \208\Ch. 11, 12 Stat. 333 (1862).
        \209\142 U.S. 547 (1892). The statute struck down was ch. 13, 15 
Stat. 37 (1868).
        \210\Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). And see 
id. at 586.
        \211\Id. at 585-86.
        \212\``Transactional'' immunity means that once a witness has 
been compelled to testify about an offense, he may never be prosecuted 
for that offense, no matter how much independent evidence might come to 
light; ``use'' immunity means that no testimony compelled to be given 
and no evidence derived from or obtained because of the compelled 
testimony may be used if the person were subsequently prosecuted on 
independent evidence for the offense.
        \213\Ch. 83, 27 Stat. 443 (1893).
        \214\Brown v. Walker, 161 U.S. 591 (1896). The majority reasoned 
that one was excused from testifying only if there could be legal 
detriment flowing from his act of testifying. If a statute of 
limitations had run or if a pardon had been issued with regard to a 
particular offense, a witness could not claim the privilege and refuse 
to testify, no matter how much other detriment, such as loss of 
reputation, would attach to his admissions. Therefore, since the statute 
acted as a pardon or amnesty and relieved the witness of all legal 
detriment, he must testify. The four dissenters contended essentially 
that the privilege protected against being compelled to incriminate 
oneself regardless of any subsequent prosecutorial effort, id. at 610, 
and that a witness was protected against infamy and disparagement as 
much as prosecution. Id. at 628.
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        ``The 1893 statute has become part of our constitutional fabric 
and has been included `in substantially the same terms, in virtually all 
of the major regulatory enactments of the Federal Government.'''\215\ So 
spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker 
and upholding the constitutionality of a federal immunity statute.\216\ 
Because all but one of the immunity acts passed after Brown v. Walker 
were transactional immunity statutes,\217\ the question of the 
constitutional sufficiency of use im

[[Page 1314]]
munity did not arise, although dicta in cases dealing with immunity 
continued to assert the necessity of the former type of grant.\218\ But 
beginning in 1964, when it applied the self-incrimination clause to the 
States, the Court was faced with the problem which arose because a State 
could grant immunity only in its own courts and not in the courts of 
another State or of the United States.\219\ On the other hand, to 
foreclose the States from compelling testimony because they could not 
immunize a witness in a subsequent ``foreign'' prosecution would 
severely limit state law enforcement efforts. Therefore, the Court 
emphasized the ``use'' restriction rationale of Counselman and announced 
that as a ``constitutional rule, a state witness could not be compelled 
to incriminate himself under federal law unless federal authorities were 
precluded from using either his testimony or evidence derived from it,'' 
and thus formulated a use restriction to that effect.\220\ Then, while 
refusing to adopt the course because of statutory interpretation 
reasons, the Court indicated that use restriction in a federal 
regulatory scheme requiring the reporting of incriminating information 
was ``in principle an attractive and apparently practical resolution of 
the difficult problem before us,'' citing Murphy with apparent 
approval.\221\

        \215\Ullmann v. United States, 350 U.S. 422, 438 (1956), 
(quoting Shapiro v. United States, 335 U.S. 1, 6 (1948)).
        \216\``[The] sole concern [of the privilege] is . . . with the 
danger to a witness forced to give testimony leading to the infliction 
of `penalties affixed to the criminal acts'. . . . Immunity displaces 
the danger. Once the reason for the privilege ceases, the privilege 
ceases.'' Id. at 438-39. The internal quotation is from Boyd v. United 
States, 116 U.S. 616, 634 (1886).
        \217\Kastigar v. United States, 406 U.S. 441, 457-58 (1972); 
Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Justice Brennan 
dissenting). The exception was an immunity provision of the bankruptcy 
laws, 30 Stat. 548 (1898), 11 U.S.C. Sec. 25(a)(10), repealed by 84 
Stat. 931 (1970). The right of a bankrupt to insist on his privilege 
against self-incrimination as against this statute was recognized in 
McCarthy v. Arndstein, 266 U.S. 34, 42 (1924), ``because the present 
statute fails to afford complete immunity from a prosecution.'' The 
statute also failed to prohibit the use of derivative evidence. 
Arndstein v. McCarthy, 254 U.S. 71 (1920).
        \218\E.g., Hale v. Henkel, 201 U.S. 43, 67 (1906); United States 
v. Monia, 317 U.S. 424, 425, 428 (1943); Smith v. United States, 337 
U.S. 137, 141, 146 (1949); United States v. Murdock, 284 U.S. 141 149 
(1931); Adams v. Maryland, 347 U.S. 179, 182 (1954). In Ullmann v. 
United States, 350 U.S. 422, 436-37 (1956), Justice Frankfurter 
described the holding of Counselman as relating to the absence of a 
prohibition on the use of derivative evidence.
        \219\Malloy v. Hogan, 378 U.S. 1 (1964), extended the clause to 
the States. That Congress could immunize a federal witness from state 
prosecution and, of course, extend use immunity to state courts, was 
held in Adams v. Maryland, 347 U.S. 179 (1954), and had been recognized 
in Brown v. Walker, 161 U.S. 591 (1896).
        \220\Murphy v. Waterfront Comm'n, 378 U.S. 52, 77-99 (1964). 
Concurring, Justices White and Stewart argued at length in support of 
the constitutional sufficiency of use immunity and the lack of a 
constitutional requirement of transactional immunity. Id. at 92. See 
also Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men 
Ass'n v. Commissioner of Sanitation, 392 U.S. 280 (1968); Garrity v. New 
Jersey, 385 U.S. 493 (1967), recognizing the propriety of compelling 
testimony with a use restriction attached.
        \221\Marchetti v. United States, 390 U.S. 39, 58 (1968).
---------------------------------------------------------------------------

        Congress thereupon enacted a statute replacing all prior 
immunity statutes and adopting a use-immunity restriction only.\222\ 
Soon tested, this statute was sustained in Kastigar v. United

[[Page 1315]]
States.\223\ ``[P]rotection coextensive with the privilege is the degree 
of protection which the Constitution requires,'' wrote Justice Powell 
for the Court, ``and is all that the Constitution requires. . . .''\224\ 
``Transactional immunity, which accords full immunity from prosecution 
for the offense to which the compelled testimony relates, affords the 
witness considerably broader protection than does the Fifth Amendment 
privilege. The privilege has never been construed to mean that one who 
invokes it cannot subsequently be prosecuted. Its sole concern is to 
afford protection against being `forced to give testimony leading to the 
infliction of ``penalties affixed to . . . criminal acts.''' Immunity 
from the use of compelled testimony and evidence derived directly and 
indirectly therefrom affords this protection. It prohibits the 
prosecutorial authorities from using the compelled testimony in any 
respect, and it therefore insures that the testimony cannot lead to the 
infliction of criminal penalties on the witness.''\225\

        \222\Organized Crime Control Act of 1970, Pub. L. No. 91-452, 
Sec. 201(a), 84 Stat. 922, 18 U.S.C. Sec. Sec. 6002-03. Justice 
Department officials have the authority under the Act to decide whether 
to seek immunity, and courts will not apply ``constructive'' use 
immunity absent compliance with the statute's procedures. United States 
v. Doe, 465 U.S. 605 (1984).
        \223\406 U.S. 441 (1972). A similar state statute was sustained 
in Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472 
(1972).
        \224\Kastigar v. United States, 406 U.S. 441, 459 (1972).
        \225\Id. at 453. Joining Justice Powell in the opinion were 
Justices Stewart, White, and Blackmun, and Chief Justice Burger. 
Justices Douglas and Marshall dissented, contending that a ban on use 
could not be enforced even if a use ban was constitutionally adequate. 
Id. at 462, 467. Justices Brennan and Rehnquist did not participate but 
Justice Brennan's views that transactional immunity was required had 
been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) 
(dissenting). See also New Jersey v. Portash, 440 U.S. 451 (1979) 
(prosecution use of defendant's immunized testimony to impeach him at 
trial violates self-incrimination clause). Neither the clause nor the 
statute prevents the perjury prosecution of an immunized witness or the 
use of all his testimony to prove the commission of perjury. United 
States v. Apfelbaum, 445 U.S. 115 (1980). See also United States v. 
Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564 
(1976). Because use immunity is limited, a witness granted use immunity 
for grand jury testimony may validly invoke his Fifth Amendment 
privilege in a civil deposition proceeding when asked whether he had 
``so testified'' previously, the deposition testimony not being covered 
by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983).
---------------------------------------------------------------------------

        Required Records Doctrine.--While the privilege is applicable to 
one's papers and effects,\226\ it does not extend to corporate persons, 
hence corporate records, as has been noted, are subject to compelled 
production.\227\ In fact, however, the Court has greatly narrowed the 
protection afforded in this area to natural persons by developing the 
``required records'' doctrine. That is, it has held ``that the privilege 
which exists as to private papers cannot be maintained in relation to 
`records required by law to be kept in order that there may be suitable 
information of transactions which are the appropriate subjects of 
governmental regulation and the en

[[Page 1316]]
forcement of restrictions validly established.'''\228\ This exception 
developed out of, as Justice Frankfurter showed in dissent, the rule 
that documents which are part of the official records of government are 
wholly outside the scope of the privilege; public records are the 
property of government and are always accessible to inspection. Because 
government requires certain records to be kept to facilitate the 
regulation of the business being conducted, so the reasoning goes, the 
records become public at least to the degree that government could 
always scrutinize them without hindrance from the record-keeper. ``If 
records merely because required to be kept by law ipso facto become 
public records, we are indeed living in glass houses. Virtually every 
major public law enactment--to say nothing of State and local 
legislation--has record-keeping provisions. In addition to record-
keeping requirements, is the network of provisions for filing reports. 
Exhaustive efforts would be needed to track down all the statutory 
authority, let alone the administrative regulations, for record-keeping 
and reporting requirements. Unquestionably they are enormous in 
volume.''\229\

        \226\Boyd v. United States, 116 U.S. 616 (1886). Supra, p.1225. 
But see Fisher v. United States, 425 U.S. 391 (1976).
        \227\Supra, p.1305.
        \228\Shapiro v. United States, 335 U.S. 1, 33 (1948), (quoting 
Davis v. United States, 328 U.S. 582, 589-90 (1946), (quoting in turn 
Wilson v. United States, 221 U.S. 361, 380 (1911))). Wilson is the 
source of the required-records doctrine in its dicta, the holding in the 
case being the familiar one that a corporate officer cannot claim the 
privilege against self-incrimination to refuse to surrender corporate 
records in his custody. Cf. Heike v. United States, 227 U.S. 131 (1913). 
Davis was a search and seizure case and dealt with gasoline ration 
coupons which were government property even though in private 
possession. See Shapiro, supra, 36, 56-70 (Justice Frankfurter 
dissenting).
        \229\Id. at 51.
---------------------------------------------------------------------------

        ``It may be assumed at the outset that there are limits which 
the Government cannot constitutionally exceed in requiring the keeping 
of records which may be inspected by an administrative agency and may be 
used in prosecuting statutory violations committed by the recordkeeper 
himself.''\230\ But the only limit which the Court suggested in Shapiro 
was that there must be ``a sufficient relation between the activity 
sought to be regulated and the public concern so that the Government can 
constitutionally regulate or forbid the basic activity concerned, and 
can constitutionally require the keeping of particular records, subject 
to inspection by the Administrator.''\231\ That there are limits 
established by the self-incrimination clause itself rather than by a 
subject matter jurisdiction test is evident in the Court's consideration 
of reporting and disclosure requirements implicating but not directly 
involving the required-records doctrine.

        \230\Id. at 32.
        \231\Id.
        
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[[Page 1317]]

        Reporting and Disclosure.--The line of cases begins with United 
States v. Sullivan\232\ in which a unanimous Court held that the Fifth 
Amendment did not privilege a bootlegger in not filing an income tax 
return because the filing would have disclosed the illegality in which 
he was engaged. ``It would be an extreme if not an extravagant 
application of the Fifth Amendment to say that it authorized a man to 
refuse to state the amount of his income because it had been made in 
crime.'' Justice Holmes stated for the Court. However, ``[i]f the form 
of return provided called for answers that the defendant was privileged 
from making he could have raised the objection in the return . . . .'' 
Utilizing its taxing power to reach gambling activities over which it 
might not have had jurisdiction otherwise,\233\ Congress enacted a 
complicated statute imposing an annual occupational tax on gamblers and 
an excise tax on all their wages, and coupled the tax with an annual 
registration requirement under which each gambler must file with the IRS 
a declaration of his business with identification of his place of 
business and his employees and agents, filings which were made available 
to state and local law enforcement agencies. These requirements were 
upheld by the Court against self-incrimination challenges on the three 
grounds that (1) the privilege did not excuse a complete failure to 
file, (2) since the threshold decision to gamble was voluntary, the 
required disclosures were not compulsory, and (3) since registration 
required disclosure only of prospective conduct, the privilege, limited 
to past or present acts, did not apply.\234\

        \232\274 U.S. 259, 263, 264 (1927). Sullivan was reaffirmed in 
Garner v. United States, 424 U.S. 648 (1976), holding that a taxpayer's 
privilege against self-incrimination was not violated when he failed to 
claim his privilege on his tax returns, and instead gave incriminating 
information leading to conviction. One must assert one's privilege to 
alert the Government to the possibility that it is seeking to obtain 
incriminating material. It is not coercion forbidden by the clause that 
upon a claim of the privilege the Government could seek an indictment 
for failure to file, since a valid claim of privilege cannot be the 
basis of a conviction. The taxpayer was not entitled to a judicial 
ruling on the validity of his claim and an opportunity to reconsider if 
the ruling went against him, irrespective of whether a good-faith 
erroneous assertion of the privilege could subject him to prosecution, a 
question not resolved.
        \233\The expansion of the commerce power would now obviate 
reliance on the taxing power.
        \234\United States v. Kahriger, 345 U.S. 22 (1953); Lewis v. 
United States, 348 U.S. 419 (1955).
---------------------------------------------------------------------------

        Constitutional limitations appeared, however, in Albertson v. 
SACB,\235\ which struck down under the self-incrimination clause an 
order pursuant to statute requiring registration by individual members 
of the Communist Party or associated organizations. ``In Sullivan the 
questions in the income tax return were neutral on their face and 
directed at the public at large, but here they are di

[[Page 1318]]
rected at a highly selective group inherently suspect of criminal 
activities. Petitioners' claims are not asserted in an essentially 
noncriminal and regulatory area of inquiry, but against an inquiry in an 
area permeated with criminal statutes, where response to any of the 
form's questions in context might involve the petitioners in the 
admission of a crucial element of a crime.''\236\

        \235\382 U.S. 70 (1965).
        \236\Id. at 79. The decision was unanimous, Justice White not 
participating. The same issue had been held not ripe for adjudication in 
Communist Party v. SACB, 367 U.S. 1, 105-10 (1961).
---------------------------------------------------------------------------

        The gambling tax reporting scheme was next struck down by the 
Court.\237\ Because of the pervasiveness of state laws prohibiting 
gambling, said Justice Harlan for the Court, ``the obligations to 
register and to pay the occupational tax created for petitioner `real 
and appreciable,' and not merely `imaginary and unsubstantial,' hazards 
of self-incrimination.''\238\ Overruling Kahriger and Lewis, the Court 
rejected its earlier rationales. Registering per se would have exposed a 
gambler to dangers of state prosecution, so Sullivan did not apply.\239\ 
Any contention that the voluntary engagement in gambling ``waived'' the 
self-incrimination claim, because there is ``no constitutional right to 
gamble,'' would nullify the privilege.\240\ And the privilege was not 
governed by a ``rigid chronological distinction'' so that it protected 
only past or present conduct, but also reached future self-incrimination 
the danger of which is not specu

[[Page 1319]]
lative and insubstantial.\241\ Significantly, then, Justice Harlan 
turned to distinguishing the statutory requirements here from the 
``required records'' doctrine of Shapiro. ``First, petitioner . . . was 
not . . . obliged to keep and preserve records `of the same kind as he 
has customarily kept'; he was required simply to provide information, 
unrelated to any records which he may have maintained, about his 
wagering activities. This requirement is not significantly different 
from a demand that he provide oral testimony . . . . Second, whatever 
`public aspects' there were to the records at issue in Shapiro, there 
are none to the information demanded from Marchetti. The Government's 
anxiety to obtain information known to a private individual does not 
without more render that information public; if it did, no room would 
remain for the application of the constitutional privilege. Nor does it 
stamp information with a public character that the Government has 
formalized its demands in the attire of a statute; if this alone were 
sufficient, the constitutional privilege could be entirely abrogated by 
any Act of Congress. Third, the requirements at issue in Shapiro were 
imposed in `an essentially non-criminal and regulatory area of inquiry' 
while those here are directed to a `selective group inherently suspect 
of criminal activities.' The United States' principal interest is 
evidently the collection of revenue, and not the punishment of gamblers, 
. . . but the characteristics of the activities about which information 
is sought, and the composition of the groups to which inquiries are 
made, readily distinguish this situation from that in Shapiro.''\242\

        \237\Marchetti v. United States, 390 U.S. 39 (1968) 
(occupational tax); Grosso v. United States, 390 U.S. 62 (1968) 
(wagering excise tax). In Haynes v. United States, 390 U.S. 85 (1968), 
the Court struck down a requirement that one register a firearm that it 
was illegal to possess. The following Term on the same grounds the Court 
voided a statute prohibiting the possession of marijuana without having 
paid a transfer tax and registering. Leary v. United States, 395 U.S. 6 
(1969); United States v. Covington, 395 U.S. 57 (1969). However, a 
statute was upheld which prohibited the sale of narcotics to a person 
who did not have a written order on a prescribed form, since the 
requirement caused the self-incrimination of the buyer but not the 
seller, the Court viewing the statute as actually a flat proscription on 
sale rather than a regulatory measure. Minor v. United States, 396 U.S. 
87 (1969). The congressional response was reenactment of the 
requirements coupled with use immunity. United States v. Freed, 401 U.S. 
601 (1971).
        \238\Marchetti v. United States, 390 U.S. 39, 48 (1968).
        \239\``Every element of these requirements would have served to 
incriminate petitioners; to have required him to present his claim to 
Treasury officers would have obliged him `to prove guilt to avoid 
admitting it.''' Id. at 50.
        \240\``The question is not whether petitioner holds a `right' to 
violate state law, but whether, having done so, he may be compelled to 
give evidence against himself. The constitutional privilege was intended 
to shield the guilty and imprudent as well as the innocent and 
foresighted; if such an inference of antecedent choice were alone enough 
to abrogate the privilege's protection, it would be excluded from the 
situations in which it has historically been guaranteed, and withheld 
from those who most require it.'' Id. at 51. But cf. California v. 
Byers, 402 U.S. 424, 434 (1971) (plurality opinion), in which it is 
suggested that because there is no ``right'' to leave the scene of an 
accident a requirement that a person involved in an accident stop and 
identify himself does not violate the self-incrimination clause.
        \241\Marchetti v. United States, 390 U.S. 39, 52-54 (1968). 
``The central standard for the privilege's application has been whether 
the claimant is confronted by substantial and `real,' and not merely 
trifling or imaginary, hazards of incrimination. This principle does not 
permit the rigid chronological distinctions adopted in Kahriger and 
Lewis. We see no reason to suppose that the force of the constitutional 
prohibition is diminished merely because confession of a guilty purpose 
precedes the act which it is subsequently employed to evidence.'' Id. at 
53-54. Cf. United States v. Freed, 401 U.S. 601, 605-07 (1971).
        \242\Marchetti v. United States, 390 U.S. 39, 57 (1968).
---------------------------------------------------------------------------

        Most recent of this line of cases is California v. Byers,\243\ 
which indicates that the Court has yet to settle on an ascertainable 
standard for judging self-incrimination claims in cases where government 
is asserting an interest other than criminal law enforcement. Byers 
sustained the constitutionality of a statute which required the driver 
of any automobile involved in an accident to stop and give his name and 
address. The state court had held that a driver who reasonably believed 
that compliance with the statute would result in self-incrimination 
could refuse to comply. A plurality of the Court, however, determined 
that Sullivan and Shapiro applied and not the Albertson-Marchetti line 
of cases, because the

[[Page 1320]]
purpose of the statute was to promote the satisfaction of civil 
liabilities resulting from automobile accidents and not criminal 
prosecutions, and because the statute was directed to all drivers and 
not to a group which was either ``highly selective'' or ``inherently 
suspect of criminal activities.'' The combination of a noncriminal 
motive with the general character of the requirement made too slight for 
reliance the possibility of incrimination.\244\ Justice Harlan concurred 
to make up the majority on the disposition of the case, disagreeing with 
the plurality's conclusion that the stop and identification requirement 
did not compel incrimination.\245\ However, the Justice thought that 
where there is no governmental purpose to enforce a criminal law and 
instead government is pursuing other legitimate regulatory interests, it 
is permissible to apply a balancing test between the government's 
interest and the individual's interest. When he balanced the interests 
protected by the Amendment--protection of privacy and maintenance of an 
accusatorial system--with the noncriminal purpose, the necessity for 
self-reporting as a means of securing information, and the nature of the 
disclosures required, Justice Harlan voted to sustain the statute.\246\ 
Byers was applied in Baltimore Dep't of Social Services v. 
Bouknight\247\ to uphold a juvenile court's order that the mother of a 
child under the court's supervision produce the child. Although in this 
case the mother was suspected of having abused or murdered her child, 
the order was justified for ``compelling reasons unrelated to criminal 
law enforcement'': concern for the child's safety.\248\ Moreover, be

[[Page 1321]]
cause the mother had custody of her previously abused child only as a 
result of the juvenile court's order, the Court analogized to the 
required records cases to conclude that the mother had submitted to the 
requirements of the civil regulatory regime as the child's 
``custodian.''

        \243\402 U.S. 424 (1971)
        \244\Id. at 427-31 (Chief Justice Burger and Justices Stewart, 
White, and Blackmun).
        \245\``The California Supreme Court was surely correct in 
considering that the decisions of this Court have made it clear that 
invocation of the privilege is not limited to situations where the 
purpose of the inquiry is to get an incriminating answer . . . . [I]t 
must be recognized that a reading of our more recent cases . . . 
suggests the conclusion that the applicability of the privilege depends 
exclusively on a determination that, from the individual's point of 
view, there are `real' and not `imaginary' risks of self-incrimination 
in yielding to state compulsion. Thus, Marchetti and Grosso . . . start 
from an assumption of a non-prosecutorial governmental purpose in the 
decision to tax gambling revenues; those cases go on to apply what in 
another context I have called the `real danger v. imaginary possibility 
standard . . . .' A judicial tribunal whose position with respect to the 
elaboration of constitutional doctrine is subordinate to that of this 
Court certainly cannot be faulted for reading these opinions as 
indicating that the `inherently-suspect-class' factor is relevant only 
as an indicium of genuine incriminating risk as assessed from the 
individual's point of view.'' Id. at 437-38.
        \246\Id. at 448-58. The four dissenters argued that it was 
unquestionable that Byers would have faced real risks of self-
incrimination by compliance with the statute and that this risk was 
sufficient to invoke the privilege. Id. at 459, 464 (Justices Black, 
Douglas, Brennan, and Marshall).
        \247\493 U.S. 549 (1990).
        \248\Id. at 561. By the same token, the Court concluded that the 
targeted group--persons who care for children pursuant to a juvenile 
court's custody order--is not a group ``inherently suspect of criminal 
activities'' in the Albertson-Marchetti sense.
---------------------------------------------------------------------------

                             FIFTH AMENDMENT

                            RIGHTS OF PERSONS

                           SELF-INCRIMINATION


      Confessions: Police Interrogation, Due Process, and Self-
        Incrimination

        ``In criminal trials, in the courts of the United States, 
wherever a question arises whether a confession is incompetent because 
not voluntary, the issue is controlled by that portion of the Fifth 
Amendment to the Constitution of the United States, commanding that no 
person `shall be compelled in any criminal case to be a witness against 
himself.'''\249\ This language in an 1897 case marked a sharp if 
unacknowledged break with the doctrine of previous cases in which the 
Court had applied the common-law test of voluntariness to determine the 
admissibility of confessions, and, while the language was never 
expressly disavowed in subsequent cases, the Court seems nevertheless to 
have proceeded along due process standards rather than self-
incrimination analysis. Because the self-incrimination clause for most 
of this period was not applicable to the States, the admissibility of 
confessions in state courts was determined under due process standards 
developed from common-law voluntariness principles. It was only after 
the Court extended the self-incrimination clause to the States that a 
divided Court reaffirmed and extended the 1897 ruling and imposed on 
both federal and state trial courts new rules for admitting or excluding 
confessions and other admissions made to police during custodial 
interrogation.\250\ Though recent research tends to treat as 
oversimplified Wigmore's conclusion that ``there never was any 
historical connection . . . between the constitutional clause and the 
confession-doctrine,''\251\ the fact is that the contention, coupled 
with the inapplicability of the self-incrimination clause to the States, 
was apparently the basis until recently for the Supreme Court's 
adjudication of confession cases.

        \249\Bram v. United States, 168 U.S. 532, 542 (1897).
        \250\Miranda v. Arizona, 384 U.S. 436 (1966).
        \251\3 J. Wigmore, A Treatise on the Anglo-American System of 
Evidence Sec. 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id., 
Sec. 2266 (McNaughton rev. 1961). It appears that while the two rules 
did develop separately, they did stem from some of the same 
considerations, and, in fact, the confession rule may be considered in 
important respects to be an off-shoot of the privilege against self-
incrimination. See L. Levy, Origins of the Fifth Amendment--The Right 
against Self-Incrimination 325-32, 495 n.43 (1968). See also Culombe v. 
Connecticut, 367 U.S. 568, 581-84, especially 583 n.25 (1961) (Justice 
Frankfurter announcing judgment of the Court).

---------------------------------------------------------------------------

[[Page 1322]]

        The Common Law Rule.--Not until the latter part of the 
eighteenth century did there develop a rule excluding coerced 
confessions from admission at trial; prior to that time, even 
confessions obtained by torture were admissible. As the rule developed 
in England and in early United States jurisprudence, the rationale was 
the unreliability of the confession's contents when induced by a promise 
of benefit or a threat of harm.\252\ In its first decision on the 
admissibility of confessions, the Court adopted the common-law rule, 
stressing that while a ``voluntary confession of guilt is among the most 
effectual proofs in the law, from the very nature of such evidence it 
must be subjected to careful scrutiny and received with great caution.'' 
``[T]he presumption upon which weight is given to such evidence, namely, 
that one who is innocent will not imperil his safety or prejudice his 
interests by an untrue statement, ceases when the confession appears to 
have been made either in consequence of inducements of a temporal 
nature, held out by one in authority, touching the charge preferred, or 
because of a threat or promise by or in the presence of such person, 
which, operating upon the fears or hopes of the accused, in reference to 
the charge, deprives him of that freedom of will or self-control 
essential to make his confession voluntary within the meaning of the 
law.''\253\ Subsequent cases followed essentially the same line of 
thought.\254\ Then, in Bram v. United States\255\ the Court assimilated 
the common-law rule thus mentioned as a command of the Fifth Amendment 
and indicated that henceforth a broader standard for judging 
admissibility was to be applied.\256\ Though this rule\257\ and the case 
itself were subsequently approved in several cases,\258\ the Court could 
hold within a few years that a confession should not be excluded merely 
because the authorities had not warned a sus

[[Page 1323]]
pect of his right to remain silent,\259\ and more than once later Courts 
could doubt ``whether involuntary confessions are excluded from federal 
criminal trials on the ground of a violation of the Fifth Amendment's 
protection against self-incrimination, or from a rule that forced 
confessions are untrustworthy. . . .''\260\

        \252\3 J. Wigmore, A Treatise on the Anglo-American System of 
Evidence Sec. 823 (3d ed. 1940); Developments in the Law--Confessions, 
79 Harv. L. Rev. 935, 954-59 (1966).
        \253\Hopt v. Utah, 110 U.S. 574, 584-85 (1884). Utah at this 
time was a territory and subject to direct federal judicial supervision.
        \254\Pierce v. United States, 160 U.S. 335 (1896); Sparf v. 
United States, 156 U.S. 51 (1895). In Wilson v. United States, 162 U.S. 
613 (1896), failure to provide counsel or to warn the suspect of his 
right to remain silent was held to have no effect on the admissibility 
of a confession but was only to be considered in assessing its 
credibility.
        \255\168 U.S. 532 (1897). ``[T]he generic language of the 
[Fifth] Amendment was but a crystallization of the doctrine as to 
confessions, well settled when the Amendment was adopted. . . .'' Id. at 
543.
        \256\Id. at 549.
        \257\Ziang Sun Wan v. United States, 266 U.S. 1, 14-15 (1924). 
This case first held that the circumstances of detention and 
interrogation were relevant and perhaps controlling on the question of 
admissibility of a confession.
        \258\Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Powers v. 
United States, 223 U.S 303, 313 (1912); Shotwell Mfg. Co. v. United 
States, 371 U.S. 342, 347 (1963).
        \259\Powers v. United States, 223 U.S. 303 (1912).
        \260\United States v. Carignan, 342 U.S. 36, 41 (1951). See also 
McNabb v. United States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 
297 U.S. 278, 285 (1936); Stein v. New York, 346 U.S. 156, 191 n.35 
(1953).
---------------------------------------------------------------------------

        McNabb-Mallory Doctrine.--Perhaps one reason the Court did not 
squarely confront the application of the self-incrimination clause to 
police interrogation and the admissibility of confessions in federal 
courts was that in McNabb v. United States\261\ it promulgated a rule 
excluding confessions obtained after an ``unnecessary delay'' in 
presenting a suspect for arraignment after arrest.\262\ This rule, 
developed pursuant to the Court's supervisory power over the lower 
federal courts\263\ and hence not applicable to the States as a 
constitutional rule would have been,\264\ was designed to implement the 
guarantees assured to a defendant by the Federal Rules of Criminal 
Procedure,\265\ and was clearly informed with concern over incommunicado 
interrogation and coerced confessions.\266\ While the Court never 
attempted to specify a minimum time after which delay in presenting a 
suspect for arraignment would invalidate confessions, Congress in 1968 
legislated to set a six-hour pe

[[Page 1324]]
riod for interrogation following arrest before the suspect must be 
presented.\267\

        \261\318 U.S. 332 (1943). See also Anderson v. United States, 
318 U.S. 350 (1943).
        \262\In Upshaw v. United States, 335 U.S. 410 (1948), the Court 
rejected lower court interpretations that delay in arraignment was but 
one factor in determining the voluntariness of a confession, and held 
that a confession obtained after a thirty-hour delay was inadmissible 
per se. Mallory v. United States, 354 U.S. 449 (1957), held that any 
confession obtained during an unnecessary delay in arraignment was 
inadmissible. A confession obtained during a lawful delay before 
arraignment was admissible. United States v. Mitchell, 322 U.S. 65 
(1944).
        \263\McNabb v. United States, 318 U.S. 332, 340 (1943); Upshaw 
v. United States, 335 U.S. 410, 414 n.2 (1948). Burns v. Wilson, 346 
U.S. 137, 145 n.12 (1953), indicated that because the Court had no 
supervisory power over courts-martial, the rule did not apply in 
military courts.
        \264\Gallegos v. Nebraska, 342 U.S. 55, 60, 63-64, 71-73 (1951); 
Stein v. New York, 346 U.S. 156, 187-88 (1953); Culombe v. Connecticut, 
367 U.S. 568, 599-602 (1961) (Justice Frankfurter announcing judgment of 
the Court).
        \265\Rule 5(a) requiring prompt arraignment was promulgated in 
1946, but the Court in McNabb relied on predecessor statutes, some of 
which required prompt arraignment. Cf. Mallory v. United States, 354 
U.S. 449, 451-54 (1957). Rule 5(b) requires that the magistrate at 
arraignment must inform the suspect of the charge against him, must warn 
him that what he says may be used against him, must tell him of his 
right to counsel and his right to remain silent, and must also provide 
for the terms of bail.
        \266\McNabb v. United States, 318 U.S. 332, 343 (1943); Mallory 
v. United States, 354 U.S. 449, 452-53 (1957).
        \267\The provision was part of the Omnibus Crime Control and 
Safe Streets Act of 1968, 82 Stat. 210, 18 U.S.C. Sec. 3501(c).
---------------------------------------------------------------------------

        State Confession Cases.--In its first encounter with a 
confession case arising from a state court, the Supreme Court set aside 
a conviction based solely on confessions of the defendants which had 
been extorted from them through repeated whippings with ropes and 
studded belts.\268\ For some thirty years thereafter the Court attempted 
through a consideration of the ``totality of the circumstances'' 
surrounding interrogation to determine whether a confession was 
``voluntary'' and admissible or ``coerced'' and inadmissible. During 
this time, the Court was balancing, in Justice Frankfurter's 
explication, a view that police questioning of suspects was 
indispensable in solving many crimes, on the one hand, with the 
conviction that the interrogation process is not to be used to overreach 
persons who stand helpless before it.\269\ ``The ultimate test remains 
that which has been the only clearly established test in Anglo-American 
courts for two hundred years: the test of voluntariness. Is the 
confession the product of an essentially free and unconstrained choice 
by its maker? If it is, if he has willed to confess, it may be used 
against him. If it is not, if his will has been overborne and his 
capacity for self-determination critically impaired, the use of his 
confession offends due process.''\270\ Obviously, a court seeking to 
determine whether the making of a confession was voluntary operated 
under a severe handicap, inasmuch as the interrogation process was in 
secret with only police and the suspect witness to it, and inasmuch as 
the concept of voluntariness referred to the defendant's mental 
condition.\271\ Despite, then, a bountiful number of cases, binding 
precedents were few.

        \268\Brown v. Mississippi, 297 U.S. 278 (1936). ``[T]he question 
of the right of the State to withdraw the privilege against self-
incrimination is not here involved. The compulsion to which the quoted 
statements refer is that of the processes of justice by which the 
accused may be called as a witness and required to testify. Compulsion 
by torture to extort a confession is a different matter. . . . It would 
be difficult to conceive of methods more revolting to the sense of 
justice than those taken to procure the confessions of these 
petitioners, and the use of the confessions thus obtained as the basis 
for conviction and sentence was a clear denial of due process.'' Id. at 
285, 286.
        \269\Culombe v. Connecticut, 367 U.S. 568, 570-602 (1961) 
(announcing judgment of the Court).
        \270\Id. at 602.
        \271\``The inquiry whether, in a particular case, a confession 
was voluntarily or involuntarily made involves, at the least, a three-
phased process. First, there is the business of finding the crude 
historical facts, the external `phenomenological' occurrences and events 
surrounding the confession. Second, because the concept of 
`voluntariness' is one which concerns a mental state, there is the 
imaginative recreation, largely inferential, of internal, 
`psychological' fact. Third, there is the application to this 
psychological fact of standards for judgment informed by the larger 
legal conceptions ordinarily characterized as rules of law but which, 
also, comprehend both induction from, and anticipation of, factual 
circumstances.'' Id. at 603. See Developments in the Law--Confessions, 
79 Harv. L. Rev. 935, 973-82 (1966).

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[[Page 1325]]

        On the one hand, many of the early cases disclosed rather clear 
instances of coercion of a nature that the Court could little doubt 
produced involuntary confessions. Not only physical torture,\272\ but 
other overtly coercive tactics as well have been condemned. Chambers v. 
Florida\273\ held that five days of prolonged questioning following 
arrests without warrants and incommunicado detention made the subsequent 
confessions involuntary. Ashcraft v. Tennessee\274\ held inadmissible a 
confession obtained near the end of a 36-hour period of practically 
continuous questioning, under powerful electric lights, by relays of 
officers, experienced investigators, and highly trained lawyers. 
Similarly, Ward v. Texas,\275\ voided a conviction based on a confession 
obtained from a suspect who had been arrested illegally in one county 
and brought some 100 miles away to a county where questioning began, and 
who had then been questioned continuously over the course of three days 
while being driven from county to county and being told falsely of a 
danger of lynching. ``Since Chambers v. State of Florida, . . . this 
Court has recognized that coercion can be mental as well as physical and 
that the blood of the accused is not the only hallmark of an 
unconstitutional inquisition. A number of cases have demonstrated, if 
demonstrations were needed, that the efficiency of the rack and 
thumbscrew can be matched, given the proper subject, by more 
sophisticated modes of `persuasion'. A prolonged interrogation of the 
accused who is ignorant of his rights and who has been cut off from the 
moral support of friends and relatives is not infrequently an effective 
technique of terror.''\276\

        \272\Brown v. Mississippi, 297 U.S. 278 (1936).
        \273\309 U.S. 227 (1940).
        \274\322 U.S. 143 (1944). Dissenting, Justices Jackson, 
Frankfurter, and Roberts protested that ``interrogation per se is not, 
while violence per se is, an outlaw.'' A confession made after 
interrogation was not truly ``voluntary'' because all questioning is 
``inherently coercive,'' because it puts pressure upon a suspect to 
talk. Thus, in evaluating a confession made after interrogation, the 
Court must, they insisted, determine whether the suspect was in 
possession of his own will and self-control and not look alone to the 
length or intensity of the interrogation. They accused the majority of 
``read[ing] an indiscriminating hostility to mere interrogation into the 
Constitution'' and preparing to bar all confessions made after 
questioning. Id. at 156. A possible result of the dissent was the 
decision in Lyons v. Oklahoma, 322 U.S. 596 (1944), which stressed 
deference to state-court factfinding in assessing the voluntariness of 
confessions.
        \275\316 U.S. 547 (1942). See also Canty v. Alabama, 309 U.S. 
629 (1940); White v. Texas, 310 U.S. 530 (1940); Lomax v. Texas, 313 
U.S. 544 (1941); Vernon v. Alabama, 313 U.S. 540 (1941).
        \276\Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
        
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[[Page 1326]]

        While the Court would not hold that prolonged questioning by 
itself made a resultant confession involuntary,\277\ it did increasingly 
find coercion present even in intermittent questioning over a period of 
days of incommunicado detention.\278\ In Stein v. New York,\279\ 
however, the Court affirmed convictions of experienced criminals who had 
confessed after twelve hours of intermittent questioning over a period 
of thirty-two hours of incommunicado detention. While the questioning 
was less intensive than in the prior cases, Justice Jackson for the 
majority stressed that the correct approach was to balance ``the 
circumstances of pressure against the power of resistance of the person 
confessing. What would be overpowering to the weak of will or mind might 
be utterly ineffective against an experienced criminal.''\280\ But by 
the time Haynes v. Washington\281\ was decided, holding inadmissible a 
confession made by an experienced criminal because of the ``unfair and 
inherently coercive context'' in which the statement was made, it was 
clear that the Court was adhering to a rule which found coercion in the 
fact of prolonged interrogation without regard to the individual 
characteristics of the suspect.\282\ However, the age and intel

[[Page 1327]]
ligence of suspects have been repeatedly cited by the Court in 
appropriate cases as demonstrating the particular susceptibility of the 
suspects to even mild coercion.\283\ But a suspect's mental state 
alone--even insanity--is insufficient to establish involuntariness 
absent some coercive police activity.\284\

        \277\Lisenba v. California, 314 U.S. 219 (1941).
        \278\Watts v. Indiana, 338 U.S. 49 (1949) (Suspect held 
incommunicado without arraignment for seven days without being advised 
of his rights. He was held in solitary confinement in a cell with no 
place to sleep but the floor and questioned each day except Sunday by 
relays of police officers for periods ranging in duration from three to 
nine-and-one-half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) 
(suspect held on suspicion for five days without arraignment and without 
being advised of his rights. He was questioned by relays of officers for 
periods briefer than in Watts during both days and nights); Harris v. 
South Carolina, 338 U.S. 68 (1949) (Suspect in murder case arrested in 
Tennessee on theft warrant, taken to South Carolina, and held 
incommunicado. He was questioned for three days for periods as long as 
12 hours, not advised of his rights, not told of the murder charge, and 
denied access to friends and family while being told his mother might be 
arrested for theft). Justice Jackson dissented in the latter two cases, 
willing to hold that a confession obtained under lengthy and intensive 
interrogation should be admitted short of a showing of violence or 
threats of it and especially if the truthfulness of the confession may 
be corroborated by independent means. Id. at 57.
        \279\346 U.S. 156 (1953).
        \280\Id. at 185.
        \281\373 U.S. 503 (1963) (confession obtained some 16 hours 
after arrest but interrogation over this period consumed little more 
than two hours; he was refused in his requests to call his wife and told 
that his cooperation was necessary before he could communicate with his 
family).
        \282\Id. at 514. See also Spano v. New York, 360 U.S. 315 
(1959). (After eight hours of almost continuous questioning, suspect was 
induced to confess by rookie policeman who was a childhood friend and 
who played on suspect's sympathies by falsely stating that his job as a 
policeman and the welfare of his family was at stake); Rogers v. 
Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six 
hours but yielded when officers threatened to bring his invalid wife to 
headquarters). More recent cases include Davis v. North Carolina, 384 
U.S. 737 (1966) (escaped convict held incommunicado 16 days but periods 
of interrogation each day were about an hour each); Greenwald v. 
Wisconsin, 390 U.S. 519 (1968); Darwin v. Connecticut, 391 U.S. 346 
(1968).
        \283\Gallegos v. Colorado, 370 U.S. 49 (1962); Blackburn v. 
Alabama, 361 U.S. 199 (1960); Fikes v. Alabama, 352 U.S. 191 (1957); 
Payne v. Arkansas, 356 U.S. 560 (1958); Reck v. Pate, 367 U.S. 433 
(1961); Culombe v. Connecticut, 367 U.S. 568 (1961). The suspect in 
Spano v. New York, 360 U.S. 315 (1959), was a 25-year-old foreigner with 
a history of emotional instability. The fact that the suspect was a 
woman was apparently significant in Lynumn v. Illinois, 372 U.S. 528 
(1963), in which officers threatened to have her children taken from her 
and to have her taken off the welfare relief rolls.
        \284\Colorado v. Connelly, 479 U.S. 157 (1986).
---------------------------------------------------------------------------

        Where, however, interrogation was not so prolonged that the 
Court would deem it ``inherently coercive,'' the ``totality of the 
circumstances'' was looked to in determining admissibility. Although in 
some of the cases a single factor may well be thought to stand out as 
indicating the involuntariness of the confession,\285\ generally the 
recitation of factors, including not only the age and intelligence of 
the suspect but also such things as the illegality of the arrest, the 
incommunicado detention, the denial of requested counsel, the denial of 
access to friends, the employment of trickery, and other things, seemed 
not to rank any factor above the others.\286\ Of course, confessions may 
be induced through the exploitation of some illegal action, such as an 
illegal arrest\287\ or an unlawful search and seizure,\288\ and when 
that occurs the confession is inadmissible. Where police obtain a 
subsequent confession after obtaining one that is inadmissible as 
involuntary, the Court will not assume that the subsequent confession 
was similarly involuntary, but will independently evaluate whether the 
coercive actions which produced the first continued to produce the later 
confession.\289\

        \285\E.g., Leyra v. Denno, 347 U.S. 556 (1954) (confession 
obtained by psychiatrist trained in hypnosis from a physically and 
emotionally exhausted suspect who had already been subjected to three 
days of interrogation); Townsend v. Sain, 372 U.S. 293 (1963) (suspect 
was administered drug with properties of ``truth serum'' to relieve 
withdrawal pains of narcotics addiction, although police probably were 
not aware of drug's side effects).
        \286\E.g., Johnson v. New Jersey, 384 U.S. 719 (1966); Davis v. 
North Carolina, 384 U.S. 737 (1966); Ashdown v. Utah, 357 U.S. 426 
(1958); Thomas v. Arizona, 356 U.S. 390 (1958).
        \287\Wong Sun v. United States, 371 U.S. 471 (1963).
        \288\Fahy v. Connecticut, 375 U.S. 85 (1963).
        \289\United States v. Bayer, 331 U.S. 532 (1947); Lyons v. 
Oklahoma, 322 U.S. 596 (1944); Leyra v. Denno, 347 U.S. 556 (1954); 
Darwin v. Connecticut, 391 U.S. 346 (1968).
---------------------------------------------------------------------------

        From the Voluntariness Standard to Miranda.--Invocation by the 
Court of a self-incrimination standard for judging the fruits of police 
interrogation was no unheralded novelty in Miranda v. Ar

[[Page 1328]]
izona.\290\ The rationale of the confession cases changed over time to 
one closely approximating the foundation purposes the Court has 
attributed to the self-incrimination clause. Historically, the basis of 
the rule excluding coerced and involuntary confessions was their 
untrustworthiness, their unreliability.\291\ It appears that this basis 
informed the Court's judgment in the early state confession cases\292\ 
as it had in earlier cases from the lower federal courts.\293\ But in 
Lisenba v. California,\294\ Justice Roberts drew a distinction between 
the confession rule and the standard of due process. ``[T]he fact that 
the confessions have been conclusively adjudged by the decision below to 
be admissible under State law, notwithstanding the circumstances under 
which they were made, does not answer the question whether due process 
was lacking. The aim of the rule that a confession is inadmissible 
unless it was voluntarily made is to exclude false evidence. Tests are 
invoked to determine whether the inducement to speak was such that there 
is a fair risk the confession is false. . . . The aim of the requirement 
of due process is not to exclude presumptively false evidence, but to 
prevent fundamental unfairness in the use of evidence, whether true or 
false.'' Over the next several years, while the Justices continued to 
use the terminology of voluntariness, the Court accepted at different 
times the different rationales of trustworthiness and constitutional 
fairness.\295\

        \290\384 U.S. 436 (1966).
        \291\3 J. Wigmore, A Treatise on the Anglo-American System of 
Evidence Sec. 882, at 246 (3d ed. 1940).
        \292\Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. 
Florida, 309 U.S. 227 (1940); White v. Texas, 310 U.S. 530 (1940).
        \293\Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 
162 U.S. 613 (1896).
        \294\314 U.S. 219, 236 (1941).
        \295\Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944), with 
Lyons v. Oklahoma, 322 U.S. 596 (1944), and Malinski v. New York, 324 
U.S. 401 (1945). In Watts v. Indiana, 338 U.S. 49 (1949), Harris v. 
South Carolina, 338 U.S. 68 (1949), and Turner v. Pennsylvania, 338 U.S. 
62 (1949), five Justices followed the due process-fairness standard 
while four adhered to a trustworthiness rationale. See id. at 57 
(Justice Jackson concurring and dissenting). In Stein v. New York, 346 
U.S. 156, 192 (1953), the trustworthiness rationale had secured the 
adherence of six Justices. The primary difference between the two 
standards is the admissibility under the trustworthiness standard of a 
coerced confession if its trustworthiness can be established, if, that 
is, it can be corroborated.
---------------------------------------------------------------------------

        Ultimately, however, those Justices who chose to ground the 
exclusionary rule on the latter consideration predominated, so that in 
Rogers v. Richmond\296\ Justice Frankfurter spoke for six other

[[Page 1329]]
Justices in writing: ``Our decisions under that [Fourteenth] Amendment 
have made clear that convictions following the admission into evidence 
of confessions which are involuntary, i.e., the product of coercion, 
either physical or psychological, cannot stand. This is so not because 
such confessions are unlikely to be true but because the methods used to 
extract them offend an underlying principle in the enforcement of our 
criminal law: that ours is an accusatorial and not an inquisitorial 
system--a system in which the State must establish guilt by evidence 
independently and freely secured and may not by coercion prove its 
charges against an accused out of his own mouth.'' Nevertheless, the 
Justice said in another case, ``[n]o single litmus-paper test for 
constitutionally impermissible interrogation has been evolved.''\297\ 
Three years later, however, in Malloy v. Hogan,\298\ in the process of 
applying the self-incrimination clause to the States, Justice Brennan 
for the Court reinterpreted the line of cases since Brown v. 
Mississippi\299\ to conclude that the Court had initially based its 
rulings on the common-law confession rationale, but that beginning with 
Lisenba v. California,\300\ a ``federal standard'' had been developed. 
The Court had engaged in a ``shift [which] reflects recognition that the 
American system of criminal prosecution is accusatorial, not 
inquisitorial, and that the Fifth Amendment privilege is its essential 
mainstay.'' Today, continued Justice Brennan, ``the admissibility of a 
confession in a state criminal prosecution is tested by the same 
standard applied in federal prosecutions since 1897,'' when Bram v. 
United States had announced that the self-incrimination clause furnished 
the basis for admitting or excluding evidence in federal courts.\301\

        \296\365 U.S 534, 540-41 (1961). Similar expressions may be 
found in Spano v. New York, 360 U.S. 315 (1959), and Blackburn v. 
Alabama, 361 U.S. 199 (1960). See also Culombe v. Connecticut, 367 U.S. 
568, 583 n.25 (1961), in which Justice Frankfurter, announcing the 
judgment of the Court, observed that ``the conceptions underlying the 
rule excluding coerced confessions and the privilege again self-
incrimination have become, to some extent, assimilated.''
        \297\Culombe v. Connecticut, 367 U.S. 568, 601 (1961). The same 
thought informs the options of the Court in Haynes v. Washington, 373 
U.S. 503 (1963).
        \298\378 U.S. 1 (1964).
        \299\297 U.S. 278 (1936).
        \300\314 U.S. 219 (1941).
        \301\Malloy v. Hogan, 378 U.S. 1, 6-7 (1964). Protesting that 
this was ``post facto reasoning at best,'' Justice Harlan contended that 
the ``majority is simply wrong'' in asserting that any of the state 
confession cases represented anything like a self-incrimination basis 
for the conclusions advanced. Id. at 17-19. Bram v. United States, 168 
U.S. 532 (1897), is discussed supra, p.1321.
---------------------------------------------------------------------------

        One week after the decision in Malloy v. Hogan, the Court 
essayed to define the rules of admissibility of confessions in different 
terms than its previous case; while it continued to emphasize 
voluntariness, it did so in self-incrimination terms rather than in due 
process terms. In Escobedo v. Illinois,\302\ it held inadmissible the 
confession obtained from a suspect in custody who had repeatedly 
requested and had repeatedly been refused an opportunity to con

[[Page 1330]]
sult with his retained counsel, who was present at the police station 
seeking to gain access to Escobedo.\303\ While Escobedo appeared in the 
main to be a Sixth Amendment right-to-counsel case, the Court at several 
points emphasized, in terms that clearly implicated self-incrimination 
considerations, that the suspect had not been warned of his 
constitutional rights.\304\

        \302\378 U.S. 478 (1964). Joining Justice Goldberg in the 
majority were Chief Justice Warren and Justices Black, Douglas, and 
Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 
492, 493, 495.
        \303\Previously, it had been held that a denial of a request to 
consult counsel was but one of the factors to be considered in assessing 
voluntariness. Crooker v. California, 357 U.S. 433 (1958); Cicenia v. 
Lagay, 357 U.S. 504 (1958). Chief Justice Warren and Justices Black, 
Douglas, and Brennan were prepared in these cases to impose a 
requirement of right to counsel per se. Post-indictment interrogation 
without the presence of counsel seemed doomed after Spano v. New York, 
360 U.S. 315 (1959), and this was confirmed in Massiah v. United States, 
377 U.S 201 (1964). See discussion under Sixth Amendment, infra.
        \304\Escobedo v. Illinois, 378 U.S. 478, 485, 491 (1964) (both 
pages containing assertions of the suspect's ``absolute right to remain 
silent'' in the context of police warnings prior to interrogation).
---------------------------------------------------------------------------

        Miranda v. Arizona.--The Sixth Amendment holding of Escobedo was 
deemphasized and the Fifth Amendment self-incrimination rule made 
preeminent in Miranda v. Arizona,\305\ in which the Court summarized its 
holding as follows: ``[T]he prosecution may not use statements, whether 
exculpatory or inculpatory, stemming from custodial interrogation of the 
defendant unless it demonstrates the use of procedural safeguards 
effective to secure the privilege against self-incrimination. By 
custodial interrogation, we mean questioning initiated by law 
enforcement officers after a person has been taken into custody or 
otherwise deprived of his freedom of action in any significant way. As 
for the procedural safeguards to be employed, unless other fully 
effective means are devised to inform accused persons of their right of 
silence and to assure a continuous opportunity to exercise it, the 
following measures are required. Prior to any questioning, the person 
must be warned that he has a right to remain silent, that any statement 
he does make may be used as evidence against him, and that he has a 
right to the presence of an attorney, either retained or appointed. The 
defendant may waive effectuation of these rights, provided the waiver is 
made voluntarily, knowingly and intelligently. If, however, he indicates 
in any manner and at any stage of the process that he wishes to consult 
with an attorney before speaking there can be no questioning. Likewise, 
if the individual is alone and indicates in any manner that he does not 
wish to be interrogated, the police may not question him. The mere fact 
that he may have an

[[Page 1331]]
swered some questions or volunteered some statements on his own does not 
deprive him of the right of refrain from answering any further inquiries 
until he has consulted with an attorney and thereafter consents to be 
questioned.''

        \305\384 U.S. 436, 444-45 (1966). In Johnson v. New Jersey, 384 
U.S. 719 (1966), the Court held that neither Escobedo nor Miranda was to 
be applied retroactively. In cases where trials commenced after the 
decisions were announced, the due process ``totality of circumstances'' 
test was to be the key. Cf. Davis v. North Carolina, 384 U.S. 737 
(1966).
---------------------------------------------------------------------------

        The basis for the Court's conclusions was the determination that 
police interrogation as conceived and practiced was inherently coercive 
and that this compulsion, though informal and legally sanctionless, was 
contrary to the protection assured by the self-incrimination clause, the 
protection afforded in a system of criminal justice which convicted a 
defendant on the basis of evidence independently secured and not out of 
his own mouth. In the Court's view, this had been the law in the federal 
courts since 1897, and the application of the clause to the States in 
1964 necessitated the application of the principle in state courts as 
well. Therefore, the clause requires that police interrogation practices 
be so structured as to secure to suspects that they not be stripped of 
the ability to make a free and rational choice between speaking and not 
speaking. The warnings and the provision of counsel were essential, the 
Court said, to this type of system.\306\ ``In these cases,'' said Chief 
Justice Warren, ``we might not find the defendants' statements to have 
been involuntary in traditional terms.''\307\ The acknowledgment that 
the decision considerably expanded upon previous doctrine, even if the 
assimilation of self-incrimination values by the confession-exclusion 
rule be considered complete, was more clearly made a week after Miranda 
when, in denying retroactivity to that case and to Escobedo, the Court 
asserted that law enforcement officers had relied justifiably upon prior 
cases, ``now no longer binding,'' which treated the failure to warn a 
suspect of his rights or the failure to grant access to counsel as one 
of the factors to be considered.\308\ It was thus not the application of 
the self-incrimination clause to police interrogation in Miranda that 
constituted a major change from precedent but rather the series of 
warnings and guar

[[Page 1332]]
antees which the Court imposed as security for the observance of the 
privilege.

        \306\Justices Clark, Harlan, Stewart, and White dissented, 
finding no historical support for the application of the clause to 
police interrogation and rejecting the policy considerations for the 
extension put forward by the majority. Miranda v. Arizona, 384 U.S. 436, 
499, 504, 526 (1966). Justice White argued that while the Court's 
decision was not compelled or even strongly suggested by the Fifth 
Amendment, its history, and the judicial precedents, this did not 
preclude the Court from making new law and new public policy grounded in 
reason and experience, but he contended that the change made in Miranda 
was ill-conceived because it arose from a view of interrogation as 
inherently coercive and because the decision did not adequately protect 
society's interest in detecting and punishing criminal behavior. Id. at 
531-45.
        \307\Id. at 457. For the continuing recognition of the 
difference between the traditional involuntariness test and the Miranda 
test, see Michigan v. Tucker, 417 U.S. 433, 443-46 (1974); Mincey v. 
Arizona, 437 U.S. 385, 396-402 (1978).
        \308\Johnson v. New Jersey, 384 U.S. 719, 731 (1966).
---------------------------------------------------------------------------

        While the Court's decision rapidly became highly controversial 
and the source of much political agitation, including a prominent role 
in the 1968 presidential election, the Court has continued to adhere to 
it,\309\ albeit not without considerable qualification. In 1968, 
Congress enacted a statute designed to set aside Miranda in the federal 
courts and to reinstate the traditional voluntariness test; an effort to 
enact a companion provision applicable to the state courts was 
defeated.\310\ The statute, however, appears to lie unimplemented 
because of constitutional doubts about it,\311\ and changing membership 
of the Court has resulted only in some curtailing of the case's 
principles.

        \309\See, e.g., Rhode Island v. Innis, 446 U.S. 291, 304 (1980) 
(Chief Justice Burger concurring) (``The meaning of Miranda has become 
reasonably clear and law enforcement practices have adjusted to its 
strictures; I would neither overrule Miranda, disparage it, nor extend 
it at this late date.'')
        \310\Pub. L. No. 90-351, Sec. 701(a), 82 Stat. 210, 18 U.S.C. 
Sec. 3501. See S. Rept. No. 1097, 90th Congress, 2d sess. 37-53 (1968).
        \311\But cf. United States v. Crocker, 510 F.2d 1129 (10th Cir. 
1975).
---------------------------------------------------------------------------

        In one respect, though, it appears that the Court, by suggesting 
that Miranda claims could be disallowed in most instances in federal 
habeas corpus cases, has constructed a rationale that could lead to a 
substantial limitation on Miranda's operation.\312\ This potential 
limitation flows from the analysis in Michigan v. Tucker,\313\ in which 
the Court was confronted with the question whether Miranda required the 
exclusion of the testimony of a witness who had been discovered because 
of the defendant's statement during interrogation following an 
inadequate Miranda warning.\314\ The interrogation had taken place prior 
to Miranda, but the trial had followed the Court's decision,\315\ 
leading to the exclusion of defendant's statement but not of the 
testimony of the witness. The actual holding of the Court and the 
concurrence of two Justices turned on the fact that the interrogation 
preceded Miranda and that warnings had been given, although not the full 
Miranda warnings; thus, in

[[Page 1333]]
some respects, the decision is in the line of retroactivity cases. But 
of great possible significance was the language of the Court in 
considering ``whether the police conduct complained of directly 
infringed upon respondent's rights against compulsory self-incrimination 
or whether it instead violated only the prophylactic rules developed to 
protect that right.''\316\ Finding that the defendant's statement had 
not been coerced or otherwise procured in violation of his privilege, 
the Court found that good-faith, inadvertent error in not fully 
complying with the ``prophylactic'' Miranda rules did not require 
exclusion of the testimony, because the error preceded Miranda, because 
exclusion would not deter wrongful conduct, and because admission would 
not implicate the trial court in the use of possibly untrustworthy 
evidence.\317\ Obviously, dividing the question in this way between a 
constitutional right and a judicially-created enforcement mechanism 
permits courts a considerable degree of flexibility to apply or not 
apply the exclusionary rule previously thought to be fairly rigid under 
Miranda.\318\

        \312\A similar limitation applies to search and seizure 
exclusionary claims under Stone v. Powell, 428 U.S. 465 (1976). See 
supra, pp.1265-66. The issue of Stone's application to Miranda was 
reserved in Wainwright v. Sykes, 433 U.S. 72, 87 n.11 (1977). See Brewer 
v. Williams, 430 U.S. 387, 413-14 (1977) (Justice Powell concurring), 
and id. at 426-28 (Chief Justice Burger dissenting). Notice, however, 
that if Miranda claims were made subject to Stone, the traditional 
voluntariness test of admitting confessions and admissions, with its 
varying emphases on reliability, trustworthiness, and constitutional 
fairness, might well qualify those claims for exemption from Powell (see 
Rose v. Mitchell, 443 U.S. 545 (1979)), and could reduce the value in 
the Court's perspective of limiting habeas claims raising Miranda 
issues.
        \313\417 U.S. 433 (1974).
        \314\It is not clear that the witness' testimony was 
suppressible in any event. Cf. United States v. Ceccolini, 435 U.S. 268 
(1978) (a Fourth Amendment case).
        \315\See Johnson v. New Jersey, 384 U.S. 719 (1966).
        \316\Michigan v. Tucker, 417 U.S. 433, 439 (1974). Justices 
Rehnquist, Stewart, Blackmun, Powell, and Chief Justice Burger joined 
the opinion of the Court. Justices Brennan and Marshall concurred on 
retroactivity grounds, id. at 453, and Justice Stewart noted he could 
have joined this opinion as well. Id. Justice White, continuing to think 
Miranda was wrongly decided, concurred because he did not think the 
``fruits'' of a Miranda violation should be excluded. Id. at 460.
        \317\Id. at 446-52. The similarity with opinions interpreting 
the search and seizure exclusionary rule is striking. Supra, pp.1264-69.
        \318\While the exclusionary rule may not be directly mandated by 
the constitutional provision in issue, it must be a constitutional 
standard, because if it were not the Court could not impose it on the 
States. See Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. 
Rev. 1 (1975); Schrock, Welsh & Collins, Interrogational Rights: 
Reflections on Miranda v. Arizona, 52 So. Cal. L. Rev. 1 (1978).
---------------------------------------------------------------------------

        In any event, the Court has established several lines of 
decisions interpreting Miranda.

        First, persons who are questioned while they are in custody must 
be given the Miranda warnings. Miranda applies to ``questioning 
initiated by law enforcement officers after a person has been taken into 
custody or otherwise deprived of his freedom of action in any 
significant way.''\319\ Clearly, a suspect detained in jail is in 
custody, even if the detention is for some offense other than the one 
about which he is questioned.\320\ If he is placed under ar

[[Page 1334]]
rest, even if he is in his own home, the questioning is custodial.\321\ 
But the fact that a suspect may be present in a police station does not, 
in the absence of indicia that he was in custody, mean that the 
questioning is custodial,\322\ and the fact that he is in his home or 
other familiar surroundings will ordinarily lead to a conclusion that 
the inquiry was noncustodial.\323\ As with investigative stops under the 
Fourth Amendment, there is a wide variety of police-citizen contacts, 
and the Supreme Court has not explored at any length the application of 
Miranda to questioning on the street and elsewhere in situations in 
which the police have not asserted authority sufficient to place the 
citizen in custody.\324\

        \319\Miranda v. Arizona, 384 U.S. 436, 444 (1966).
        \320\Mathis v. United States, 391 U.S. 1 (1968) (suspect in 
state jail questioned by federal officer about a federal crime). But 
even though a suspect is in jail, hence in custody ``in a technical 
sense,'' a conversation with an undercover agent does not create a 
coercive, police-dominated environment and does not implicate Miranda if 
the suspect does not know that he is conversing with a government agent. 
Illinois v. Perkins, 110 S. Ct. 2394 (1990).
        \321\Orozco v. Texas, 394 U.S. 324 (1969) (four policemen 
entered suspect's bedroom at 4 a.m. and questioned him; though not 
formally arrested, he was in custody).
        \322\Oregon v. Mathiason, 429 U.S. 492 (1977) (suspect came 
voluntarily to police station to be questioned, he was not placed under 
arrest while there, and he was allowed to leave at end of interview, 
even though he was named by victim as culprit, questioning took place 
behind closed doors, and he was falsely informed his fingerprints had 
been found at scene of crime). See also Minnesota v. Murphy, 465 U.S. 
420 (1984) (required reporting to probationary officer is not custodial 
situation).
        \323\Beckwith v. United States, 425 U.S. 341 (1976) (IRS agents' 
interview with taxpayer in private residence was not a custodial 
interrogation, although inquiry had ``focused'' on him).
        \324\Cf. United States v. Mendenhall, 446 U.S. 544 (1980); Reid 
v. Georgia, 448 U.S. 438 (1980); Brown v. Texas, 443 U.S. 47 (1979); 
Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (roadside questioning of 
motorist stopped for traffic violation is not custodial interrogation 
until his ``freedom of action is curtailed to a `degree associated with 
formal arrest''').
---------------------------------------------------------------------------

        Second, persons who are interrogated while they are in custody 
must be given the Miranda warnings. It is not necessary under Miranda 
that the police squarely ask a question. The breadth of the 
interrogation concept is demonstrated in Rhode Island v. Innis.\325\ 
There, police had apprehended the defendant as a murder suspect but had 
not found the weapon used. While he was being transported to police 
headquarters in a squad car, the defendant, who had been given the 
Miranda warnings and had asserted he wished to consult a lawyer before 
submitting to questioning, was not asked questions by the officers. 
However, the officers engaged in conversation among themselves, in which 
they indicated that a school for handicapped children was near the crime 
scene and that they hoped the weapon was found before a child discovered 
it and was

[[Page 1335]]
injured. The defendant then took them to the weapon's hiding place.

        \325\446 U.S. 291 (1980). A remarkably similar factual situation 
was presented in Brewer v. Williams, 430 U.S. 387 (1977), which was 
decided under the Sixth Amendment. In Brewer, and also in Massiah v. 
United States, 377 U.S. 201 (1964), and United States v. Henry, 447 U.S. 
264 (1980), the Court has had difficulty in expounding on what 
constitutes interrogation for Sixth Amendment counsel purposes. The 
Innis Court indicated that the definitions are not the same for each 
Amendment. 446 U.S. at 300 n.4.
---------------------------------------------------------------------------

        Unanimously rejecting a contention that Miranda would have been 
violated only by express questioning, the Court said: ``We conclude that 
the Miranda safeguards come into play whenever a person in custody is 
subjected to either express questioning or its functional equivalent. 
That is to say, the term `interrogation' under Miranda refers not only 
to express questioning, but also to any words or actions on the part of 
the police (other than those normally attendant to arrest and custody) 
that the police should know are reasonably likely to elicit an 
incriminating response from the suspect. The latter portion of this 
definition focuses primarily upon the perceptions of the suspect, rather 
than the intent of the police. This focus reflects the fact that the 
Miranda safeguards were designed to vest a suspect in custody with an 
added measure of protection against coercive police practices, without 
regard to objective proof of the underlying intent of the police.''\326\ 
A divided Court then concluded that the officers' conversation did not 
amount to a functional equivalent of questioning and that the evidence 
was admissible.\327\

        \326\Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).
        \327\Id. at 302-04. Justices Marshall, Brennan, and Stevens 
dissented, Id. at 305, 307. Similarly, the Court found no functional 
equivalent of interrogation when police allowed a suspect's wife to talk 
to him in the presence of a police officer who openly tape recorded the 
conversation. Arizona v. Mauro, 481 U.S. 520 (1987). See also Illinois 
v. Perkins, 496 U.S. 292 (1990) (absence of coercive environment makes 
Miranda inapplicable to jail cell conversation between suspect and 
police undercover agent).
---------------------------------------------------------------------------

        In Estelle v. Smith,\328\ the Court held that a court-ordered 
jailhouse interview with the defendant by a psychiatrist seeking to 
determine his competency to stand trial, when the defense had raised no 
issue of insanity or incompetency, constituted interrogation for Miranda 
purposes; the psychiatrist's conclusions about the defendant's 
dangerousness were inadmissible at the capital sentencing phase of the 
trial because the defendant had not been given his Miranda warnings 
prior to the interview. That the defendant had been questioned by a 
psychiatrist designated to conduct a neutral competency examination, 
rather than by a police officer, was ``immaterial,'' the Court 
concluded, since the psychiatrist's testimony at the penalty phase 
changed his role from one of neutrality to that of an agent of the 
prosecution.\329\ Other instances of questioning in less formal contexts 
in which the issues of custody and interroga

[[Page 1336]]
tion intertwine, e.g., in on-the-street encounters, await explication by 
the Court.

        \328\451 U.S. 454 (1981).
        \329\Id. at 467.
---------------------------------------------------------------------------

        Third, before a suspect in custody is interrogated, he must be 
given full warnings, or the equivalent, of his rights. Miranda, of 
course, required express warnings to be given to an in-custody suspect 
of his right to remain silent, that anything he said may be used as 
evidence against him, that he has a right to counsel, and that if he 
cannot afford counsel he is entitled to an appointed attorney.\330\ The 
Court recognized that ``other fully effective means'' could be devised 
to convey the right to remain silent,\331\ but it was firm that the 
prosecution was not permitted to show that an unwarned suspect knew of 
his rights in some manner.\332\ But it is not necessary that the police 
give the warnings as a verbatim recital of the words in the Miranda 
opinion itself, so long as the words used ``fully conveyed'' to a 
defendant his rights.\333\

        \330\Miranda v. Arizona, 384 U.S. 436, 444 (1966). See id. at 
469-73.
        \331\Id.
        \332\Id. at 469.
        \333\California v. Prysock, 453 U.S. 355 (1981). Rephrased, the 
test is whether the warnings ``reasonably conveyed'' a suspect's rights, 
the Court adding that reviewing courts ``need not examine Miranda 
warnings as if construing a will or defining the terms of an easement.'' 
Duckworth v. Egan, 492 U.S. 195, 203 (1989) (upholding warning that 
included possibly misleading statement that a lawyer would be appointed 
``if and when you go to court'').
---------------------------------------------------------------------------

        Fourth, once a warned suspect asserts his right to silence and 
requests counsel, the police must scrupulously respect his assertion of 
right. The Miranda Court strongly stated that once a warned suspect 
``indicates in any manner, at any time prior to or during questioning, 
that he wishes to remain silent, the interrogation must cease.'' 
Further, if the suspect indicates he wishes the assistance of counsel 
before interrogation, the questioning must cease until he has 
counsel.\334\ At least with respect to counsel, the Court has created 
practically a per se rule barring the police from continuing or from 
reinitiating interrogation with a suspect requesting counsel until 
counsel is present, save only that the suspect himself may initiate 
further proceedings. Thus, in Edwards v. Arizona,\335\ the Court ruled 
that Miranda had been violated when police reinitiated questioning after 
the suspect had requested counsel. Questioning had ceased as soon as the 
suspect had requested counsel, and the suspect had been returned to his 
cell. Questioning had resumed the following day only after different 
police officers had confronted the suspect and again warned him of his 
rights; the suspect agreed to talk and thereafter incriminated himself. 
Nonetheless, the Court held, ``when an accused has invoked his right to

[[Page 1337]]
have counsel present during custodial interrogation, a valid waiver of 
that right cannot be established by showing only that he responded to 
further police-initiated custodial interrogation even if he has been 
advised of this rights. We further hold that an accused . . . , having 
expressed his desire to deal with the police only through counsel, is 
not subject to further interrogation by the authorities until counsel 
has been made available to him, unless the accused himself initiates 
further communication, exchanges, or conversations with the 
police.''\336\ The Edwards rule bars police-initiated questioning 
stemming from a separate investigation as well as questioning relating 
to the crime for which the suspect was arrested.\337\

        \334\Miranda v. Arizona, 384 U.S. 436, 472, 473-74 (1966).
        \335\451 U.S. 477 (1981).
        \336\Id. at 484-85. The decision was unanimous, but three 
concurrences objected to a special rule limiting waivers with respect to 
counsel to suspect-initiated further exchanges. Id. at 487, 488 (Chief 
Justice Burger and Justices Powell and Rehnquist). In Oregon v. 
Bradshaw, 462 U.S. 1039 (1983), the Court held, albeit without a 
majority of Justices in complete agreement as to rationale, that an 
accused who had initiated further conversations with police had 
knowingly and intelligently waived his right to have counsel present. So 
too, an accused who expressed a willingness to talk to police, but who 
refused to make a written statement without presence of counsel, was 
held to have waived his rights with respect to his oral statements. 
Connecticut v. Barrett, 479 U.S. 523 (1987). The Court has held that 
Edwards should not be applied retroactively to a conviction that had 
become final, Solem v. Stumes, 465 U.S. 638 (1984), but that Edwards 
does apply to cases pending on appeal at the time it was decided. Shea 
v. Louisiana, 470 U.S. 51 (1985).
        \337\Arizona v. Roberson, 486 U.S. 675 (1988). By contrast, the 
Sixth Amendment right to counsel is offense-specific, and does not bar 
questioning about a crime unrelated to the crime for which the suspect 
has been charged. See McNeil v. Wisconsin, 501 U.S. 171 (1991).
---------------------------------------------------------------------------

        However, the suspect must specifically ask for counsel; if he 
requests the assistance of someone else he thinks may be helpful to him, 
that is not a valid assertion of Miranda rights.\338\ Moreover, the 
rigid Edwards rule is not applicable to other aspects of the warnings. 
That is, if the suspect asserts his right to remain silent, the 
questioning must cease, but officers are not precluded from subsequently 
initiating a new round of interrogation, provided only that they again 
give the Miranda warnings.\339\

        \338\Fare v. Michael C., 442 U.S. 707 (1979) (juvenile requested 
to see his parole officer, rather than counsel). Also, waivers signed by 
the accused following Miranda warnings are not vitiated by police having 
kept from the accused information that an attorney had been retained for 
him by a relative. Moran v. Burbine, 475 U.S. 412 (1986).
        \339\Michigan v. Mosley, 423 U.S. 96 (1975) (suspect given 
Miranda warnings at questioning for robbery, requested cessation of 
interrogation, and police complied; some two hours later, a different 
policeman interrogated suspect about a murder, gave him a new Miranda 
warning, and suspect made incriminating admission; since police 
``scrupulously honored'' suspect's request, admission valid).
---------------------------------------------------------------------------

        Fifth, a properly warned suspect may waive his Miranda rights 
and submit to custodial interrogation. Miranda recognized that a suspect 
may voluntarily and knowingly give up his rights and re

[[Page 1338]]
spond to questioning, but the Court cautioned that the prosecution bore 
a ``heavy burden'' to establish that a valid waiver had occurred.\340\ 
While the waiver need not be express in order for it to be valid,\341\ 
neither may a suspect's silence or similar conduct constitute a 
waiver.\342\ It must be shown that the suspect was competent to 
understand and appreciate the warning and to be able to waive his 
rights.\343\ Essentially, resolution of the issue of waiver ``must be 
determined on `the particular facts and circumstances surrounding that 
case, including the background, experience, and conduct of the 
accused.'''\344\

        \340\Miranda v. Arizona, 384 U.S. 436, 475 (1966).
        \341\North Carolina v. Butler, 441 U.S. 369 (1979).
        \342\Id. at 373. But silence, ``coupled with an understanding of 
his rights and a course of conduct indicating waiver,'' may support a 
conclusion of waiver. Id.
        \343\Tague v. Louisiana, 444 U.S. 469 (1980). A knowing and 
intelligent waiver need not be predicated on complete disclosure by 
police of the intended line of questioning, hence an accused's signed 
waiver following arrest for one crime is not invalidated by police 
having failed to inform him of intent to question him about another 
crime. Colorado v. Spring, 479 U.S. 564 (1987).
        \344\North Carolina v. Butler, 441 U.S. 369, 374-75 (1979) 
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Oregon v. 
Elstad, 470 U.S. 298 (1985), the Court held that a confession following 
a Miranda warning is not necessarily tainted by an earlier confession 
obtained without a warning, as long as the earlier confession had been 
voluntary. And see Moran v. Burbine, 475 U.S. 412 (1986) (signed waivers 
following Miranda warnings not vitiated by police having kept from 
suspect information that attorney had been retained for him by 
relative).
---------------------------------------------------------------------------

        Sixth, the admissions of an unwarned or improperly warned 
suspect may not be used directly against him at trial, but the Court has 
permitted some use for other purposes, such as impeachment. A confession 
or other incriminating admissions obtained in violation of Miranda may 
not, of course, be introduced against him at trial for purposes of 
establishing guilt\345\ or for determining the sentence, at least in 
bifurcated trials in capital cases,\346\ and neither may the ``fruits'' 
of such a confession or admission be used.\347\ The Court, in opinions 
which bespeak a sense of necessity to narrowly construe Miranda, has 
broadened the permissible impeachment purposes for which unlawful 
confessions and admissions may

[[Page 1339]]
be used.\348\ Thus, in Harris v. New York,\349\ the Court held that the 
prosecution could use statements, obtained in violation of Miranda, to 
impeach the defendant's testimony if he voluntarily took the stand and 
denied commission of the offense. Subsequently, in Oregon v. Hass,\350\ 
the Court permitted impeachment use of a statement made by the defendant 
after police had ignored his request for counsel following his Miranda 
warning. Such impeachment material, however, must still meet the 
standard of voluntariness associated with the pre-Miranda tests for the 
admission of confessions and statements.\351\

        \345\Miranda v. Arizona, 384 U.S. 436, 479 (1966).
        \346\Estelle v. Smith, 451 U.S. 454 (1981). The Court has yet to 
consider the applicability of the ruling in a noncapital, nonbifurcated 
trial case.
        \347\Cf. Harrison v. United States, 392 U.S. 219 (1968) (after 
confessions obtained in violation of McNabb-Mallory were admitted 
against him, defendant took the stand to rebut them and made damaging 
admissions; after his first conviction was reversed, he was retried 
without the confessions, but the prosecutor introduced his rebuttal 
testimony from the first trial; Court reversed conviction because 
testimony was tainted by the admission of the confessions). But see 
Michigan v. Tucker, 417 U.S. 433 (1974). Confessions may be the 
poisonous fruit of other constitutional violations, such as illegal 
searches or arrests. E.g., Brown v. Illinois, 422 U.S. 590 (1975); 
Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 
687 (1982).
        \348\Under Walter v. United States, 347 U.S. 62 (1954), the 
defendant not only denied the offense of which he was accused (sale of 
drugs), but also asserted he had never dealt in drugs. The prosecution 
was permitted to impeach him concerning heroin seized illegally from his 
home two years before. The Court observed that the defendant could have 
denied the offense without making the ``sweeping'' assertions, as to 
which the government could impeach him.
        \349\401 U.S. 222 (1971). The defendant had denied only the 
commission of the offense. The Court observed that it was only 
``speculative'' to think that impermissible police conduct would be 
encouraged by permitting such impeachment, a resort to deterrence 
analysis being contemporaneously used to ground the Fourth Amendment 
exclusionary rule, whereas the defendant's right to testify was the 
obligation to testify truthfully and the prosecution could impeach him 
for committing perjury. See also United States v. Havens, 446 U.S. 620 
(1980) (Fourth Amendment).
        \350\420 U.S. 714 (1975). By contrast, a defendant may not be 
impeached by evidence of his silence after police have warned him of his 
right to remain silent. Doyle v. Ohio, 426 U.S. 610 (1976).
        \351\E.g., Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. 
Portash, 440 U.S. 450 (1979).
---------------------------------------------------------------------------

        The Court has created a ``public safety'' exception to the 
Miranda warning requirement, but has refused to create another exception 
for misdemeanors and lesser offenses. In New York v. Quarles,\352\ the 
Court held admissible a recently apprehended suspect's response in a 
public supermarket to the arresting officer's demand to know the 
location of a gun that the officer had reason to believe the suspect had 
just discarded or hidden in the supermarket. The Court, in an opinion by 
Justice Rehnquist,\353\ declined to place officers in the ``untenable 
position'' of having to make instant decisions as to whether to proceed 
with Miranda warnings and thereby increase the risk to themselves or to 
the public or whether to dispense with the warnings and run the risk 
that resulting evidence will be excluded at trial. While acknowledging 
that the exception itself will ``lessen the desirable clarity of the 
rule,'' the Court predicted that confusion would be slight: ``[w]e think 
that police officers can and will distinguish almost instinctively 
between

[[Page 1340]]
questions necessary to secure their own safety or the safety of the 
public and questions designed solely to elicit testimonial evidence from 
a suspect.''\354\ No such compelling justification was offered for a 
Miranda exception for lesser offenses, however, and protecting the 
rule's ``simplicity and clarity'' counseled against creating one.\355\ 
``[A] person subjected to custodial interrogation is entitled to the 
benefit of the procedural safeguards enunciated in Miranda, regardless 
of the nature or severity of the offense of which he is suspected or for 
which he was arrested.''\356\

        \352\467 U.S. 649 (1984).
        \353\The Court's opinion was joined by Chief Justice Burger and 
by Justices White, Blackmun, and Powell. Justice O'Connor would have 
ruled inadmissible the suspect's response, but not the gun retrieved as 
a result of the response, and Justices Marshall, Brennan, and Stevens 
dissented.
        \354\467 U.S. at 658-59.
        \355\Berkemer v. McCarty, 468 U.S. 420, 432 (1984).
        \356\468 U.S. at 434.
---------------------------------------------------------------------------

                             FIFTH AMENDMENT

                            RIGHTS OF PERSONS


      The Operation of the Exclusionary Rule

        Supreme Court Review.--The Court's review of the question of 
admissibility of confessions or other incriminating statements is 
designed to prevent the foreclosure of the very question to be decided 
by it, the issue of voluntariness under the due process standard, the 
issue of the giving of the requisite warnings and the subsequent waiver, 
if there is one, under the Miranda rule. Recurring to Justice 
Frankfurter's description of the inquiry as a ``three-phased process'' 
in due process cases at least,\357\ it can be seen that the Court's 
self-imposed rules of restraint on review of lower-court factfinding 
greatly influenced the process. The finding of facts surrounding the 
issue of coercion--the length of detention, circumstances of 
interrogation, use of violence or of tricks and ruses, et cetera--is the 
proper function of the trial court which had the advantage of having the 
witnesses before it. ``This means that all testimonial conflict is 
settled by the judgment of the state courts. Where they have made 
explicit findings of fact, those findings conclude us and form the basis 
of our review--with the one caveat, necessarily, that we are not to be 
bound by findings wholly lacking support in evidence.''\358\

        \357\Culombe v. Connecticut, 367 U.S. 568, 603-06 (1961).
        \358\Id. at 603. See Ashcraft v. Tennessee, 322 U.S. 143, 152-53 
(1944); Lyons v. Oklahoma, 322 U.S. 596, 602-03 (1944); Watts v. 
Indiana, 338 U.S. 49, 50-52 (1949); Gallegos v. Nebraska, 342 U.S. 55, 
60-62 (1951); Stein v. New York, 346 U.S. 156, 180-82 (1953); Payne v. 
Arkansas, 356 U.S. 560, 561-62 (1958).
---------------------------------------------------------------------------

        However, the conclusions of the lower courts as to how the 
accused reacted to the circumstances of his interrogation, and as to the 
legal significance of how he reacted, are subject to open review. ``No 
more restricted scope of review would suffice adequately to protect 
federal constitutional rights. For the mental state of involuntariness 
upon which the due process question turns can never be affirmatively 
established other than circumstantially--

[[Page 1341]]
that is, by inference; and it cannot be competent to the trier of fact 
to preclude our review simply be declining to draw inferences which the 
historical facts compel. Great weight, of course, is to be accorded to 
the inferences which are drawn by the state courts. In a dubious case, 
it is appropriate . . . that the state court's determination should 
control. But where, on the uncontested external happenings, coercive 
forces set in motion by state law enforcement officials are unmistakably 
in action; where these forces, under all the prevailing states of 
stress, are powerful enough to draw forth a confession; where, in fact, 
the confession does come forth and is claimed by the defendant to have 
been extorted from him; and where he has acted as a man would act who is 
subjected to such an extracting process--where this is all that appears 
in the record--a State judgment that the confession was voluntary cannot 
stand.''\359\ Miranda, of course, does away with the judgments about the 
effect of lack of warnings, and the third phase, the legal determination 
of the interaction of the first two phases, is determined solely by two 
factual determinations: whether the warnings were given and if so 
whether there was a valid waiver. Presumably, supported determinations 
of these two facts by trial courts would preclude independent review by 
the Supreme Court. Yet, the Court has been clear that it may and will 
independently review the facts when the factfinding has such a 
substantial effect on constitutional rights.\360\

        \359\Culombe v. Connecticut, 367 U.S. 568, 605 (1961). See Watts 
v. Indiana, 338 U.S. 49, 51 (1949); Malinski v. New York, 324 U.S. 401, 
404, 417 (1945).
        \360\``In cases in which there is a claim of denial of rights 
under the Federal Constitution this Court is not bound by the 
conclusions of lower courts, but will re-examine the evidentiary basis 
on which those conclusions are founded.'' Niemotko v. Maryland, 340 U.S. 
268, 271 (1951); Time, Inc. v. Pape, 401 U.S. 279, 284 (1971), and cases 
cited therein.
---------------------------------------------------------------------------

        Procedure in the Trial Courts.--The Court has placed 
constitutional limitations upon the procedures followed by trial courts 
for determining the admissibility of confessions and other incriminating 
admissions. Three procedures were developed over time to deal with the 
question of admissibility when involuntariness was claimed. By the 
orthodox method, the trial judge heard all the evidence on voluntariness 
in a separate and preliminary hearing, and if he found the confession 
involuntary the jury never received it, while if he found it voluntary 
the jury received it with the right to consider its weight and 
credibility, which consideration included the circumstances of its 
making. By the New York method, the judge first reviewed the confession 
under a standard leading to its exclusion only if he found it not 
possible that ``reasonable men could differ over the [factual] 
inferences to be drawn'' from it; oth

[[Page 1342]]
erwise, the jury would receive the confession with instructions to first 
determine its voluntariness and to consider it if it were voluntary and 
to disregard it if it were not. By the Massachusetts method, the trial 
judge himself determined the voluntariness question and if he found the 
confession involuntary the jury never received it; if he found it to 
have been voluntarily made he permitted the jury to receive it with 
instructions that the jurors should make their own independent 
determination of voluntariness.\361\

        \361\Jackson v. Denno, 378 U.S. 368, 410-23 (1964) (appendix to 
opinion of Justice Black concurring in part and dissenting in part).
---------------------------------------------------------------------------

        The New York method was upheld against constitutional attack in 
Stein v. New York,\362\ but eleven years later a five-to-four decision 
in Jackson v. Denno,\363\ found it inadequate to protect the due process 
rights of defendants. The procedure did not, the Court held, ensure a 
``reliable determination on the issue of voluntariness'' and did not 
sufficiently guarantee that convictions would not be grounded on 
involuntary confessions. Since there was only a general jury verdict of 
guilty, it was impossible to determine whether the jury had first 
focused on the issue of voluntariness and then either had found the 
confession voluntary and considered it on the question of guilt or had 
found it involuntary, disregarded it, and reached a conclusion of guilt 
on wholly independent evidence. It was doubtful that a jury could 
appreciate the values served by the exclusion of involuntary confessions 
and put out of mind the content of the confession no matter what was 
determined with regard to its voluntariness. The rule was reiterated in 
Sims v. Georgia,\364\ in which the Court voided a state practice 
permitting the judge to let the confession go to the jury for the 
ultimate decision on voluntariness, upon an initial determination merely 
that the prosecution had made out a prima facie case that the confession 
was voluntary. The Court has interposed no constitutional objection to 
utilization of either the orthodox or the Massachusetts method for 
determining admissibility.\365\ It has held that the prosecution bears 
the burden of establishing voluntariness by a prepon

[[Page 1343]]
derance of the evidence, rejecting a contention that it should be 
determined only upon proof beyond a reasonable doubt,\366\ or by clear 
and convincing evidence.\367\

        \362\346 U.S. 156, 170-79 (1953). Significant to the Court's 
conclusion on this matter was the further conclusion of the majority 
that coerced confessions were inadmissible solely because of their 
unreliability; if their trustworthiness could be established the 
utilization of an involuntary confession violated no constitutional 
prohibition. This conception was contrary to earlier cases and was 
subsequently repudiated. See Jackson v. Denno, 378 U.S. 368, 383-87 
(1964).
        \363\378 U.S. 368 (1964). On the sufficiency of state court 
determinations, see Swenson v. Stidham, 409 U.S. 224 (1972); La Vallee 
v. Della Rose, 410 U.S. 690 (1973).
        \364\385 U.S. 538 (1967).
        \365\Jackson v. Denno, 378, 378 U.S. 368 and n.8 (1964); Lego v. 
Twomey, 404 U.S. 477, 489-90 (1972) (rejecting contention that jury 
should be required to pass on voluntariness following judge's 
determination).
        \366\Lego v. Twomey, 404 U.S. 477 (1972).
        \367\Colorado v. Connelly, 479 U.S. 157 (1986).
---------------------------------------------------------------------------



 
 
                               DUE PROCESS

      History and Scope

        ``It is now the settled doctrine of this Court that the Due 
Process Clause embodies a system of rights based on moral principles so 
deeply imbedded in the traditions and feelings of our people as to be 
deemed fundamental to a civilized society as conceived by our whole 
history. Due Process is that which comports with the deepest notions of 
what is fair and right and just.''\1\ The content of due process is ``a 
historical product''\2\ that traces all the way back to chapter 39 of 
Magna Carta, in which King John promised that ``[n]o free man shall be 
taken or imprisoned or disseized or exiled or in any way destroyed, nor 
will we go upon him nor send upon him, except by the lawful judgment of 
his peers or by the law of the land.''\3\ The phrase ``due process of 
law'' first appeared in a statutory rendition of this chapter in 1354. 
``No man of what state or condition he be, shall be put out of his lands 
or tenements nor taken, nor disinherited, nor put to death, without he 
be brought to answer by due process of law.''\4\ Though Magna Carta was 
in essence the result of a struggle over interest between the King and 
his barons,\5\ this particular clause over time transcended any such 
limitation of scope, and throughout the fourteenth century par

[[Page 1344]]
liamentary interpretation expanded far beyond the intention of any of 
its drafters.\6\ The understanding which the founders of the American 
constitutional system, and those who wrote the due process clauses, 
brought to the subject they derived from Coke, who in his Second 
Institutes expounded the proposition that the term ``by law of the 
land'' was equivalent to ``due process of law,'' which he in turn 
defined as ``by due process of the common law,'' that is, ``by the 
indictment or presentment of good and lawful men . . . or by writ 
original of the Common Law.''\7\ The significance of both terms was 
procedural, but there was in Coke's writings on chapter 29 a rudimentary 
concept of substantive restrictions, which did not develop in England 
because of parliamentary supremacy, but which was to flower in the 
United States.

        \1\Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice 
Frankfurter dissenting). Due process is violated if a practice or rule 
``offends some principle of justice so rooted in the traditions and 
conscience of our people as to be ranked as fundamental.'' Snyder v. 
Massachusetts, 291 U.S. 97, 105 (1934).
        \2\Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).
        \3\Text and commentary on this chapter may be found in W. 
McKechnie, Magna Carta--A Commentary on the Great Charter of King John 
375-95 (Glasgow, 2d rev. ed. 1914). The chapter became chapter 29 in the 
Third Reissue of Henry III in 1225. Id. at 504, and see 139-59. As 
expanded, it read: ``No free man shall be taken or imprisoned or 
deprived of his freehold or his liberties or free customs, or outlawed 
or exiled, or in any manner destroyed, nor shall we come upon him or 
send against him, except by a legal judgment of his peers or by the law 
of the land.'' See also J. Holt, Magna Carta 226-29 (Cambridge: 1965). 
The 1225 reissue also added to chapter 29 the language of chapter 40 of 
the original text: ``To no one will we sell, to no one will we deny or 
delay right or justice.'' This 1225 reissue became the standard text 
thereafter.
        \4\28 Edw. III, c. 3. See F. Thompson, Magna Carta--Its Role in 
the Making of the English Constitution, 1300-1629, 86-97 (1948), 
recounting several statutory reconfirmations. Note that the limitation 
of ``free man'' had given way to the all-inclusive delineation.
        \5\W. McKechnie, Magna Carta--A Commentary on the Great Charter 
of King John (Glasgow: 2d rev. ed. 1914); J. Holt, Magna Carta 
(Cambridge: 1965).
        \6\F. Thompson, Magna Carta--Its Role in the Making of the 
English Constitution, 1300-1629 (Minneapolis: 1948).
        \7\Sir Edward Coke, Institutes of the Laws of England, Part II, 
50-51 (London: 1641). For a review of the influence of Magna Carta and 
Coke on the colonies and the new nation, see, e.g., A. Howard, The Road 
from Runnymede--Magna Carta and Constitutionalism in America (1968).
---------------------------------------------------------------------------

        The term ``law of the land'' was early the preferred expression 
in colonial charters and declarations of rights, which gave way to the 
term ``due process of law,'' although some state constitutions continued 
to employ both terms. Whichever phraseology was used, the expression 
seems generally to have occurred in close association with precise 
safeguards of accused persons, but, as is true of the Fifth Amendment 
here under consideration, the provision also suggests some limitations 
on substance because of its association with the guarantee of just 
compensation upon the taking of private property for public use.\8\

        \8\The 1776 Constitution of Maryland, for example, in its 
declaration of rights, used the language of Magna Carta including the 
``law of the land'' phrase in a separate article, 3 F. Thorpe, The 
Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d 
Sess. 1688 (1909), whereas Virginia used the clause in a section of 
guarantees of procedural rights in criminal cases. 7 id. at 3813. New 
York in its constitution of 1821 was the first State to pick up ``due 
process of law'' from the United States Constitution. 5 id. at 2648.
---------------------------------------------------------------------------

        Scope of the Guaranty.--Standing by itself, the phrase ``due 
process'' would seem to refer solely and simply to procedure, to process 
in court, and therefore to be so limited that ``due process of law'' 
would be what the legislative branch enacted it to be. But that is not 
the interpretation which has been placed on the term. ``It is manifest 
that it was not left to the legislative power to enact any process which 
might be devised. The article is a restraint on the legislative as well 
as on the executive and judicial powers of the government, and cannot be 
so construed as to leave congress

[[Page 1345]]
free to make any process `due process of law' by its mere will.''\9\ All 
persons within the territory of the United States are entitled to its 
protection, including corporations,\10\ aliens,\11\ and presumptively 
citizens seeking readmission to the United States,\12\ but States as 
such are not so entitled.\13\ It is effective in the District of 
Columbia\14\ and in territories which are part of the United States,\15\ 
but it does not apply of its own force to unincorporated 
territories.\16\ Nor does it reach enemy alien belligerents tried by 
military tribunals outside the territorial jurisdiction of the United 
States.\17\

        \9\Murray's Lessee v. Hoboken Land and Improvement Co. 59 U.S. 
(18 How.) 272, 276 (1856). Webster had made the argument as counsel in 
Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518-82 
(1819). And see Chief Justice Shaw's opinion in Jones v. Robbins, 74 
Mass. (8 Gray) 329 (1857).
        \10\Sinking Fund Cases, 99 U.S. 700, 719 (1879).
        \11\Wong Wing v. United States, 163 U.S. 228, 238 (1896).
        \12\United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon 
Quon Poy v. Johnson, 273 U.S. 352 (1927).
        \13\South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966).
        \14\Wight v. Davidson, 181 U.S. 371, 384 (1901).
        \15\Lovato v. New Mexico, 242 U.S. 199, 201 (1916).
        \16\Public Utility Comm'rs v. Ynchausti & Co., 251 U.S. 401, 406 
(1920).
        \17\Johnson v. Eisentrager, 339 U.S. 763 (1950); In re 
Yamashita, 327 U.S. 1 (1946). Justices Rutledge and Murphy in the latter 
case argued that the due process clause applies to every human being, 
including enemy belligerents.
---------------------------------------------------------------------------

        Early in our judicial history, a number of jurists attempted to 
formulate a theory of natural rights--natural justice, which would limit 
the power of government, especially with regard to the property rights 
of persons.\18\ State courts were the arenas in which this struggle was 
carried out prior to the Civil War. Opposing the ``vested rights'' 
theory of protection of property were jurists who argued first, that the 
written constitution was the supreme law of the State and that judicial 
review could look only to that document in scrutinizing legislation and 
not to the ``unwritten law'' of ``natural rights,'' and second, that the 
``police power'' of government enabled legislatures to regulate the use 
and holding of property in the public interest, subject only to the 
specific prohibitions of the written constitution. The ``vested rights'' 
jurists thus found in the ``law of the land'' and the ``due process'' 
clauses of the state constitutions a restriction upon the substantive 
content of legislation, which prohibited, regardless of the matter of 
procedure, a certain kind or degree of exertion of legislative power 
altogether.\19\ Thus, Chief Justice Taney was not innovating when in his 
opinion in the Dred Scott case he pronounced, without elaboration, that 
one of the reasons the Missouri Compromise was unconstitutional was that 
an

[[Page 1346]]
act of Congress which deprived ``a citizen of his liberty or property 
merely because he came himself or brought his property into a particular 
territory of the United States, and who had committed no offence against 
the laws, could hardly be dignified with the name of due process of 
law.''\20\ Following the War, with the ratification of the Fourteenth 
Amendment's due process clause, substantive due process interpretations 
were urged on the Supreme Court with regard to state legislation; first 
resisted, the arguments came in time to be accepted, and they imposed 
upon both federal and state legislation a firm judicial hand which was 
not to be removed until the crisis of the 1930's, and which today in 
non-economic legislation continues to be reasserted.

        \18\Compare the remarks of Justices Chase and Iredell in Calder 
v. Bull, 3 U.S. (3 Dall.) 386, 388-89, 398-99 (1798).
        \19\The full account is related in E. Corwin, Liberty Against 
Government ch. 3 (1948). The pathbreaking decision of the era was 
Wynhamer v. The People, 13 N.Y. 378 (1856).
        \20\Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857).
---------------------------------------------------------------------------

        ``It may prevent confusion, and relieve from repetition, if we 
point out that some of our cases arose under the provisions of the Fifth 
and others under those of the Fourteenth Amendment to the Constitution 
of the United States. While the language of those Amendments is the 
same, yet as they were engrafted upon the Constitution at different 
times and in widely different circumstances of our national life, it may 
be that questions may arise in which different constructions and 
applications of their provisions may be proper.''\21\ The most obvious 
difference between the two due process clauses is that the Fifth 
Amendment clause as it binds the Federal Government coexists with a 
number of other express provisions in the Bill of Rights guaranteeing 
fair procedure and non-arbitrary action, such as jury trials, grand jury 
indictments, and nonexcessive bail and fines, as well as just 
compensation, whereas the Fourteenth Amendment clause as it binds the 
States has been held to contain implicitly not only the standards of 
fairness and justness found within the Fifth Amendment's clause but also 
to contain many guarantees that are expressly set out in the Bill of 
Rights. In that sense, the two clauses are not the same thing, but 
insofar as they do impose such implicit requirements of fair trials, 
fair hearings, and the like, which exist separately from, though they 
are informed with, express constitutional guarantees, the interpretation 
of the two clauses is substantially if not wholly the same. Save for 
areas in which the particularly national character of the Federal 
Government requires separate treatment, discussion of the meaning of due 
process is largely reserved for the section on the Fourteenth Amendment. 
Finally, it should be noted that some Fourteenth Amendment 
interpretations have been carried back to broaden interpretations of the 
Fifth Amendment's due

[[Page 1347]]
process clause, such as, e.g., the development of equal protection 
standards as an aspect of Fifth Amendment due process.

        \21\French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 
(1901).
---------------------------------------------------------------------------
      Procedural Due Process

        In 1855, the Court first attempted to assess its standards for 
judging what was due process. At issue was the constitutionality of 
summary proceedings under a distress warrant to levy on the lands of a 
government debtor. The Court first ascertained that Congress was not 
free to make any process ``due process.'' ``To what principles, then are 
we to resort to ascertain whether this process, enacted by congress, is 
due process? To this the answer must be twofold. We must examine the 
constitution itself, to see whether this process be in conflict with any 
of its provisions. If not found to be so, we must look to those settled 
usages and modes of proceedings existing in the common and statute law 
of England, before the emigration of our ancestors and which are shown 
not to have been unsuited to their civil and political condition by 
having been acted on by them after the settlement of this country.'' A 
survey of history disclosed that the law in England seemed always to 
have contained a summary method for recovering debts owned the Crown not 
unlike the law in question. Thus, ``tested by the common and statute law 
of England prior to the emigration of our ancestors, and by the laws of 
many of the States at the time of the adoption of this amendment, the 
proceedings authorized by the act of 1820 cannot be denied to be due 
process of law. . . .''\22\

        \22\Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. 
(18 How.) 272, 276-77, 280 (1856). A similar approach was followed in 
Fourteenth Amendment due process interpretation in Davidson v. City of 
New Orleans, 96 U.S. 97 (1878), and Munn v. Illinois, 94 U.S. 113 
(1877).
---------------------------------------------------------------------------

        This formal approach to the meaning of due process could 
obviously have limited both Congress and the state legislatures in the 
development of procedures unknown to English law. But when California's 
abandonment of indictment by grand jury was challenged, the Court 
refused to be limited by the fact that such proceeding was the English 
practice and that Coke had indicated that it was a proceeding required 
as ``the law of the land.'' The meaning of the Court in Murray's Lessee 
was ``that a process of law, which is not otherwise forbidden, must be 
taken to be due process of law, if it can show the sanction of settled 
usage both in England and in this country; but it by no means follows 
that nothing else can be due process of law.'' To hold that only 
historical, traditional procedures can constitute due process, the Court 
said, ``would be to deny every quality of the law but its age, and to 
render it incapable

[[Page 1348]]
of progress or improvement.''\23\ Therefore, in observing the due 
process guarantee, it was concluded, the Court must look ``not [to] 
particular forms of procedures, but [to] the very substance of 
individual rights to life, liberty, and property.'' The due process 
clause prescribed ``the limits of those fundamental principles of 
liberty and justice which lie at the base of all our civil and political 
institutions. . . . It follows that any legal proceeding enforced by 
public authority, whether sanctioned by age and custom, or newly devised 
in the discretion of the legislative power, in furtherance of the 
general public good, which regards and preserves these principles of 
liberty and justice, must be held to be due process of law.''\24\

        \23\Hurtado v. California, 110 U.S. 516, 528-29 (1884).
        \24\Id. at 531-32, 535, 537. This flexible approach has been the 
one followed by the Court. E.g., Twining v. New Jersey, 211 U.S. 78 
(1908); Powell v. Alabama, 287 U.S. 45 (1932); Palko v. Connecticut, 302 
U.S. 319 (1937); Snyder v. Massachusetts, 291 U.S. 97 (1934).
---------------------------------------------------------------------------

        Generally.--The phrase ``due process of law'' does not 
necessarily imply a proceeding in a court or a plenary suit and trial by 
jury in every case where personal or property rights are involved.\25\ 
``In all cases, that kind of procedure is due process of law which is 
suitable and proper to the nature of the case, and sanctioned by the 
established customs and usages of the courts.''\26\ What is unfair in 
one situation may be fair in another.\27\ ``The precise nature of the 
interest that has been adversely affected, the manner in which this was 
done, the reasons for doing it, the available alternatives to the 
procedure that was followed, the protection implicit in the office of 
the functionary whose conduct is challenged, the balance of hurt 
complained of and good accomplished--these are some of the 
considerations that must enter into the judicial judgment.''\28\

        \25\Davidson v. City of New Orleans, 96 U.S. 97, 102 (1878); 
Public Clearing House v. Coyne, 194 U.S. 497, 508 (1904).
        \26\Ex parte Wall, 107 U.S. 265, 289 (1883).
        \27\Compare Murray's Lessee v. Hoboken Land & Improvement Co., 
59 U.S. (18 How.) 272 (1856), with Ng Fung Ho v. White, 259 U.S. 276 
(1922).
        \28\Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 
163 (1951) (Justice Frankfurter concurring).
---------------------------------------------------------------------------

        Administrative Proceedings: A Fair Hearing.--With respect to 
action taken by administrative agencies, the Court has held that the 
demands of due process do not require a hearing at the initial stage, or 
at any particular point in the proceeding, so long as a hearing is held 
before the final order becomes effective.\29\ In Bowles v. 
Willingham,\30\ the Court sustained orders fixing maximum rents issued 
without a hearing at any stage, saying ``where Congress has provided for 
judicial review after the regulations or

[[Page 1349]]
orders have been made effective it has done all that due process under 
the war emergency requires.'' But where, after consideration of charges 
brought against an employer by a complaining union, the National Labor 
Relations Board undertook to void an agreement between an employer and 
another independent union, the latter was entitled to notice and an 
opportunity to participate in the proceedings.\31\ Although a taxpayer 
must be afforded a fair opportunity for hearing in connection with the 
collection of taxes,\32\ collection by distraint of personal property is 
lawful if the taxpayer is allowed a hearing thereafter.\33\

        \29\Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 
(1941).
        \30\321 U.S. 503, 521 (1944).
        \31\Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938).
        \32\Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907); Lipke 
v. Lederer, 259 U.S. 557 (1922).
        \33\Phillips v. Commissioner, 283 U.S. 589 (1931). Cf. Springer 
v. United States, 102 U.S. 586, 593 (1881); Passavant v. United States, 
148 U.S. 214 (1893). The collection of taxes is, however, very nearly a 
wholly unique area. See Perez v. Ledesma, 401 U.S. 82, 127 n.17 (1971) 
(Justice Brennan concurring in part and dissenting in part). On the 
limitations on private prejudgment collection, see Sniadach v. Family 
Finance Corp., 395 U.S. 337 (1969).
---------------------------------------------------------------------------

        When the Constitution requires a hearing it requires a fair one, 
held before a tribunal which meets currently prevailing standards of 
impartiality.\34\ A party must be given an opportunity not only to 
present evidence, but also to know the claims of the opposing party and 
to meet them. Those who are brought into contest with the Government in 
a quasi-judicial proceeding aimed at control of their activities are 
entitled to be fairly advised of what the Government proposes and to be 
heard upon the proposal before the final command is issued.\35\ But a 
variance between the charges and findings will not invalidate 
administrative proceedings where the record shows that at no time during 
the hearing was there any

[[Page 1350]]
misunderstanding as to the basis of the complaint.\36\ The mere 
admission of evidence which would be inadmissible in judicial 
proceedings does not vitiate the order of an administrative agency.\37\ 
A provision that such a body shall not be controlled by rules of 
evidence does not, however, justify orders without a foundation in 
evidence having rational probative force. Hearsay may be received in an 
administrative hearing and may constitute by itself substantial evidence 
in support of an agency determination, provided that there are present 
factors which assure the underlying reliability and probative value of 
the evidence and, at least in the case at hand, where the claimant 
before the agency had the opportunity to subpoena the witnesses and 
cross-examine them with regard to the evidence.\38\ While the Court has 
recognized that in some circumstances a ``fair hearing'' implies a right 
to oral argument,\39\ it has refused to lay down a general rule that 
would cover all cases.\40\

        \34\Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). But see 
Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (Justice Powell), 196-99 
(Justice White) (1974) (hearing before probably-partial officer at 
pretermination stage).
        \35\Margan v. United States, 304 U.S. 1, 18-19 (1938). The Court 
has experienced some difficulty with application of this principle to 
administrative hearings and subsequent review in selective service 
cases. Compare Gonzales v. United States, 348 U.S. 407 (1955) 
(conscientious objector contesting his classification before appeals 
board must be furnished copy of recommendation submitted by Department 
of Justice; only by being appraised of the arguments and conclusions 
upon which recommendations were based would he be enabled to present his 
case effectively), with United States v. Nugent, 346 U.S. 1 (1953) (in 
auxiliary hearing which culminated in Justice Department's report and 
recommendation, it is sufficient that registrant be provided with resume 
of adverse evidence in FBI report because the ``imperative needs of 
mobilization and national vigilance'' mandate a minimum of ``litigious 
interruption''), and Gonzales v. United States, 364 U.S. 59 (1960) 
(five-to-four decision finding no due process violation when petitioner 
(1) at departmental proceedings was not permitted to rebut statements 
attributed to him by his local board, because the statements were in his 
file and he had opportunity to rebut both before hearing officer and 
appeal board, nor (2) at trial was denied access to hearing officer's 
notes and report, because he failed to show any need and did have 
Department recommendations).
        \36\NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 349-50 
(1938).
        \37\Western Chem. Co. v. United States, 271 U.S. 268 (1926). See 
also United States v. Abilene & So. Ry., 265 U.S. 274, 288 (1924).
        \38\Richardson v. Perales, 402 U.S. 389 (1971).
        \39\Londoner v. Denver, 210 U.S. 373 (1908).
        \40\FCC v. WJR, 337 U.S. 265, 274-77 (1949). See also Inland 
Empire Council v. Millis, 325 U.S. 697, 710 (1945). See Administrative 
Procedure Act, 60 Stat. 237 (1946), 5 U.S.C Sec. Sec. 1001-1011. Cf. 
Link v. Wabash R.R., 370 U.S. 626, 637, 646 (1962), wherein the majority 
rejected Justice Black's dissenting thesis that the dismissal with 
prejudice of a damage suit without notice to the client and grounded 
upon the dilatory tactics of his attorney, and the latter's failure to 
appear at a pre-trial conference, amounted to a taking of property 
without due process of law.
---------------------------------------------------------------------------

        In the light of the historically unquestioned power of a 
commanding officer summarily to exclude civilians from the area of his 
command, and applicable Navy regulations which confirm this authority, 
together with a stipulation in the contract between a restaurant 
concessionaire and the Naval Gun Factory forbidding employment on the 
premises of any person not meeting security requirements, due process 
was not denied by the summary exclusion on security grounds of the 
concessionaire's cook, without hearing or advice as to the basis for the 
exclusion. The Fifth Amendment does not require a trial-type hearing in 
every conceivable case of governmental impairment of private 
interest.\41\ Since the Civil Rights

[[Page 1351]]
Commission acts solely as an investigative and fact-finding agency and 
makes no adjudications, the Court, in Hannah v. Larche,\42\ upheld 
supplementary rules of procedure adopted by the Commission, 
independently of statutory authorization, under which state electoral 
officials and others accused of discrimination and summoned to appear at 
its hearings, are not apprised of the identity

[[Page 1352]]
of their accusers, and witnesses, including the former, are not accorded 
a right to confront and cross-examine witnesses or accusers testifying 
at such hearings. Such procedural rights, the Court maintained, have not 
been granted by grand juries, congressional committees, or 
administrative agencies conducting purely fact-finding investigations in 
no way determining private rights.

        \41\Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 
886, 900-01 (1961). Four dissenters, Justices Brennan, Black, Douglas, 
and Chief Justice Warren, emphasized the inconsistency between the 
Court's acknowledgment that the cook had a right not to have her entry 
badge taken away for arbitrary reasons, and its rejection of her right 
to be told in detail the reasons for such action. The case has 
subsequently been cited as involving an ``extraordinary situation.'' 
Boddie v. Connecticut, 401 U.S. 371, 379 (1971); Goldberg v. Kelly, 397 
U.S. 254, 264 n.10 (1970).
        Manifesting a disposition to adjudicate on non-constitutional 
grounds dismissals of employees under the Federal Loyalty Program, the 
Court, in Peters v. Hobby, 349 U.S. 331 (1955), invalidated, as in 
excess of its delegated authority, a finding of reasonable doubt as to 
the loyalty of the petitioner by a Loyalty Review Board which, on its 
own initiative, reopened his case after he had twice been cleared by his 
Agency Loyalty Board, and arrived at its conclusion on the basis of 
adverse information not offered under oath and supplied by informants, 
not all of whom were known to the Review Board and none of whom was 
disclosed to petitioner for cross-examination by him. The Board was 
found not to possess any power to review on its own initiative. 
Concurring, Justices Douglas and Black condemned as irreconcilable with 
due process and fair play the use of faceless informers whom the 
petitioner is unable to confront and cross-examine.
        In Cole v. Young, 351 U.S. 536 (1956), also decided on the basis 
of statutory interpretation, there is an intimation that grave due 
process issues would be raised by the application to federal employees, 
not occupying sensitive positions, of a measure which authorized, in the 
interest of national security, summary suspensions and unreviewable 
dismissals of allegedly disloyal employees by agency heads. In Service 
v. Dulles, 354 U.S. 363 (1957), and Vitarelli v. Seaton, 359 U.S. 535 
(1959), the Court nullified dismissals for security reasons by invoking 
an established rule of administrative law to the effect that an 
administrator must comply with procedures outlined in applicable agency 
regulations, notwithstanding that such regulations conform to more 
rigorous substantive and procedural standards than are required by 
Congress or that the agency action is discretionary in nature. In both 
of the last cited decisions, dismissals of employees as security risks 
were set aside by reason of the failure of the employing agency to 
conform the dismissal to its established security regulations. See 
Accardi v. Shaughnessy, 347 U.S. 260 (1954).
        Again avoiding constitutional issues, the Court, in Greene v. 
McElroy, 360 U.S. 474 (1959), invalidated the security clearance 
procedure required of defense contractors by the Defense Department as 
being unauthorized either by law or presidential order. However, the 
Court suggested that it would condemn, on grounds of denial of due 
process, any enactment or Executive Order which sanctioned a comparable 
department security clearance program, under which a defense 
contractor's employee could have his security clearance revoked without 
a hearing at which he had the right to confront and cross-examine 
witnesses. Justices Frankfurter, Harlan, and Whittaker concurred without 
passing on the validity of such procedure, if authorized. Justice Clark 
dissented. See also the dissenting opinions of Justices Douglas and 
Black in Beard v. Stahr, 370 U.S. 41, 43 (1962), and in Williams v. 
Zuckert, 371 U.S. 531, 533 (1963).
        \42\363 U.S. 420, 493, 499 (1960). Justices Douglas and Black 
dissented on the ground that when the Commission summons a person 
accused of violating a federal election law with a view to ascertaining 
whether the accusation may be sustained, it acts in lieu of a grand jury 
or a committing magistrate, and therefore should be obligated to afford 
witnesses the procedural protection herein denied. Congress subsequently 
amended the law to require that any person who is defamed, degraded, or 
incriminated by evidence or testimony presented to the Commission be 
afforded the opportunity to appear and be heard in executive session, 
with a reasonable number of additional witnesses requested by him, 
before the Commission can make public such evidence or testimony. 
Further, any such person, before the evidence or testimony is released, 
must be afforded an opportunity to appear publicly to state his side and 
to file verified statements with the Commission which it must release 
with any report or other document containing defaming, degrading, or 
incriminating evidence or testimony. Pub. L. No. 91-521, Sec. 4, 84 
Stat. 1357 (1970), 42 U.S.C. Sec. 1975a(e). Cf. Jenkins v. McKeithen, 
395 U.S. 411 (1969).
---------------------------------------------------------------------------

        Aliens: Entry and Deportation.--To aliens who have never been 
naturalized or acquired any domicile or residence in the United States, 
the decision of an executive or administrative officer, acting within 
powers expressly conferred by Congress, with regard to whether or not 
they shall be permitted to enter the country, is due process of law.\43\ 
Since the status of a resident alien returning from abroad is equivalent 
to that of an entering alien, his exclusion by the Attorney General 
without a hearing, on the basis of secret, undisclosed information, also 
is deemed consistent with due process.\44\ The complete authority of 
Congress in the matter of admission of aliens justifies delegation of 
power to executive officers to enforce the exclusion of aliens afflicted 
with contagious diseases by imposing upon the owner of the vessel 
bringing any such alien into the country a money penalty, collectible 
before and as a condition of the grant of clearance.\45\ If the person 
seeking admission claims American citizenship, the decision of the 
Secretary of Labor may be made final, but it must be made after a fair 
hearing, however summary, and must find adequate support in the 
evidence. A decision based upon a record from which relevant and 
probative evidence has been omitted is not a fair hearing.\46\ Where the 
statute made the decision of an immigration inspector final unless an 
appeal was

[[Page 1353]]
taken to the Secretary of the Treasury, a person who failed to take such 
an appeal did not, by an allegation of citizenship, acquire a right to a 
judicial hearing on habeas corpus.\47\

        \43\United States v. Ju Toy, 198 U.S. 253, 263 (1905). See also 
The Japanese Immigrant Case, 189 U.S. 86, 100 (1903). Cf. United States 
ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).
        \44\Shaughnessy v. United States ex rel. Mezel, 345 U.S. 206 
(1953). The long continued detention on Ellis Island of a non-deportable 
alien does not change his status or give rise to any right of judicial 
review. In dissent, Justices Black and Douglas maintained that the 
protracted confinement on Ellis Island without a hearing could not be 
reconciled with due process. Also dissenting, Justices Frankfurter and 
Jackson contended that when indefinite commitment on Ellis Island 
becomes the means of enforcing exclusion, due process requires that a 
hearing precede such deprivation of liberty.
        Cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953), wherein 
the Court, after acknowledging that resident aliens held for deportation 
are entitled to procedural due process, ruled that as a matter of law 
the Attorney General must accord notice of the charges and a hearing to 
a resident alien seaman who is sought to be ``expelled'' upon his return 
from a voyage overseas. The Knauff case was distinguished on the ground 
that the seaman's status was not that of an entrant, but rather that of 
a resident alien. And see Leng May Ma v. Barber, 357 U.S. 185 (1958).
        \45\Oceanic Navig. Co. v. Stranahan, 214 U.S. 320 (1909).
        \46\Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also 
Chin Yow v. United States, 208 U.S. 8 (1908).
        \47\United States v. Sing Tuck, 194 U.S. 161 (1904). See also 
Quon Quon Poy v. Johnson, 273 U.S. 352, 358 (1927).
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        Deportation proceedings are not criminal prosecutions within the 
meaning of the Bill of Rights.\48\ The authority to deport is drawn from 
the power of Congress to regulate the entrance of aliens and impose 
conditions upon their continued liberty to reside within the United 
States. Findings of fact reached by executive officers after a fair, 
though summary deportation hearing may be made conclusive.\49\ In Wong 
Yang Sung v. McGrath,\50\ however, the Court intimated that a hearing 
before a tribunal which did not meet the standards of impartiality 
embodied in the Administrative Procedure Act\51\ might not satisfy the 
requirements of due process of law. To avoid such constitutional doubts, 
the Court construed the law to disqualify immigration inspectors as 
presiding officers in deportation proceedings. Except in time of war, 
deportation without a fair hearing or on charges unsupported by any 
evidence is a de

[[Page 1354]]
nial of due process which may be corrected on habeas corpus.\52\ In 
contrast with the decision in United States v. Ju Toy\53\ that a person 
seeking entrance to the United States was not entitled to a judicial 
hearing on his claim of citizenship, a person arrested and held for 
deportation is entitled to a day in court if he denies that he is an 
alien.\54\ A closely divided Court has ruled that in time of war the 
deportation of an enemy alien may be ordered summarily by executive 
action; due process of law does not require the courts to determine the 
sufficiency of any hearing which is gratuitously afforded to the 
alien.\55\

        \48\Harisiades v. Shaughnessy, 342 U.S. 580 (1952). But this 
fact does not mean that a person may be deported on the basis of 
judgment reached on the civil standard of proof, that is, by a 
preponderance of the evidence. Rather, the Court has held, a deportation 
order may only be entered if it is found by clear, unequivocal, and 
convincing evidence that the facts alleged as grounds for deportation 
are true. Woodby v. INS, 385 U.S. 276 (1966). Woodby, and similar 
rulings, were the result of statutory interpretation and were not 
constitutionally compelled. Vance v. Terrazas, 444 U.S. 252, 266-67 
(1980).
        \49\Zakonaite v. Wolf, 226 U.S. 272 (1912). See Jay v. Boyd, 351 
U.S. 345 (1956), wherein the Court emphasized that suspension of 
deportation is not a matter of right, but of grace, like probation or 
parole, and accordingly an alien is not entitled to a hearing which 
contemplates full disclosure of the considerations, specifically, 
information of a confidential nature pertaining to national security, 
which induced administrative officers to deny suspension. In four 
dissenting opinions, Chief Justice Warren, together with Justices Black, 
Frankfurter, and Douglas, found irreconcilable with a fair hearing and 
due process the delegation by the Attorney General of his discretion to 
an inferior officer and the vesting of the latter with power to deny a 
suspension on the basis of undisclosed evidence which may amount to no 
more than uncorroborated hearsay.
        \50\339 U.S. 33 (1950). See also Kimm v. Rosenberg, 363 U.S. 
405, 408, 410, 415 (1960), wherein the Court ruled that when, at a 
hearing on his petition for suspension of a deportation order, an alien 
invoked the Fifth Amendment in response to questions as to Communist 
Party membership, and contended that the burden of proving such 
affiliation was on the Government, it was incumbent on the alien to 
supply the information inasmuch as the Government had no statutory 
discretion to suspend deportation of a Communist. Justices Douglas, 
Black, Brennan, and Chief Justice Warren dissented on the ground that 
exercise of the privilege is a neutral act, supporting neither innocence 
nor guilt and may not be utilized as evidence of dubious character. 
Justice Brennan also thought the Government was requiring the alien to 
prove non-membership when no one had intimated that he was a Communist.
        \51\5 U.S.C. Sec. Sec. 551 et seq.
        \52\Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106 
(1927). See also Mahler v. Eby, 264 U.S. 32, 41 (1924).
        Although in Heikkila v. Barber, 345 U.S. 229 (1953), the Court 
held that a deportation order under the Immigration Act of 1917 might be 
challenged only by habeas corpus, in Shaughnessy v. Pedreiro, 349 U.S. 
48 (1955), it established that, under the Immigration Act of 1952, 8 
U.S.C. Sec. 1101, the validity of a deportation order also may be 
contested in an action for declaratory judgment and injunctive relief. 
Also, a collateral challenge must be permitted to the use of a 
deportation proceeding as an element of a criminal offense where 
effective judicial review of the deportation order has been denied. 
United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
        \53\198 U.S. 253 (1905).
        \54\Ng Fung Ho v. White, 259 U.S. 276, 281 (1922).
        \55\Ludecke v. Watkins, 335 U.S. 160 (1948). Three of the four 
dissenting Justices, Douglas, Murphy, and Rutledge, argued that even an 
enemy alien could not be deported without a fair hearing.
---------------------------------------------------------------------------

        Judicial Review of Administrative Proceedings.--To the extent 
that constitutional rights are involved, due process of law imports a 
judicial review of the action of administrative or executive officers. 
This proposition is undisputed so far as questions of law are concerned, 
but the extent to which the courts should and will go in reviewing 
determinations of fact has been a highly controversial issue. In St. 
Joseph Stock Yards Co. v. United States,\56\ the Court held that upon 
review of an order of the Secretary of Agriculture establishing maximum 
rates for services rendered by a stockyard company, due process required 
that the court exercise its independent judgment upon the facts to 
determine whether the rates were confiscatory.\57\ Subsequent cases 
sustaining rate orders of the Federal Power Commission have not dealt 
explicitly with this point.\58\ The Court has said simply that a person 
assailing such an order ``carries the heavy burden of making a 
convincing showing that it is invalid because it is unjust and 
unreasonable in its consequences.''\59\

        \56\298 U.S. 38 (1936).
        \57\Id. at 51-54. Justices Brandeis, Stone, and Cardozo, while 
concurring in the result, took exception to this proposition.
        \58\FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); 
FPC v. Hope Gas Co., 320 U.S. 591 (1944).
        \59\FPC v. Hope Gas Co., 320 U.S. 591, 602 (1944).
        
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[[Page 1355]]

        There has been a division of opinion in the Supreme Court with 
regard to what extent, if at all, proceedings before military tribunals 
should be reviewed by the courts for the purpose of determining 
compliance with the due process clause. In In re Yamashita,\60\ the 
majority denied a petition for certiorari and petitions for writs of 
habeas corpus to review the conviction of a Japanese war criminal by a 
military commission sitting in the Philippine Islands. It held that 
since the military commission, in admitting evidence to which objection 
was made, had not violated any act of Congress, a treaty, or a military 
command defining its authority, its ruling on evidence and on the mode 
of conducting the proceedings were not reviewable by the courts. Again, 
in Johnson v. Eisentrager,\61\ the Court overruled a lower court 
decision, which in reliance upon the dissenting opinion in the Yamashita 
case, had held that the due process clause required that the legality of 
the conviction of enemy alien belligerents by military tribunals should 
be tested by the writ of habeas corpus.

        \60\327 U.S. 1 (1946).
        \61\339 U.S. 763 (1950). Justices Douglas, Black, and Burton 
dissented.
---------------------------------------------------------------------------

        Without dissent, the Court, in Hiatt v. Brown,\62\ reversed the 
judgment of a lower court which had discharged a prisoner serving a 
sentence imposed by a court-martial because of errors whereby the 
prisoner had been deprived of due process of law. The Court held that 
the court below had erred in extending its review, for the purpose of 
determining compliance with the due process clause, to such matters as 
the propositions of law set forth in the staff judge advocate's report, 
the sufficiency of the evidence to sustain conviction, the adequacy of 
the pre-trial investigation, and the competence of the law member and 
defense counsel. In summary, Justice Clark wrote: ``In this case the 
court-martial had jurisdiction of the person accused and the offense 
charged, and acted within its lawful powers. The correction of any 
errors it may have committed is for the military authorities which are 
alone authorized to review its decision.''\63\ Similarly, in Burns v. 
Wilson,\64\ the Court denied a petition for the writ to review a 
conviction by a military tribunal on the Island of Guam wherein the 
petitioners asserted that their imprisonment resulted from proceedings 
violative of their basic constitutional rights. Four Justices, with whom 
Justice Minton concurred, maintained that judicial review is limited to 
determining whether the military tribunal, or court-martial, had given 
fair consideration to each of petitioners' allegations, and does not 
embrace

[[Page 1356]]
an opportunity ``to prove de novo'' what petitioners had ``failed to 
prove in the military courts.'' According to Justice Minton, however, if 
the military court had jurisdiction, its action is not reviewable.

        \62\339 U.S. 103 (1950).
        \63\Id. at 111.
        \64\346 U.S. 137, 140-41, 146, 147, 148, 150, 153 (1953).
---------------------------------------------------------------------------
      Substantive Due Process 

        Justice Harlan, dissenting in Poe v. Ullman,\65\ observed that 
one view of due process, ``ably and insistently argued . . . , sought to 
limit the provision to a guarantee of procedural fairness.'' But, he 
continued, due process ``in the consistent view of this Court has ever 
been a broader concept . . . . Were due process merely a procedural 
safeguard it would fail to reach those situations where the deprivation 
of life, liberty or property was accomplished by legislation which by 
operating in the future could, given even the fairest possible procedure 
in application to individuals, nevertheless destroy the enjoyment of all 
three. . . . Thus the guaranties of due process, though having their 
roots in Magna Carta's `per legem terrae' and considered as procedural 
safeguards `against executive usurpation and tyranny,' have in this 
country `become bulwarks also against arbitrary legislation.'''

        \65\367 U.S. 497, 540, 541 (1961). The internal quotation is 
from Hurtado v. California, 110 U.S. 516, 532 (1884). Development of 
substantive due process is noted, supra, pp.1343-47 and is treated 
infra, under the Fourteenth Amendment.
---------------------------------------------------------------------------

        Discrimination.--``Unlike the Fourteenth Amendment, the Fifth 
contains no equal protection clause and it provides no guaranty against 
discriminatory legislation by Congress.''\66\ At other times, however, 
the Court assumed that ``discrimination, if gross enough, is equivalent 
to confiscation and subject under the Fifth Amendment to challenge and 
annulment.''\67\ The theory that was to prevail seems first to have been 
enunciated by Chief Justice Taft, who observed that the due process and 
equal protection clauses are ``associated'' and that ``[i]t may be that 
they overlap, that a violation of one may involve at times the violation 
of the other, but the spheres of the protection they offer are not 
coterminous. . . . [Due process] tends to secure equality of law in the 
sense that it makes a required minimum of protection for every one's 
right of life, liberty and property, which the Congress or the 
legislature may not withhold. Our whole system of law is predicated on 
the general, fundamental principle of equality of application of the 
law.''\68\ Thus, in Bolling v. Sharpe,\69\ a companion case to Brown

[[Page 1357]]
v. Board of Education,\70\ the Court held that segregation of pupils in 
the public schools of the District of Columbia violated the due process 
clause. ``The Fifth Amendment, which is applicable in the District of 
Columbia, does not contain an equal protection clause as does the 
Fourteenth Amendment which applies only to the states. But the concepts 
of equal protection and due process, both stemming from our American 
ideal of fairness, are not mutually exclusive. The `equal protection of 
the laws' is a more explicit safeguard of prohibited unfairness than 
`due process of law,' and, therefore, we do not imply that the two are 
always interchangeable phrases. But, as this Court has recognized, 
discrimination may be so unjustifiable as to be violative of due 
process.

        \66\Detroit Bank v. United States, 317 U.S. 329, 337 (1943); 
Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941).
        \67\Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937). See 
also Currin v. Wallace, 306 U.S. 1, 13-14 (1939).
        \68\Truax v. Corrigan, 257 U.S. 312, 331 (1921). See also 
Hirabayashi v. United States, 320 U.S. 81, 100 (1943).
        \69\347 U.S. 497, 499-500 (1954).
        \70\347 U.S. 483 (1954). With respect to race discrimination, 
the Court had earlier utilized its supervisory authority over the lower 
federal courts and its power to construe statutes to reach results it 
might have based on the equal protection clause if the cases had come 
from the States. E.g., Hurd v. Hodge, 334 U.S. 24 (1948); Steele v. 
Louisville & Nashville R.R., 323 U.S. 192 (1944); Railroad Trainmen v. 
Howard, 343 U.S. 768 (1952). See also Thiel v. Southern Pacific Co., 328 
U.S. 217 (1946).
---------------------------------------------------------------------------

        ``Although the Court has not assumed to define `liberty' with 
any great precision, that term is not confined to mere freedom from 
bodily restraint. Liberty under law extends to the full range of conduct 
which the individual is free to pursue, and it cannot be restricted 
except for a proper governmental objective. Segregation in public 
education is not reasonably related to any proper governmental objective 
and thus it imposes on Negro children of the District of Columbia a 
burden that constitutes an arbitrary deprivation of their liberty in 
violation of the Due Process Clause.

        ``In view of our decision that the Constitution prohibits the 
states from maintaining racially segregated public schools, it would be 
unthinkable that the same Constitution would impose a lesser duty on the 
Federal Government.''

        ``Equal protection analysis in the Fifth Amendment area,'' the 
Court has said, ``is the same as that under the Fourteenth 
Amendment.''\71\ So saying, the court has applied much of its Fourteenth 
Amendment jurisprudence to strike down sex classifications in federal 
legislation,\72\ reached classifications with an adverse impact upon 
illegitimates,\73\ and invalidated some welfare assistance pro

[[Page 1358]]
visions with some interesting exceptions.\74\ However, almost all 
legislation involves some degree of classification among particular 
categories of persons, things, or events, and, just as the equal 
protection clause itself does not outlaw ``reasonable'' classifications, 
neither is the due process clause any more intolerant of the great 
variety of social and economic legislation typically containing what 
must be arbitrary line-drawing.\75\ Thus, for example, the Court has 
sustained a law imposing greater punishment for an offense involving 
rights of property of the United States than for a like offense 
involving the rights of property of a private person.\76\ A veterans' 
law which extended certain educational benefits to all veterans who had 
served ``on active duty'' and thereby excluded conscientious objectors 
from eligibility was held to be sustainable, it being rational for 
Congress to have determined that the disruption caused by military 
service was qualitatively and quantitatively different from that caused 
by alternative service, and for Congress to have so provided to make 
military service more attractive.\77\

        \71\Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. 
Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).
        \72\Frontiero v. Richardson, 411 U.S. 677 (1973); Califano v. 
Goldfarb, 430 U.S. 199 (1977). But see Rostker v. Goldberg, 453 U.S. 57 
(1981); Califano v. Jobst, 434 U.S. 47 (1977).
        \73\Compare Jiminez v. Weinberger, 417 U.S. 628 (1974) with 
Mathews v. Lucas, 427 U.S. 495 (1976).
        \74\Department of Agriculture v. Murry, 413 U.S. 508 (1973). See 
also Department of Agriculture v. Moreno, 413 U.S. 528 (1973).
        \75\Richardson v. Belcher, 404 U.S. 78, 81 (1971); Lyng v. 
Castillo, 477 U.S. 635 (1986) (Food Stamp Act limitation of benefits to 
households of related persons who prepare meals together). With respect 
to courts and criminal legislation, see Hurtado v. United States, 410 
U.S. 578 (1973); Marshall v. United States, 414 U.S. 417 (1974); United 
States v. MacCollom, 426 U.S. 317 (1976).
        \76\Hill v. United States ex rel. Weiner, 300 U.S. 105, 109 
(1937). See also District of Columbia v. Brooke, 214 U.S. 138 (1909); 
Panama R.R. v. Johnson, 264 U.S. 375 (1924); Detroit Bank v. United 
States, 317 U.S. 329 (1943).
        \77\Johnson v. Robison, 415 U.S. 361 (1974). See also 
Schlesinger v. Ballard, 419 U.S. 498 (1975) (military law that 
classified men more adversely than women deemed rational because it had 
the effect of compensating for prior discrimination against women). 
Wayte v. United States, 470 U.S. 598 (1985) (selective prosecution of 
persons who turned themselves in or were reported by others as having 
failed to register for the draft does not deny equal protection, there 
being no showing that these men were selected for prosecution because of 
their protest activities).
---------------------------------------------------------------------------

        ``The federal sovereign, like the States, must govern 
impartially. . . . [B]ut . . . there may be overriding national 
interests which justify selective federal legislation that would be 
unacceptable for an individual State.''\78\ The paramount federal power 
over immigration and naturalization is the principal example, although

[[Page 1359]]
there are undoubtedly others, of the national government being able to 
classify upon some grounds--alienage, naturally, but also other suspect 
and quasi-suspect categories as well--that would result in invalidation 
were a state to enact them. The instances may be relatively few, but 
they do exist.

        \78\Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Thus, the 
power over immigration and aliens permitted federal discrimination on 
the basis of alienage, Hampton, supra (employment restrictions like 
those previously voided when imposed by States), durational residency, 
Mathews v. Diaz, 426 U.S. 67 (1976) (similar rules imposed by States 
previously voided), and illegitimacy, Fiallo v. Bell, 430 U.S. 787 
(1977) (similar rules by States would be voided). Racial preferences and 
discriminations in immigration have had a long history, e.g., The 
Chinese Exclusion Cases, 130 U.S. 581 (1889), and the power continues 
today, e.g., Dunn v. INS, 499 F.2d 856, 858 (9th Cir.), cert. denied, 
419 U.S. 1106 (1975); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 
1979), cert. denied, 446 U.S. 957 (1980), although Congress has removed 
most such classifications from the statute books.
---------------------------------------------------------------------------

        Congressional Police Measures.--Numerous regulations of a police 
nature, imposed under powers specifically granted to the Federal 
Government, have been sustained over objections based on the due process 
clause. Congress may require the owner of a vessel entering United 
States ports, and on which alien seamen are afflicted with specified 
diseases, to bear the expense of hospitalizing such persons.\79\ It may 
prohibit the transportation in interstate commerce of filled milk\80\ or 
the importation of convict-made goods into any State where their 
receipt, possession, or sale is a violation of local law.\81\ It may 
require employers to bargain collectively with representatives of their 
employees chosen in a manner prescribed by law, to reinstate employees 
discharged in violation of law, and to permit use of a company-owned 
hall for union meetings.\82\ Subject to First Amendment considerations, 
Congress may regulate the postal service to deny its facilities to 
persons who would use them for purposes contrary to public policy.\83\

        \79\United States v. New York S.S. Co., 269 U.S. 304 (1925).
        \80\United States v. Carolene Products Co., 304 U.S. 144 (1938); 
Carolene Products Co. v. United States, 323 U.S. 18 (1944).
        \81\Kentucky Whip & Collar Co. v. Illinois Cent. R.R., 299 U.S. 
334 (1937).
        \82\E.g., Virginian Ry. v. System Federation No. 40, 300 U.S. 
515 (1937); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); 
Railway Employees' Dep't v. Hanson, 351 U.S. 225 (1956); NLRB v. Stowe 
Spinning Co., 336 U.S. 226 (1949); NLRB v. Mackay Radio & Tel. Co., 304 
U.S. 333 (1938).
        \83\Ex parte Jackson, 96 U.S. 727 (1878); Rowan v. Post Office 
Dep't, 397 U.S. 728 (1970).
---------------------------------------------------------------------------

        Congressional Regulation of Public Utilities.--Inasmuch as 
Congress, in giving federal agencies jurisdiction over various public 
utilities, usually has prescribed standards substantially identical with 
those by which the Supreme Court has tested the validity of state 
action, the review of agency orders seldom has turned on constitutional 
issues. In two cases, however, maximum rates prescribed by the Secretary 
of Agriculture for stockyard companies were sustained only after 
detailed consideration of numerous items excluded from the rate base or 
from operating expenses, apparently on the assumption that error with 
respect to any such item would render the rates confiscatory and 
void.\84\ A few years later, in FPC v. Hope Gas Co.,\85\ the Court 
adopted an entirely dif

[[Page 1360]]
ferent approach. It took the position that the validity of the 
Commission's order depended upon whether the impact or total effect of 
the order is just and reasonable, rather than upon the method of 
computing the rate base. Rates which enable a company to operate 
successfully, to maintain its financial integrity, to attract capital, 
and to compensate its investors for the risks assumed cannot be 
condemned as unjust and unreasonable even though they might produce only 
a meager return in a rate base computed by the ``present fair value'' 
method.

        \84\St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 
(1936); Denver Union Stock Yards Co. v. United States, 304 U.S. 470 
(1938).
        \85\320 U.S. 591 (1944). The result of this case had been 
foreshadowed by the opinion of Justice Stone in FPC v. Natural Gas 
Pipeline Co., 315 U.S. 575, 586 (1942), to the effect that the 
Commission was not bound to the use of any single formula or combination 
of formulas in determining rates.
---------------------------------------------------------------------------

        Orders prescribing the form and contents of accounts kept by 
public utility companies,\86\ and statutes requiring a private carrier 
to furnish the Interstate Commerce Commission with information for 
valuing its property\87\ have been sustained against the objection that 
they were arbitrary and invalid. An order of the Secretary of Commerce 
directed to a single common carrier by water requiring it to file a 
summary of its books and records pertaining to its rates was also held 
not to violate the Fifth Amendment.\88\

        \86\A. T. & T. Co. v. United States, 299 U.S. 232 (1936); United 
States v. New York Tel. Co., 326 U.S. 638 (1946); Northwestern Co. v. 
FPC, 321 U.S. 119 (1944).
        \87\Valvoline Oil Co. v. United States, 308 U.S. 141 (1939); 
Champlin Rfg. Co. v. United States, 329 U.S. 29 (1946).
        \88\Isbrandtsen-Moller Co. v. United States, 300 U.S. 146 
(1937).
---------------------------------------------------------------------------

        Congressional Regulation of Railroads.--Legislation or 
administrative orders pertaining to railroads have been challenged 
repeatedly under the due process clause but seldom with success. Orders 
of the Interstate Commerce Commission establishing through routes and 
joint rates have been sustained,\89\ as has its division of joint rates 
to give a weaker group of carriers a greater share of such rates where 
the proportion allotted to the stronger group was adequate to avoid 
confiscation.\90\ The recapture of one half of the earnings of railroads 
in excess of a fair net operating income, such recaptured earnings to be 
available as a revolving fund for loans to weaker roads, was held valid 
on the ground that any carrier earning an excess held it as trustee.\91\ 
An order enjoining certain steam railroads from discriminating against 
an electric railroad by denying it reciprocal switching privileges did 
not violate the Fifth Amendment even through its practical effect was to 
admit the electric road to a part of the business being adequately 
handled by the steam roads.\92\ Similarly, the fact that a rule 
concerning the allot

[[Page 1361]]
ment of coal cars operated to restrict the use of private cars did not 
amount to a taking of property.\93\ Railroad companies were not denied 
due process of law by a statute forbidding them to transport in 
interstate commerce commodities which have been manufactured, mined or 
produced by them.\94\ An order approving a lease of one railroad by 
another, upon condition that displaced employees of the lessor should 
receive partial compensation for the loss suffered by reason of the 
lease\95\ is consonant with due process of law. A law prohibiting the 
issuance of free passes was held constitutional even as applied to 
abolish rights created by a prior agreement whereby the carrier bound 
itself to issue such passes annually for life, in settlement of a claim 
for personal injuries.\96\ A non-arbitrary Interstate Commerce 
Commission order establishing a non-compensatory rate for carriage of 
certain commodities does not violate the due process or just 
compensation clauses as long as the public interest thereby is served 
and the rates as a whole yield just compensation.\97\

        \89\St. Louis S.W. Ry. v. United States, 245 U.S. 136, 143 
(1917).
        \90\New England Divisions Case, 261 U.S. 184 (1923).
        \91\Dayton-Goose Creek Ry. v. United States, 263 U.S. 456, 481, 
483 (1924).
        \92\Chicago, I. & L. Ry. v. United States, 270 U.S. 287 (1926). 
Cf. Seaboard Air Line Ry. v. United States, 254 U.S. 57 (1920).
        \93\Assigned Car Cases, 274 U.S. 564, 575 (1927).
        \94\United States v. Delaware & Hudson Co., 213 U.S. 366, 405, 
411, 415 (1909).
        \95\United States v. Lowden, 308 U.S. 225 (1939).
        \96\Louisville & Nashville R.R. v. Mottley, 219 U.S. 467 (1911).
        \97\B. & O. R.R. v. United States, 345 U.S. 146 (1953).
---------------------------------------------------------------------------

        Occasionally, however, regulatory action has been held invalid 
under the due process clause. An order issued by the Interstate Commerce 
Commission relieving short line railroads from the obligation to pay the 
usual fixed sum per day rental for cars used on foreign roads for a 
space of two days was held to be arbitrary and invalid.\98\ A retirement 
act which made eligible for pensions all persons who had been in the 
service of any railroad within one year prior to the adoption of the 
law, counted past unconnected service of an employee toward the 
requirement for a pension without any contribution therefor, and treated 
all carriers as a single employer and pooled their assets, without 
regard to their individual obligations, was held unconstitutional.\99\

        \98\Chicago, R.I. & P. Ry. v. United States, 284 U.S. 80 (1931).
        \99\Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330 (1935). 
But cf. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 19 (1976).
---------------------------------------------------------------------------

        Taxation.--In laying taxes, the Federal Government is less 
narrowly restricted by the Fifth Amendment than are the States by the 
Fourteenth. The Federal Government may tax property belonging to its 
citizens, even if such property is never situated within the 
jurisdiction of the United States,\100\ and it may tax the income of a 
citizen resident abroad, which is derived from property located at his 
residence.\101\ The difference is explained by the fact that pro

[[Page 1362]]
tection of the Federal Government follows the citizen wherever he goes, 
whereas the benefits of state government accrue only to persons and 
property within the State's borders. The Supreme Court has said that, in 
the absence of an equal protection clause, ``a claim of unreasonable 
classification or inequality in the incidence or application of a tax 
raises no question under the Fifth Amendment. . . .''\102\ It has 
sustained, over charges of unfair differentiation between persons, a 
graduated income tax,\103\ a higher tax on oleomargarine than on 
butter,\104\ an excise tax on ``puts'' but not on ``call,''\105\ a tax 
on the income of business operated by corporations but not on similar 
enterprises carried on by individuals,\106\ an income tax on foreign 
corporations, based on their income from sources within the United 
States, while domestic corporations are taxed on income from all 
sources,\107\ a tax on foreign-built but not upon domestic yachts,\108\ 
a tax on employers of eight or more persons, with exemptions for 
agricultural labor and domestic service,\109\ a gift tax law embodying a 
plan of graduations and exemptions under which donors of the same amount 
might be liable for different sums,\110\ an Alaska statute imposing 
license taxes only on nonresident fisherman,\111\ an act which taxed the 
manufacture of oil and fertilizer from herring at a higher rate than 
similar processing of other fish or fish offal,\112\ an excess profits 
tax which defined ``invested capital'' with reference to the original 
cost of the property rather than to its present value,\113\ an 
undistributed profits tax in the computation of which special credits 
were allowed to certain taxpayers,\114\ an estate tax upon the estate of 
a deceased spouse in respect of the moiety of the surviving spouse where 
the effect of the dissolution of the community is to enhance the value 
of the survivor's moiety,\115\ and a tax on nonprofit mutual insurers 
although such insurers organized before a certain date were exempt inas

[[Page 1363]]
much as a continuing exemption for all insurers would have led to their 
multiplication to the detriment of other federal programs.\116\

        \100\United States v. Bennett, 232 U.S. 299, 307 (1914).
        \101\Cook v. Tait, 265 U.S. 47 (1924).
        \102\Helvering v. Lerner Stores Co., 314 U.S. 463, 468 (1941). 
But see supra, pp.1356-59.
        \103\Brushaber v. Union Pac. R.R., 240 U.S. 1, 24 (1916).
        \104\McCray v. United States, 195 U.S. 27, 61 (1904).
        \105\Treat v. White, 181 U.S. 264 (1901).
        \106\Flint v. Stone Tracy Co., 220 U.S. 107 (1911).
        \107\National Paper Co. v. Bowers, 266 U.S. 373 (1924).
        \108\Billings v. United States, 232 U.S. 261, 282 (1914).
        \109\Steward Machine Co. v. Davis, 301 U.S. 548 (1937); 
Helvering v. Davis, 301 U.S. 619 (1937).
        \110\Bromley v. McCaughn, 280 U.S. 124 (1929).
        \111\Haavik v. Alaska Packers' Ass'n, 263 U.S. 510 (1924).
        \112\Alaska Fish Co. v. Smith, 255 U.S. 44 (1921).
        \113\LaBelle Iron Works v. United States, 256 U.S. 377 (1921).
        \114\Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940).
        \115\Fernandez v. Wiener, 326 U.S. 340 (1945); cf. Coolidge v. 
Long, 282 U.S. 582 (1931).
        \116\United States v. Maryland Savings-Share Ins. Corp., 400 
U.S. 4 (1970).
---------------------------------------------------------------------------

        Retroactive Taxes.--It has been customary from the beginning for 
Congress to give some retroactive effect to its tax laws, usually making 
them effective from the beginning of the tax year or from the date of 
introduction of the bill that became the law.\117\ Application of an 
income tax statute to the entire calendar year in which enactment took 
place has never, barring some peculiar circumstance, been deemed to deny 
due process.\118\ ``Taxation is neither a penalty imposed on the 
taxpayer nor a liability which he assumes by contract. It is but a way 
of apportioning the cost of government among those who in some measure 
are privileged to enjoy its benefits and must bear its burdens. Since no 
citizen enjoys immunity from that burden, its retroactive imposition 
does not necessarily infringe due process, and to challenge the present 
tax it is not enough to point out that the taxable event, the receipt of 
income, antedated the statute.''\119\ A special income tax on profits 
realized by the sale of silver, retroactive for 35 days, which was 
approximately the period during which the silver purchase bill was 
before Congress, was held valid.\120\ An income tax law, made 
retroactive to the beginning of the calendar year in which it was 
adopted, was found constitutional as applied to the gain from the sale, 
shortly before its enactment, of property received as a gift during the 
year.\121\ Retroactive assessment of penalties for fraud or 
negligence,\122\ or of an additional tax on the income of a corporation 
used to avoid a surtax on its shareholder,\123\ does not deprive the 
taxpayer of property without due process of law.

        \117\United States v. Darusmont, 449 U.S. 292, 296-97 (1981).
        \118\Stockdale v. Insurance Companies, 87 U.S. (20 Wall.) 323, 
331, 332 (1874); Brushaber v. Union Pac. R.R., 240 U.S. 1, 20 (1916); 
Cooper v. United States, 280 U.S. 409, 411 (1930); Milliken v. United 
States, 283 U.S. 15, 21 (1931); Reinecke v. Smith, 289 U.S. 172, 175 
(1933); United States v. Hudson, 299 U.S. 498, 500-01 (1937); Welch v. 
Henry, 305 U.S. 134, 146, 148-50 (1938); Fernandez v. Wiener, 326 U.S. 
340, 355 (1945); United States v. Darusmont, 449 U.S. 292, 297 (1981).
        \119\Welch v. Henry, 305 U.S. 134, 146-47 (1938).
        \120\United States v. Hudson, 299 U.S. 498 (1937). See also 
Stockdale v. Insurance Companies, 87 U.S. (20 Wall.) 323, 331, 341 
(1874); Brushaber v. Union Pac. R.R., 240 U.S. 1, 20 (1916); Lynch v. 
Hornby, 247 U.S. 339, 343 (1918).
        \121\Cooper v. United States, 280 U.S. 409 (1930); see also 
Reinecke v. Smith, 289 U.S. 172 (1933).
        \122\Helvering v. Mitchell, 303 U.S. 391 (1938).
        \123\Helvering v. National Grocery Co., 304 U.S. 282 (1938).
---------------------------------------------------------------------------

        An additional excise tax imposed upon property still held for 
sale, after one excise tax had been paid by a previous owner, does not 
violate the due process clause.\124\ Similarly upheld were a transfer 
tax measured in part by the value of property held jointly

[[Page 1364]]
by a husband and wife, including that which comes to the joint tenancy 
as a gift from the decedent spouse\125\ and the inclusion in the gross 
income of the settlor of income accruing to a revocable trust during any 
period when the settlor had power to revoke or modify it.\126\

        \124\Patton v. Brady, 184 U.S. 608 (1902).
        \125\Tyler v. United States, 281 U.S. 497 (1930); United States 
v. Jacobs, 306 U.S. 363 (1939).
        \126\Reinecke v. Smith, 289 U.S. 172 (1933).
---------------------------------------------------------------------------

        However, the Court has treated differently gift taxes imposed 
retroactively upon gifts that were made and completely vested before the 
enactment of the taxing statute,\127\ at least in part on the basis that 
such imposition unfairly treats a taxpayer who could have altered his 
behavior to avoid the tax if it could have been anticipated by him at 
the time the transaction was effected. Also, a conclusive presumption 
that gifts made within two years of death were made in contemplation of 
death was condemned as arbitrary and capricious, even with respect to 
subsequent transfers.\128\

        \127\Untermyer v. Anderson, 276 U.S. 440 (1928); Blodgett v. 
Holden, 275 U.S. 142 (1927), modified, 276 U.S. 594 (1928); Nichols v. 
Coolidge, 274 U.S. 531 (1927). Untermyer was distinguished in United 
States v. Hemme, 476 U.S. 558 (1986), upholding retroactive application 
of unified estate and gift taxation to a taxpayer as to whom the overall 
impact was minimal and not oppressive.
        \128\Heiner v. Donnan, 285 U.S. 312 (1932).
---------------------------------------------------------------------------

        Deprivation of Property: Retroactive Legislation.--Federal 
regulation of future action, based upon rights previously acquired by 
the person regulated, is not prohibited by the Constitution. So long as 
the Constitution authorizes the subsequently enacted legislation, the 
fact that its provisions limit or interfere with previously acquired 
rights does not ordinarily condemn it. The imposition upon coal mine 
operators, and ultimately coal consumers, of the liability of 
compensating former employees, who had terminated work in the industry 
before passage of the law, for black lung disabilities contracted in the 
course of their work, was sustained by the Court as a rational measure 
to spread the costs of the employees' disabilities to those who had 
profited from the fruits of their labor.\129\ Legislation readjusting 
rights and burdens is not unlawful solely because it upsets otherwise 
settled expectations, but it must take account of the realities 
previously existing, i.e., that the danger may not have been known or 
appreciated, or that actions might have been taken in reliance upon the 
current state of the law; therefore, legislation imposing liability on 
the basis of deterrence or of blameworthiness might not have passed 
muster. The Court has applied Turner Elkhorn in upholding retroactive 
applica

[[Page 1365]]
tion of pension plan termination provisions to cover the period of 
congressional consideration, declaring that the test for retroactive 
application of legislation adjusting economic burdens is merely whether 
``the retroactive application . . . is itself justified by a rational 
legislative purpose.''\130\

        \129\Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14-20 
(1976). But see id. at 38 (Justice Powell concurring) (questioning 
application of retroactive cost-spreading).
        \130\Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 
717, 730 (1984). Accord, United States v. Sperry Corp., 493 U.S. 52, 65 
(1989) (upholding imposition of user fee on claimants paid by Iran-
United States Claims Tribunal prior to enactment of fee statute).
---------------------------------------------------------------------------

        Rent regulations were sustained as applied to prevent execution 
of a judgment of eviction rendered by a state court before the enabling 
legislation was passed.\131\ For the reason that ``those who do business 
in the regulated field cannot object if the legislative scheme is 
buttressed by subsequent amendments to achieve the legislative end,'' no 
vested right to use housing, built with the aid of FHA mortgage 
insurance for transient purposes, was acquired by one obtaining 
insurance under an earlier section of the National Housing Act, which, 
though silent in this regard, was contemporaneously construed as barring 
rental to transients, and was later modified by an amendment which 
expressly excluded such use.\132\ An order by an Area Rent Director 
reducing an unapproved rental and requiring the landlord to refund the 
excess previously collected, was held, with one dissenting vote, not to 
be the type of retroactivity which is condemned by law.\133\ The 
application of a statute providing for tobacco marketing quotas, to a 
crop planted prior to its enactment, was held not to deprive the 
producers of property without due process of law since it operated, not 
upon production, but upon the marketing of the product after the act was 
passed.\134\

        \131\Fleming v. Rhodes, 331 U.S. 100, 107 (1947).
        \132\FHA v. The Darlington, Inc., 358 U.S. 84, 89-91, 92-93 
(1958). Dissenting, Justices Harlan, Frankfurter, and Whittaker 
maintained that under the due process clause the United States, in its 
contractual relations, is bound by the same rules as private individuals 
unless the action taken falls within the general federal regulatory 
power.
        \133\Woods v. Stone, 333 U.S. 472 (1948).
        \134\Mulford v. Smith, 307 U.S. 38 (1939). An increase in the 
penalty for production of wheat in excess of quota was valid as applied 
retroactively to wheat already planted, where Congress concurrently 
authorized a substantial increase in the amount of the loan that might 
be made to cooperating farmers upon stored ``farm marketing excess 
wheat.'' Wickard v. Filburn, 317 U.S. 111 (1942).
---------------------------------------------------------------------------

        In the exercise of its comprehensive powers over revenue, 
finance, and currency, Congress may make Treasury notes legal tender in 
payment of debts previously contracted\135\ and may invalidate 
provisions in private contracts calling for payment in gold coin,\136\ 
but rights against the United States arising out of contract

[[Page 1366]]
are more strongly protected by the due process clause. Hence, a law 
purporting to abrogate a clause in government bonds calling for payment 
in gold coin was invalid,\137\ and a statute abrogating contracts of war 
risk insurance was held unconstitutional as applied to outstanding 
policies.\138\

        \135\Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 
551 (1871).
        \136\Norman v. Baltimore & Ohio R.R., 294 U.S. 240 (1935).
        \137\Perry v. United States, 294 U.S. 330 (1935).
        \138\Lynch v. United States, 292 U.S. 571 (1934). See also De La 
Rama S.S. Co. v. United States, 344 U.S. 386 (1953). Notice that these 
kinds of cases are precisely the ones that would be condemned under the 
contract clause, even under the relaxed scrutiny now employed, if the 
action were taken by a State. E.g., United States Trust Co. v. New 
Jersey, 431 U.S. 1 (1977). ``Less searching standards'' are imposed by 
the Due Process Clauses than by the Contract Clause. Pension Benefit 
Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984). Also, 
statutory reservation of the right to amend an agreement can defuse most 
such constitutional issues. Bowen v. Public Agencies Opposed to Social 
Security Entrapment, 477 U.S. 41 (1986) (amendment of Social Security 
Act to prevent termination by state when termination notice already 
filed).
---------------------------------------------------------------------------

        The due process clause has been successfully invoked to defeat 
retroactive invasion or destruction of property rights in a few cases. A 
revocation by the Secretary of the Interior of previous approval of 
plats and papers showing that a railroad was entitled to land under a 
grant was held void as an attempt to deprive the company of its property 
without due process of law.\139\ The exception of the period of federal 
control from the time limit set by law upon claims against carriers for 
damages caused by misrouting of goods, was read as prospective only 
because the limitation was an integral part of the liability, not merely 
a matter of remedy, and would violate the Fifth Amendment if 
retroactive.\140\

        \139\Noble v. Union River Logging R.R., 147 U.S. 165 (1893).
        \140\Danzer Co. v. Gulf R.R., 268 U.S. 633 (1925).
---------------------------------------------------------------------------

        Bankruptcy Legislation.--In acting pursuant to its power to 
enact uniform bankruptcy legislation, Congress has regularly authorized 
retrospective impairment of contractual obligations,\141\ but the due 
process clause (by itself or infused with takings principles) 
constitutes a limitation upon Congress' power to deprive persons of more 
secure forms of property, such as the rights secured creditors have to 
obtain repayment of a debt. The Court had long followed a rule of 
construction favoring prospective-only application of bankruptcy laws, 
absent a clear showing of congressional intent,\142\ but it was not 
until 1935 that the Court actually held unconstitutional a retrospective 
law. Struck down by the Court was the Frazier-Lemke Act, which by its 
terms applied only retrospectively, and which authorized a court to stay 
proceedings for the foreclosure of

[[Page 1367]]
a mortgage for five years, the debtor to remain in possession at a 
reasonable rental, with the option of purchasing the property at its 
appraised value at the end of the stay. The Act offended the Fifth 
Amendment, the Court held, because it deprived the creditor of 
substantial property rights acquired prior to the passage of the 
act.\143\ However, a modified law, under which the stay was subject to 
termination by the court and which continued the right of the creditor 
to have the property sold to pay the debt, was sustained.\144\

        \141\E.g., Hanover National Bank v. Moyses, 186 U.S. 181, 188 
(1902); Continental Illinois Nat'l Bank & Trust Co. v. Chicago, R.I. & 
P. Ry., 294 U.S. 648, 673-75 (1935).
        \142\Holt v. Henley, 232 U.S. 637, 639-40 (1914). See also 
Auffm'ordt v. Rasin, 102 U.S. 620, 622 (1881).
        \143\Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 
(1935).
        \144\Wright v. Vinton Branch, 300 U.S. 440 (1937). The 
relatively small modifications that the Court accepted as making the 
difference in validity, and the fact that subsequently the Court 
interpreted the statute so as to make smaller the modifications, John 
Hancock Mutual Life Ins. Co. v. Bartels, 308 U.S. 180, 184 & n.3 (1939); 
Wright v. Union Central Ins. Co., 311 U.S. 273, 278-79 (1940), has 
created differences of opinion with respect to whether Radford remains 
sound law. Cf. Helvering v. Griffiths, 318 U.S. 371, 400-01 & n.52 
(1943) (suggesting Radford might not have survived Vinton Branch).
---------------------------------------------------------------------------

        Without violation of the due process clause, the sale of 
collateral under the terms of a contract may be enjoined, if such sale 
would hinder the preparation or consummation of a proposed railroad 
reorganization, provided the injunction does no more than delay the 
enforcement of the contract.\145\ A provision that claims resulting from 
rejection of an unexpired lease should be treated as on a parity with 
provable debts, but limited to an amount equal to three years rent, was 
held not to amount to a taking of property without due process of law, 
since it provided a new and more certain remedy for a limited amount, in 
lieu of an existing remedy inefficient and uncertain in result.\146\ A 
right of redemption allowed by state law upon foreclosure of a mortgage 
was unavailing to defeat a plan for reorganization of a debtor 
corporation where the trial court found that the claims of junior 
lienholders had no value.\147\

        \145\Continental Illinois Nat'l Bank & Trust Co. v. Chicago, 
R.I. & P. Ry., 294 U.S. 648 (1935).
        \146\Kuchner v. Irving Trust Co., 299 U.S. 445 (1937).
        \147\In re 620 Church Street Corp., 299 U.S. 24 (1936). In the 
context of Congress' plan to save major railroad systems, see Regional 
Rail Reorganization Act Cases, 419 U.S. 102 (1974).
---------------------------------------------------------------------------

        Right to Sue the Government.--A right to sue the Government on a 
contract is a privilege, not a property right protected by the 
Constitution.\148\ The right to sue for recovery of taxes paid may be 
conditioned upon an appeal to the Commissioner and his refusal to 
refund.\149\ There was no denial of due process when Congress took away 
the right to sue for recovery of taxes, where the claim for recovery was 
without substantial equity, having arisen from the

[[Page 1368]]
mistake of administrative officials in allowing the statute of 
limitations to run before collecting a tax.\150\ The denial to taxpayers 
of the right to sue for refund of processing and floor stock taxes 
collected under a law subsequently held unconstitutional, and the 
substitution of a new administrative procedure for the recovery of such 
sums, was held valid.\151\ Congress may cut off the right to recover 
taxes illegally collected by ratifying the imposition and collection 
thereof, where it could lawfully have authorized such exactions prior to 
their collection.\152\

        \148\Lynch v. United States, 292 U.S. 571, 581 (1934).
        \149\Dodge v. Osborn, 240 U.S. 118 (1916).
        \150\Graham & Foster v. Goodcell, 282 U.S. 409 (1931).
        \151\Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937).
        \152\United States v. Heinszen & Co., 206 U.S. 370, 386 (1907).
---------------------------------------------------------------------------

        Congressional Power to Abolish Common Law Judicial Actions.--
Similarly, it is clearly settled that ``[a] person has no property, no 
vested interest, in any rule of the common law.''\153\ It follows, 
therefore, that Congress in its discretion may abolish common law 
actions, replacing them with other judicial actions or with 
administrative remedies at its discretion. There is slight intimation in 
some of the cases that if Congress does abolish a common law action it 
must either duplicate the recovery or provide a reasonable substitute 
remedy.\154\ Such a holding seems only remotely likely,\155\ but some 
difficulties may be experienced with respect to legislation that 
retrospectively affects rights to sue, such as shortening or lengthening 
statutes of limitation, and the like, although these have typically 
risen in state contexts. In one interesting decision, the Court did 
sustain an award of additional compensation under the Longshoremen's and 
Harbor Workers' Compensation Act, made pursuant to a private act of 
Congress passed after expiration of the period for review of the 
original award, directing the Commission to review the case and issue a 
new order, the challenge being made by the employer and insurer.\156\

        \153\Second Employers' Liability Cases, 223 U.S. 1, 50 (1912). 
See also Silver v. Silver, 280 U.S. 117, 122 (1929) (a state case).
        \154\The intimation stems from New York Central R.R. v. White, 
243 U.S. 188 (1917) (a state case, involving the constitutionality of a 
workmen's compensation law). While denying any person's vested interest 
in the continuation of any particular right to sue, id. at 198, the 
Court did seem twice to suggest that abolition without a reasonable 
substitute would raise due process problems. Id. at 201. In Duke Power 
Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 87-92 (1978), it 
noticed the contention but passed it by because the law at issue was a 
reasonable substitute.
        \155\It is more likely with respect to congressional provision 
of a statutory substitute for a cause of action arising directly out of 
a constitutional guarantee. E.g., Carlson v. Green, 446 U.S. 14, 18-23 
(1980).
        \156\Paramino Co. v. Marshall, 309 U.S. 370 (1940).
---------------------------------------------------------------------------

        Deprivation of Liberty: Economic Legislation.--The proscription 
of deprivation of liberty without due process, insofar as substantive 
due process was involved, was long restricted to invoca

[[Page 1369]]
tion against legislation deemed to abridge liberty of contract.\157\ The 
two leading cases invalidating federal legislation, however, have both 
been overruled, as the Court adopted a very restrained standard of 
review of economic legislation.\158\ The Court's ``hands-off'' policy 
with regard to reviewing economic legislation is quite pronounced.\159\

        \157\See ``liberty of contract'' heading under Fourteenth 
Amendment, infra.
        \158\Adair v. United States, 208 U.S. 161 (1908), overruled in 
substance by Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941); Adkins v. 
Children's Hospital, 261 U.S. 525 (1923), overruled by West Coast Hotel 
Co. v. Parrish, 300 U.S. 379 (1937).
        \159\E.g., United States Railroad Retirement Board v. Fritz, 449 
U.S. 166 (1981); Schweiker v. Wilson, 450 U.S. 221 (1981).
---------------------------------------------------------------------------


                             FIFTH AMENDMENT

                            RIGHTS OF PERSONS

                      NATIONAL EMINENT DOMAIN POWER

      Overview

        ``The Fifth Amendment to the Constitution says `nor shall 
private property be taken for public use, without just compensation.' 
This is a tacit recognition of a preexisting power to take private 
property for public use, rather than a grant of new power.''\160\ 
Eminent domain ``appertains to every independent government. It requires 
no constitutional recognition; it is an attribute of sovereignty.''\161\ 
In the early years of the nation the federal power of eminent domain lay 
dormant,\162\ and it was not until 1876 that its existence was 
recognized by the Supreme Court. In Kohl v. United States\163\ any 
doubts were laid to rest, as the Court affirmed that the power was as 
necessary to the existence of the National Government as it was to the 
existence of any State. The federal power of eminent domain is, of 
course, limited by the grants of power in the Constitution, so that 
property may only be taken for the effectuation of a granted power,\164\ 
but once this is conceded the ambit of national powers is so wide-
ranging that vast numbers of objects

[[Page 1370]]
may be effected.\165\ This prerogative of the National Government can 
neither be enlarged nor diminished by a State.\166\ Whenever lands in a 
State are needed for a public purpose, Congress may authorize that they 
be taken, either by proceedings in the courts of the State, with its 
consent, or by proceedings in the courts of the United States, with or 
without any consent or concurrent act of the State.\167\

        \160\United States v. Carmack, 329 U.S. 230, 241-42 (1946). The 
same is true of ``just compensation'' clauses in state constitutions. 
Boom Co. v. Patterson, 98 U.S. 403, 406 (1879). For in-depth analysis of 
the eminent domain power, see 1 Nichols' The Law of Eminent Domain (J. 
Sackman, 3d rev. ed. 1973); and R. Meltz, When the United States Takes 
Property: Legal Principles, Congressional Research Service Report 91-339 
A (1991) (revised periodically).
        \161\Boom Co. v. Patterson, 98 U.S. 403, 406 (1879).
        \162\Prior to this time, the Federal Government pursued 
condemnation proceedings in state courts and commonly relied on state 
law. Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. 
Jones, 109 U.S. 513 (1883). The first general statutory authority for 
proceedings in federal courts was not enacted until 1888. Act of Aug. 1, 
1888, ch. 728, 25 Stat. 357. See 1 Nichols' The Law of Eminent Domain 
Sec. 1.24 (J. Sackman, 3d rev. ed. 1973).
        \163\91 U.S. 367 (1876).
        \164\United States v. Gettysburg Electric Ry., 160 U.S. 668, 679 
(1896).
        \165\E.g., California v. Central Pacific Railroad, 127 U.S. 1, 
39 (1888) (highways); Luxton v. North River Bridge Co., 153 U.S. 525 
(1894) (interstate bridges); Cherokee Nation v. Southern Kansas Ry., 135 
U.S. 641 (1890) (railroads); Albert Hanson Lumber Co. v. United States 
261 U.S. 581 (1923) (canal); Ashwander v. TVA, 297 U.S. 288 (1936) 
(hydroelectric power). ``Once the object is within the authority of 
Congress, the right to realize it through the exercise of eminent domain 
is clear. For the power of eminent domain is merely the means to the 
end.'' Berman v. Parker, 348 U.S. 26, 33 (1954).
        \166\Kohl v. United States, 91 U.S. 367 374 (1876).
        \167\Chappell v. United States, 160 U.S. 499, 510 (1896). The 
fact that land included in a federal reservoir project is owned by a 
state, or that its taking may impair the state's tax revenue, or that 
the reservoir will obliterate part of the state's boundary and interfere 
with the state's own project for water development and conservation, 
constitutes no barrier to the condemnation of the land by the United 
States. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 
(1941). So too, land held in trust and used by a city for public 
purposes may be condemned. United States v. Carmack, 329 U.S. 230 
(1946).
---------------------------------------------------------------------------

        ``Prior to the adoption of the Fourteenth Amendment,'' the power 
of eminent domain of state governments ``was unrestrained by any federal 
authority.''\168\ The just compensation provision of the Fifth Amendment 
did not apply to the States,\169\ and at first the contention that the 
due process clause of the Fourteenth Amendment afforded property owners 
the same measure of protection against the States as the Fifth Amendment 
did against the Federal Government was rejected.\170\ However, within a 
decade the Court rejected the opposing argument that the amount of 
compensation to be awarded in a state eminent domain case is solely a 
matter of local law. On the contrary, the Court ruled, although a state 
``legislature may prescribe a form of procedure to be observed in the 
taking of private property for public use, . . . it is not due process 
of law if provision be not made for compensation. . . . The mere form of 
the proceeding instituted against the owner . . . cannot convert the 
process used into due process of law, if the necessary result be to 
deprive him of his property without compensation.''\171\ While the 
guarantees of just compensation flow from two

[[Page 1371]]
different sources, the standards used by the Court in dealing with the 
issues appear to be identical, and both federal and state cases will be 
dealt with herein without expressly continuing to recognize the two 
different bases for the rulings.

        \168\Green v. Frazier, 253 U.S. 233, 238 (1920).
        \169\Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).
        \170\Davidson v. City of New Orleans, 96 U.S. 97 (1878). The 
Court attached most weight to the fact that both due process and just 
compensation were guaranteed in the Fifth Amendment while only due 
process was contained in the Fourteenth, and refused to equate the 
missing term with the present one.
        \171\Chicago B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 233, 
236-37 (1897). See also Sweet v. Rechel, 159 U.S. 380, 398 (1895).
---------------------------------------------------------------------------

        It should be borne in mind that while the power of eminent 
domain, though it is inherent in organized governments, may only be 
exercised through legislation or through legislative delegation, usually 
to another governmental body, the power may be delegated as well to 
private corporations, such as public utilities, railroad and bridge 
companies, when they are promoting a valid public purpose. Such 
delegation has long been approved.\172\

        \172\Noble v. Oklahoma City, 297 U.S. 481 (1936); Luxton v. 
North River Bridge Co., 153 U.S. 525 (1895). One of the earliest 
examples is Curtiss v. Georgetown & Alexandria Turnpike Co., 10 U.S. (6 
Cr.) 233 (1810).
---------------------------------------------------------------------------
      Public Use

        Explicit in the just compensation clause is the requirement that 
the taking of private property be for a public use; the Court has long 
accepted the principle that one is deprived of his property in violation 
of this guarantee if a State takes the property for any reason other 
than a public use.\173\ The question whether a particular intended use 
is a public use is clearly a judicial one,\174\ but the Court has always 
insisted on a high degree of judicial deference to the legislative 
determination. ``The role of the judiciary in determining whether that 
power is being exercised for a public purpose is an extremely narrow 
one.''\175\ When it is state action being challenged under the 
Fourteenth Amendment, there is the additional factor of the Court's 
willingness to defer to the highest court of the State in resolving such 
an issue.\176\ As early as 1908, the Court was obligated to admit that 
notwithstanding its retention of the power of judicial review, ``no case 
is recalled where this Court has condemned as a violation of the 
Fourteenth Amendment a taking upheld by the State court as a taking for 
public uses. . . .''\177\ How

[[Page 1372]]
ever, in a 1946 case involving federal eminent domain power, the Court 
cast considerable doubt upon the power of courts to review the issue of 
public use. ``We think that it is the function of Congress to decide 
what type of taking is for a public use and that the agency authorized 
to do the taking may do so to the full extent of its statutory 
authority.''\178\ There is some suggestion that ``the scope of the 
judicial power to determine what is a `public use''' may be different as 
between Fifth and Fourteenth Amendment cases, with greater power in the 
latter type of cases than in the former,\179\ but it may well be that 
the case simply stands for the necessity for great judicial 
restraint.\180\ Once it is admitted or determined that the taking is for 
a public use and is within the granted authority, the necessity or 
expediency of the particular taking is exclusively in the legislature or 
the body to which the legislature has delegated the decision, and is not 
subject to judicial review.\181\

        \173\Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158-59 
(1896); Cole v. La Grange, 113 U.S. 1, 6 (1885).
        \174\``It is well established that in considering the 
application of the Fourteenth Amendment to cases of expropriation of 
private property, the question what is a public use is a judicial one.'' 
City of Cincinnati v. Vester, 281 U.S. 439, 444 (1930).
        \175\Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent 
domain power in District of Columbia).
        \176\Green v. Frazier, 253 U.S. 283, 240 (1920); City of 
Cincinnati v. Vester, 281 U.S. 439, 446 (1930). And see Hawaii Housing 
Auth. v. Midkiff, 467 U.S. 229 (1984) (appeals court erred in applying 
more stringent standard to action of state legislature).
        \177\Hairston v. Danville & Western Ry., 208 U.S. 598, 607 
(1908). An act of condemnation was voided as not for a public use in 
Missouri Pacific Ry. v. Nebraska, 164 U.S. 403 (1896), but the Court 
read the state court opinion as acknowledging this fact, thus not 
bringing it within the literal content of this statement.
        \178\United States ex rel. TVA v. Welch, 327 U.S. 546, 551-52 
(1946). Justices Reed and Frankfurter and Chief Justice Stone disagreed 
with this view. Id. at 555, 557 (concurring).
        \179\Id. at 552.
        \180\Id. So it seems to have been considered in Berman v. 
Parker, 348 U.S. 26, 32 (1954).
        \181\Rindge Co. v. Los Angeles County, 262 U.S. 700, 709 (1923); 
Bragg v. Weaver, 251 U.S. 57, 58 (1919); Berman v. Parker, 358 U.S. 26, 
33 (1954). ``When the legislature's purpose is legitimate and its means 
are not irrational, our cases make clear that empirical debates over the 
wisdom of takings . . . are not to be carried out in federal courts. 
Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 242-43 (1984).
---------------------------------------------------------------------------

        At an earlier time, the factor of judicial review would have 
been vastly more important than it is now, inasmuch as the prevailing 
judicial view was that the term ``public use'' was synonymous with ``use 
by the public'' and that if there was no duty upon the taker to permit 
the public as of right to use or enjoy the property taken, the taking 
was invalid. But this view was rejected some time ago.\182\ The modern 
conception of public use equates it with the police power in the 
furtherance of the public interest. No definition of the reach or limits 
of the power is possible, the Court has said, because such ``definition 
is essentially the product of legislative determinations addressed to 
the purposes of government, purposes neither abstractly nor historically 
capable of complete definition. . . . Public safety, public health, 
morality, peace and quiet, law and order--these are some of the . . . 
traditional application[s] of the police power. . . .'' Effectuation of 
these matters being within the authority of the legislature, the power 
to achieve them through the exercise of eminent domain is established. 
``For the power of

[[Page 1373]]
eminent domain is merely the means to the end.''\183\ Traditionally, 
eminent domain has been utilized to facilitate transportation, the 
supplying of water, and the like,\184\ but the use of the power to 
establish public parks, to preserve places of historic interest, and to 
promote beautification has substantial precedent.\185\

        \182\Clark v. Nash, 198 U.S. 361 (1905); Mt. Vernon-Woodberry 
Cotton Duck Co., v. Alabama Interstate Power Co., 240 U.S. 30, 32 
(1916).
        \183\Berman v. Parker, 348 U.S. 26, 32, 33 (1954).
        \184\E.g., Kohl v. United States, 91 U.S. 367 (1876) (public 
buildings); Chicago M. & S.P. Ry. v. City of Minneapolis, 232 U.S. 430 
(1914) (canal): Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 
(1897) (condemnation of privately owned water supply system formerly 
furnishing water to municipality under contract); Mt. Vernon-Woodberry 
Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 (1916) 
(land, water, and water rights condemned for production of electric 
power by public utility); Dohany v. Rogers, 281 U.S. 362 (1930) (land 
taken for purpose of exchange with a railroad company for a portion of 
its right-of-way required for widening a highway); Delaware, L. & W.R.R. 
v. Morristown, 276 U.S. 182 (1928) (establishment by a municipality of a 
public hack stand upon driveway maintained by railroad upon its own 
terminal grounds to afford ingress and egress to its patrons); Clark v. 
Nash, 198 U.S. 361 (1905) (right-of-way across neighbor's land to 
enlarge irrigation ditch for water without which land would remain 
valueless); Strickley v. Highland Boy Mining Co., 200 U.S. 527 (1906) 
(right of way across a placer mining claim for aerial bucket line). In 
Missouri Pacific Ry. v. Nebraska, 164 U.S. 403 (1896), however, the 
Court held that it was an invalid use when a State attempted to compel, 
on payment of compensation, a railroad, which had permitted the erection 
of two grain elevators by private citizens on its right-of-way, to grant 
upon like terms a location to another group of farmers to erect a third 
grain elevator for their own benefit.
        \185\E.g., Shoemaker v. United States, 147 U.S. 282 (1893) 
(establishment of public park in District of Columbia); Rindge Co. v. 
Los Angeles County, 262 U.S. 700 (1923) (scenic highway); Brown v. 
United States, 263 U.S. 78 (1923) (condemnation of property near town 
flooded by establishment of reservoir in order to locate a new townsite, 
even though there might be some surplus lots to be sold); United States 
v. Gettysburg Electric Ry., 160 U.S. 668 (1896), and Roe v. Kansas ex 
rel. Smith, 278 U.S. 191 (1929) (historic sites). When time is deemed to 
be of the essence, Congress takes land directly by statute, authorizing 
procedures by which owners of appropriated land may obtain just 
compensation. See, e.g., Pub. L. No. 90-545, Sec. 3, 82 Stat. 931 
(1968), 16 U.S.C. Sec. 79(c) (taking land for creation of Redwood 
National Park); Pub. L. No. 93-444, 88 Stat. 1304 (1974) (taking lands 
for addition to Piscataway Park, Maryland); Pub. L. No. 100-647, 
Sec. 10002 (1988) (taking lands for addition to Mannassas National 
Battlefield Park).
---------------------------------------------------------------------------

        The Supreme Court has approved generally the widespread use of 
the power of eminent domain by federal and state governments in 
conjunction with private companies to facilitate urban renewal, 
destruction of slums, erection of low-cost housing in place of 
deteriorated housing, and the promotion of aesthetic values as well as 
economic ones. In Berman v. Parker,\186\ a unanimous Court ob

[[Page 1374]]
served: ``The concept of the public welfare is broad and inclusive. The 
values it represents are spiritual as well as physical, aesthetic as 
well as monetary. It is within the power of the legislature to determine 
that the community should be beautiful as well as healthy, spacious as 
well as clean, well-balanced as well as carefully patrolled.'' For 
``public use,'' then, it may well be that ``public interest'' or 
``public welfare'' is the more correct phrase. Berman was applied in 
Hawaii Housing Auth. v. Midkiff,\187\ upholding the Hawaii Land Reform 
Act as a ``rational'' effort to ``correct deficiencies in the market 
determined by the state legislature to be attributable to land 
oligopoly.'' Direct transfer of land from lessors to lessees was 
permissible, the Court held, there being no requirement ``that 
government possess and use property at some point during a 
taking.''\188\ ``The `public use' requirement is . . . coterminous with 
the scope of a sovereign's police powers,'' the Court concluded.\189\

        \186\348 U.S. 26, 32-33 (1954) (citations omitted). Rejecting 
the argument that the project was illegal because it involved the 
turning over of condemned property to private associations for 
redevelopment, the Court said: ``Once the object is within the authority 
of Congress, the means by which it will be attained is also for Congress 
to determine. Here one of the means chosen is the use of private 
enterprise for redevelopment of the area. Appellants argue that this 
makes the project a taking from one businessman for the benefit of 
another businessman. But the means of executing the project are for 
Congress and Congress alone to determine, once the public purpose has 
been established. The public end may be as well or better served through 
an agency of private enterprise than through a department of 
government--or so the Congress might conclude.'' Id. at 33-34 (citations 
omitted).
        \187\467 U.S. 229, 243 (1984).
        \188\467 U.S. at 243.
        \189\467 U.S. at 240. See also Ruckelshaus v. Monsanto Co., 467 
U.S. 986, 1014 (1984) (required data disclosure by pesticide 
registrants, primarily for benefit of later registrants, has a 
``conceivable public character'').
---------------------------------------------------------------------------
      Just Compensation

        ``When . . . [the] power [of eminent domain] is exercised it can 
only be done by giving the party whose property is taken or whose use 
and enjoyment of such property is interfered with, full and adequate 
compensation, not excessive or exorbitant, but just compensation.''\190\ 
The Fifth Amendment's guarantee ``that private property shall not be 
taken for a public use without just compensation was designed to bar 
Government from forcing some people alone to bear public burdens which, 
in all fairness and justice, should be borne by the public as a 
whole.''\191\

        \190\Backus v. Fort Street Union Depot Co., 169 U.S. 557, 573, 
575 (1898).
        \191\Armstrong v. United States, 364 U.S. 40, 49 (1960). ``The 
political ethics reflected in the Fifth Amendment reject confiscation as 
a measure of justice.'' United States v. Cors, 337 U.S. 325, 332 (1949). 
There is no constitutional prohibition against confiscation of enemy 
property, but aliens not so denominated are entitled to the protection 
of this clause. Compare United States v. Chemical Foundation, 272 U.S. 1 
(1926) and Stoehr v. Wallace, 255 U.S. 239 (1921), with Silesian-
American Corp. v. Clark, 332 U.S. 469 (1947), Russian Fleet v. United 
States, 282 U.S. 481 (1931), and Guessefeldt v. McGrath, 342 U.S. 308 
(1952).
---------------------------------------------------------------------------

        The just compensation required by the Constitution is that which 
constitutes ``a full and perfect equivalent for the property 
taken.''\192\ Originally the Court required that the equivalent be in

[[Page 1375]]
money, not in kind,\193\ but more recently has cast some doubt on this 
assertion.\194\ Just compensation is measured ``by reference to the uses 
for which the property is suitable, having regard to the existing 
business and wants of the community, or such as may be reasonably 
expected in the immediate future,'. . . [but] `mere possible or 
imaginary uses or the speculative schemes of its proprietor, are to be 
excluded.'''\195\ The general standard thus is the market value of the 
property, i.e., what a willing buyer would pay a willing seller.\196\ If 
fair market value does not exist or cannot be calculated, resort must be 
had to other data which will yield a fair compensation.\197\ However, 
the Court is resistent to alternative standards, having repudiated 
reliance on the cost of substitute facilities.\198\ Just compensation is 
especially difficult to compute in wartime, when enormous disruptions in 
supply and governmentally imposed price ceilings totally skew market 
conditions. Holding that the reasons which underlie the rule of market 
value when a free market exists apply as well where value is measured by 
a government-fixed ceiling price, the Court permitted owners of cured 
pork and black pepper to recover only the ceiling price for the 
commodities, despite findings by the Court of Claims that the 
replacement cost of the meat exceeded its ceiling price and that the 
pepper had a ``retention value'' in excess of that price.\199\ By a 
five-to-four decision, the Court ruled that the Government was not 
obliged to pay

[[Page 1376]]
the present market value of a tug when the value had been greatly 
enhanced as a consequence of the Government's wartime needs.\200\

        \192\Monongahela Navigation Co. v. United States, 148 U.S. 312, 
326 (1893). The owner's loss, not the taker's gain, is the measure of 
such compensation. United States ex rel. TVA v. Powelson, 319 U.S. 266, 
281 (1943); United States v. Miller, 317 U.S. 369, 375 1943); Roberts v. 
New York City, 295 U.S. 264 (1935). The value of the property to the 
government for its particular use is not a criterion. United States v. 
Chandler-Dunbar Co., 229 U.S. 53 (1913); United States v. Twin City 
Power Co., 350 U.S. 222 (1956). Attorneys' fees and expenses are not 
embraced in the concept. Dohany v. Rogers, 281 U.S. 362 (1930).
        \193\Van Horne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 315 
(C.C. Pa. 1795); United States v. Miller, 317 U.S. 369, 373 (1943).
        \194\Regional Rail Reorganization Act Cases, 419 U.S. 102, 150-
51 (1974).
        \195\Chicago B. & Q. R.R. v. Chicago, 166 U.S. 226, 250 (1897); 
McGovern v. City of New York, 229 U.S. 363, 372 (1913). See also Boom 
Co. v. Patterson, 98 U.S. 403 (1879); McCandless v. United States, 298 
U.S. 342 (1936).
        \196\United States v. Miller, 317 U.S. 369, 374 (1943); United 
States ex rel. TVA v. Powelson, 319 U.S. 266, 275 (1943). See also 
United States v. New River Collieries Co., 262 U.S. 341 (1923); Olson v. 
United States, 292 U.S. 264 (1934); Kimball Laundry Co. v. United 
States, 338 U.S. 1 (1949). Exclusion of the value of improvements made 
by the Government under a lease was held constitutional. Old Dominion 
Land Co. v. United States, 269 U.S. 55 (1925).
        \197\United States v. Miller, 317 U.S. 369, 374 (1943).
        \198\United States v. 564.54 Acres of Land, 441 U.S. 506 (1979) 
(condemnation of church-run camp; United States v. 50 Acres of Land, 469 
U.S. 24 (1984) (condemnation of city-owned landfill). In both cases the 
Court determined that market value was ascertainable.
        \199\United States v. Felin & Co., 334 U.S. 624 (1948); United 
States v. Commodities Trading Corp., 339 U.S. 121 (1950). And see 
Vogelstein & Co. v. United States, 262 U.S. 337 (1923).
        \200\United States v. Cors, 337 U.S. 325 (1949). And see United 
States v. Toronto Navigation Co., 338 U.S. 396 (1949).
---------------------------------------------------------------------------

        Illustrative of the difficulties in applying the fair market 
standard of just compensation are two cases decided by five-to-four 
votes, one in which compensation was awarded and one in which it was 
denied. Held entitled to compensation for the value of improvements on 
leased property for the life of the improvements and not simply for the 
remainder of the term of the lease was a company that, while its lease 
had no renewal option, had occupied the land for nearly 50 years and had 
every expectancy of continued occupancy under a new lease. Just 
compensation, the Court said, required taking into account the 
possibility that the lease would be renewed, inasmuch as a willing buyer 
and a willing seller would certainly have placed a value on the 
possibility.\201\ However, when the Federal Government condemned 
privately owned grazing land of a rancher who had leased adjacent 
federally owned grazing land, it was held that the compensation owed 
need not include the value attributable to the proximity to the federal 
land. The result would have been different if the adjacent grazing land 
had been privately owned, but the general rule is that government need 
not pay for value that it itself creates.\202\

        \201\Almota Farmers Elevator & Warehouse Co. v. United States, 
409 U.S. 470 (1973). The dissent argued that since upon expiration of 
the lease only salvage value of the improvements could be claimed by the 
lessee, just compensation should be limited to that salvage value. Id. 
at 480.
        \202\United States v. Fuller, 409 U.S. 488 (1973). The dissent 
argued that the principle denying compensation for governmentally 
created value should apply only when the Government was in fact acting 
in the use of its own property; here the Government was acting only as a 
condemnor. Id. at 494.
---------------------------------------------------------------------------

        Interest.--Ordinarily, property is taken under a condemnation 
suit upon the payment of the money award by the condemner, and no 
interest accrues.\203\ If, however, the property is taken in fact before 
payment is made, just compensation includes an increment which, to avoid 
use of the term ``interest,'' the Court has called ``an amount 
sufficient to produce the full equivalent of that value paid 
contemporaneously with the taking.''\204\ If the owner and the 
Government enter into a contract which stipulates the purchase price for 
lands to be taken, with no provision for interest, the Fifth

[[Page 1377]]
Amendment is inapplicable and the landowner cannot recover interest even 
though payment of the purchase price is delayed.\205\ Where property of 
a citizen has been mistakenly seized by the Government and it is 
converted into money which is invested, the owner is entitled in 
recovering compensation to an allowance for the use of his 
property.\206\

        \203\Danforth v. United States, 308 U.S. 271, 284 (1939); Kirby 
Forest Industries v. United States, 467 U.S. 1 (1984) (no interest due 
in straight condemnation action for period between filing of notice of 
lis pendens and date of taking).
        \204\United States v. Klamath Indians, 304 U.S. 119, 123 (1938); 
Jacobs v. United States, 290 U.S. 13, 17 (1933); Kirby Forest Industries 
v. United States, 467 U.S. 1 (1984) (substantial delay between valuation 
and payment necessitates procedure for modifying award to reflect value 
at time of payment).
        \205\Albrecht v. United States, 329 U.S. 599 (1947).
        \206\Henkels v. Sutherland, 271 U.S. 298 (1926); see also Phelps 
v. United States, 274 U.S. 341 (1927).
---------------------------------------------------------------------------

        Rights for Which Compensation Must Be Made.--If real property is 
condemned the market value of that property must be paid to the owner. 
But there are many kinds of property and many uses of property which 
cause problems in computing just compensation. It is not only the full 
fee simple interest in land that is compensable ``property,'' but also 
such lesser interests as easements\207\ and leaseholds.\208\ If only a 
portion of a tract is taken, the owner's compensation includes any 
element of value arising out of the relation of the part taken to the 
entire tract.\209\ On the other hand, if the taking has in fact 
benefited the owner, the benefit may be set off against the value of the 
land condemned,\210\ although any supposed benefit which the owner may 
receive in common with all from the public use to which the property is 
appropriated may not be set off.\211\ When certain lands were condemned 
for park purposes, with resulting benefits set off against the value of 
the property taken, the subsequent erection of a fire station on the 
property instead was held not to have deprived the owner of any part of 
his just compensation.\212\

        \207\United States v. Welch, 217 U.S. 333 (1910).
        \208\United States v. General Motors, 323 U.S. 373 (1945).
        \209\Bauman v. Ross, 167 U.S. 548 (1897); Sharp v. United 
States, 191 U.S. 341, 351-52, 354 (1903). Where the taking of a strip of 
land across a farm closed a private right-of-way, an allowance was 
properly made for the value of the easement. United States v. Welch, 217 
U.S. 333 (1910).
        \210\Bauman v. Ross, 167 U.S. 548 (1897).
        \211\Monongahela Navigation Co. v. United States, 148 U.S. 312, 
326 (1893).
        \212\Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).
---------------------------------------------------------------------------

        Interests in intangible as well as tangible property are subject 
to protection under the Taking Clause. Thus compensation must be paid 
for the taking of contract rights,\213\ patent rights,\214\ and trade 
secrets.\215\ So too, the franchise of a private corporation is property 
which cannot be taken for public use without compensation. Upon 
condemnation of a lock and dam belonging to a navigation company, the 
Government was required to pay for the fran

[[Page 1378]]
chise to take tolls as well as for the tangible property.\216\ The 
frustration of a private contract by the requisitioning of the entire 
output of a steel manufacturer is not a taking for which compensation is 
required,\217\ but government requisitioning from a power company of all 
the electric power which could be produced by use of the water diverted 
through its intake canal, thereby cutting off the supply of a lessee 
which had a right, amounting to a corporeal hereditament under state 
law, to draw a portion of that water, entitles the lessee to 
compensation for the rights taken.\218\ When, upon default of a ship-
builder, the Government, pursuant to contract with him, took title to 
uncompleted boats, the material men, whose liens under state laws had 
attached when they supplied the shipbuilder, had a compensable interest 
equal to whatever value these liens had when the Government ``took'' or 
destroyed them in perfecting its title.\219\ As a general matter, there 
is no property interest in the continuation of a rule of law.\220\ And, 
even though state participation in the social security system was 
originally voluntary, a state had no property interest in its right to 
withdraw from the program when Congress had expressly reserved the right 
to amend the law and the agreement with the state.\221\ Similarly, there 
is no right to the continuation of governmental welfare benefits.\222\

        \213\Lynch v. United States, 292 U.S. 571, 579 (1934); Omnia 
Commercial Corp. v. United States, 261 U.S. 502, 508 (1923).
        \214\James v. Campbell, 104 U.S. 356, 358 (1882). See also 
Hollister v. Benedict Mfg. Co., 113 U.S. 59, 67 (1885).
        \215\Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).
        \216\Monongahela Navigation Co. v. United States, 148 U.S. 312, 
345 (1983).
        \217\Omnia Commercial Co. v. United States, 261 U.S. 502 (1923).
        \218\International Paper Co. v. United States, 282 U.S. 399 
(1931).
        \219\Armstrong v. United States, 364 U.S. 40, 50 (1960).
        \220\Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 
88 n.32 (1978).
        \221\Bowen v. Public Agencies Opposed to Social Security 
Entrapment, 477 U.S. 41 (1986).
        \222\``Congress is not, by virtue of having instituted a social 
welfare program, bound to continue it at all, much less at the same 
benefit level.'' Bowen v. Gilliard, 483 U.S. 587, 604 (1987).
---------------------------------------------------------------------------

        Consequential Damages.--The Fifth Amendment requires 
compensation for the taking of ``property,'' hence does not require 
payment for losses or expenses incurred by property owners or tenants 
incidental to or as a consequence of the taking of real property, if 
they are not reflected in the market value of the property taken.\223\ 
``Whatever of property the citizen has the Government may take. When it 
takes the property, that is, the fee, the lease, whatever, he may own, 
terminating altogether his interest, under the established law it must 
pay him for what is taken, not more; and he must stand whatever indirect 
or remote injuries are properly comprehended within the meaning of 
`consequential damage'

[[Page 1379]]
as that conception has been defined in such cases. Even so the 
consequences often are harsh. For these whatever remedy may exist lies 
with Congress.''\224\ An exception to the general principle has been 
established by the Court where only a temporary occupancy is assumed; 
then the taking body must pay the value which a hypothetical long-term 
tenant in possession would require when leasing to a temporary occupier 
requiring his removal, including in the market value of the interest the 
reasonable cost of moving out the personal property stored in the 
premises, the cost of storage of goods against their sale, and the cost 
of returning the property to the premises.\225\ Another exception to the 
general rule occurs with a partial taking, in which the government takes 
less than the entire parcel of land and leaves the owner with a portion 
of what he had before; in such a case compensation includes any 
diminished value of the remaining portion (``severance damages'') as 
well as the value of the taken portion.\226\

        \223\Mitchell v. United States, 267 U.S. 341 (1925); United 
States ex rel. TVA v. Powelson, 319 U.S. 266 (1943); United States v. 
Petty Motor Co., 327 U.S. 372 (1946). For consideration of the problem 
of fair compensation in government-supervised bankruptcy reorganization 
proceedings, see New Haven Inclusion Cases, 399 U.S. 392, 489-95 (1970).
        \224\United States v. General Motors Corp., 323 U.S. 373, 382 
(1945).
        \225\United States v. General Motors Corp., 323 U.S. 373 (1945). 
In Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), the 
Government seized the tenant's plant for the duration of the war, which 
turned out to be less than the full duration of the lease, and, having 
no other means of serving its customers, the laundry suspended business 
for the period of military occupancy; the Court narrowly held that the 
Government must compensate for the loss in value of the business 
attributable to the destruction of its ``trade routes,'' that is, for 
the loss of customers built up over the years and for the continued hold 
of the laundry upon their patronage. See also United States v. Pewee 
Coal Co., 341 U.S. 114 (1951) (in temporary seizure, Government must 
compensate for losses attributable to increased wage payments by the 
Government).
        \226\United States v. Miller, 317 U.S. 369, 375-76 (1943). ``On 
the other hand,'' the Court added, ``if the taking has in fact 
benefitted the remainder, the benefit may be set off against the value 
of the land taken.'' Id.
---------------------------------------------------------------------------

        Enforcement of Right to Compensation.--The nature and character 
of the tribunal to determine compensation is in the discretion of the 
legislature, and may be a regular court, a special legislative court, a 
commission, or an administrative body.\227\ Proceedings to condemn land 
for the benefit of the United States are brought in the federal district 
court for the district in which the land is located.\228\ The estimate 
of just compensation is not required to be made by a jury but may be 
made by a judge or entrusted to a commission or other body.\229\ Federal 
courts may ap

[[Page 1380]]
point a commission in condemnation actions to resolve the compensation 
issue.\230\ If a body other than a court is designated to determine just 
compensation, its decision must be subject to judicial review,\231\ 
although the scope of review may be limited by the legislature.\232\ 
When the judgment of a state court with regard to the amount of 
compensation is questioned, the Court's review is restricted. ``All that 
is essential is that in some appropriate way, before some properly 
constituted tribunal, inquiry shall be made as to the amount of 
compensation, and when this has been provided there is that due process 
of law which is required by the Federal Constitution.''\233\ ``[T]here 
must be something more than an ordinary honest mistake of law in the 
proceedings for compensation before a party can make out that the State 
has deprived him of his property unconstitutionally.''\234\ Unless, by 
its rulings of law, the state court prevented a complainant from 
obtaining substantially any compensation, its findings as to the amount 
of damages will not be overturned on appeal, even though as a 
consequence of error therein the property owner received less than he 
was entitled to.\235\

        \227\United States v. Jones, 109 U.S. 513 (1883); Bragg v. 
Weaver, 251 U.S. 57 (1919).
        \228\28 U.S.C. Sec. 1403. On the other hand, inverse 
condemnation actions (claims that the United States has taken property 
without compensation) are governed by the Tucker Act, 28 U.S.C. 
Sec. 1491(a)(1), which vests the Court of Federal Claims (formerly the 
Claims Court) with jurisdiction over claims against the United States 
``founded . . . upon the Constitution.'' See Presault v. ICC, 494 U.S. 1 
(1990).
        \229\Bauman v. Ross, 167 U.S. 548 (1897). Even when a jury is 
provided to determine the amount of compensation, it is the rule at 
least in federal court that the trial judge is to instruct the jury with 
regard to the criteria and this includes determination of ``all issues'' 
other than the precise issue of the amount of compensation, so that the 
judge decides those matters relating to what is computed in making the 
calculation. United States v. Reynolds, 397 U.S. 14 (1970).
        \230\Rule 71A(h), Fed. R. Civ. P. These commissions have the 
same powers as a court-appointed master.
        \231\Monongahela Navigation Co. v. United States, 148 U.S. 312, 
327 (1893).
        \232\Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 
(1897). In federal courts, reports of Rule 71A commissions are to be 
accepted by the court unless ``clearly erroneous.'' Fed. R. Civ. P. 
53(e)(2).
        \233\Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569, 
(1898).
        \234\McGovern v. City of New York, 229 U.S. 363, 370-71 (1913).
        \235\Id. at 371. And see Provo Bench Canal Co. v. Tanner, 239 
U.S. 323 (1915); Appleby v. City of Buffalo, 221 U.S. 524 (1911).
---------------------------------------------------------------------------
      When Property Is Taken 

        The issue whether one's property has been ``taken'' with the 
consequent requirement of just compensation can hardly arise when 
government institutes condemnation proceedings directed to it. Where, 
however, physical damage results to property because of government 
action, or where regulatory action limits activity on the property or 
otherwise deprives it of value, whether there has been a taking in the 
Fifth Amendment sense becomes critical.

        Government Activity Not Directed at the Property.--The older 
cases proceeded on the basis that the requirement of just compensation 
for property taken for public use referred only to ``direct 
appropriation, and not to consequential injuries resulting from

[[Page 1381]]
the exercise of lawful power.''\236\ Accordingly, a variety of 
consequential injuries were held not to constitute takings: damage to 
abutting property resulting from the authorization of a railroad to 
erect tracts, sheds, and fences over a street;\237\ similar 
deprivations, lessening the circulation of light and air and impairing 
access to premises, resulting from the erection of an elevated viaduct 
over a street, or resulting from the changing of a grade in the 
street.\238\ Nor was government held liable for the extra expense which 
the property owner must obligate in order to ward off the consequence of 
the governmental action, such as the expenses incurred by a railroad in 
planking an area condemned for a crossing, constructing gates, and 
posting gatemen,\239\ or by a landowner in raising the height of the 
dikes around his land to prevent their partial flooding consequent to 
private construction of a dam under public licensing.\240\

        \236\Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871). The 
Fifth Amendment ``has never been supposed to have any bearing upon, or 
to inhibit laws that indirectly work harm and loss to individuals,'' the 
Court explained.
        \237\Meyer v. City of Richmond, 172 U.S. 82 (1898).
        \238\Sauer v. City of New York, 206 U.S. 536 (1907). But see the 
litigation in the state courts cited by Justice Cardozo in Roberts v. 
City of New York, 295 U.S. 264, 278-82 (1935).
        \239\Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 
(1897).
        \240\Manigault v. Springs, 199 U.S. 473 (1905).
---------------------------------------------------------------------------

        But the Court also decided long ago that land can be ``taken'' 
in the constitutional sense by physical invasion or occupation by the 
government, as occurs when government floods land.\241\ A later 
formulation was that ``[p]roperty is taken in the constitutional sense 
when inroads are made upon an owner's use of it to an extent that, as 
between private parties, a servitude has been acquired either by 
agreement or in course of time.''\242\ It was thus held that the 
government had imposed a servitude for which it must compensate the 
owner on land adjoining its fort when it repeatedly fired the guns at 
the fort across the land and had established a fire control service 
there.\243\ In two major cases, the Court held that the lessees or 
operators of airports were required to compensate the owners of adjacent 
land when the noise, glare, and fear of injury occasioned by the low 
altitude overflights during takeoffs and landings made the land unfit 
for the use to which the owners had applied it.\244\ Eventually, the 
term ``inverse condemnation'' came to

[[Page 1382]]
be used to refer to such cases where the government has not instituted 
formal condemnation proceedings, but instead the property owner has sued 
for just compensation, claiming that governmental action or regulation 
has ``taken'' his property.\245\

        \241\Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177-78 
(1872).
        \242\United States v. Dickinson, 331 U.S. 745, 748 (1947).
        \243\Portsmouth Harbor Land & Hotel Co. v. United States, 260 
U.S. 327 (1922). Cf. Portsmouth Harbor Land & Hotel Co. v. United 
States, 250 U.S. 1 (1919); Peabody v. United States, 231 U.S. 530 
(1913).
        \244\United States v. Causby, 328 U.S. 256 (1946); Griggs v. 
Allegheny County, 369 U.S. 84 (1962). A corporation chartered by 
Congress to construct a tunnel and operate railway trains therein was 
held liable for damages in a suit by one whose property was so injured 
by smoke and gas forced from the tunnel as to amount to a taking. 
Richards v. Washington Terminal Co., 233 U.S. 546 (1914).
        \245\``The phrase `inverse condemnation' generally describes a 
cause of action against a government defendant in which a landowner may 
recover just compensation for a `taking' of his property under the Fifth 
Amendment, even though formal condemnation proceedings in exercise of 
the sovereign's power of eminent domain have not been instituted by the 
government entity.'' San Diego Gas & Electric Co. v. City of San Diego, 
450 U.S. 621, 638 n.2 (1981) (Justice Brennan dissenting). See also 
United States v. Clarke, 445 U.S. 253, 257 (1980); Agins v. City of 
Tiburon, 447 U.S. 255, 258 n.2 (1980).
---------------------------------------------------------------------------

        Navigable Waters.--The repeated holdings that riparian ownership 
is subject to the power of Congress to regulate commerce constitute an 
important reservation to the developing law of liability in the taking 
area. When damage results consequentially from an improvement to a 
river's navigable capacity, or from an improvement on a nonnavigable 
river designed to affect navigability elsewhere, it is generally not a 
taking of property but merely an exercise of a servitude to which the 
property is always subject.\246\ This exception does not apply to lands 
above the ordinary high-water mark of a stream,\247\ hence is 
inapplicable to the damage the Government may do to such ``fast lands'' 
by causing overflows, by erosion, and otherwise, consequent on erection 
of dams or other improvements.\248\ And, when previously nonnavigable 
waters are made navigable by private investment, government may not, 
without paying compensation, simply assert a navigation servitude and 
direct the property owners to afford public access.\249\

        \246\Gibson v. United States, 166 U.S. 269 (1897); Lewis Blue 
Point Oyster Co. v. Briggs, 229 U.S. 82 (1913); United States v. 
Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); United States v. 
Appalachian Power Co., 311 U.S. 377 (1940); United States v. Commodore 
Park, Inc., 324 U.S. 386 (1945); United States v. Willow River Power 
Co., 324 U.S. 499 (1945); United States v. Twin City Power Co., 350 U.S. 
222 (1956); United States v. Rands, 389 U.S. 121 (1967).
        \247\United States v. Virginia Elec. & Power Co., 365 U.S. 624, 
628 (1961).
        \248\United States v. Lynah, 188 U.S. 445 (1903); United States 
v. Cress, 243 U.S. 316 (1917); Jacobs v. United States, 290 U.S. 13 
(1933); United States v. Dickinson, 331 U.S. 745 (1947); United States 
v. Kansas City Ins. Co., 339 U.S. 799 (1950); United States v. Virginia 
Electric & Power Co., 365 U.S. 624 (1961).
        \249\Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn 
v. Vermillion Corp., 444 U.S. 206 (1979).
---------------------------------------------------------------------------

        Regulatory Takings.--While it is established that government may 
take private property, with compensation, to promote the public 
interest, that interest also may be served by regulation of property use 
pursuant to the police power, and for years there was broad dicta that 
no one may claim damages due to a police regulation designed to secure 
the common welfare, especially in the

[[Page 1383]]
area of health and safety regulations.\250\ ``The distinguishing 
characteristic between eminent domain and the police power is that the 
former involves the taking of property because of its need for the 
public use while the latter involves the regulation of such property to 
prevent the use thereof in a manner that is detrimental to the public 
interest.''\251\ But regulation may deprive an owner of most or all 
beneficial use of his property and may destroy the values of the 
property for the purposes to which it is suited.\252\ The older cases 
flatly denied the possibility of compensation for this diminution of 
property values,\253\ but the Court in 1922 established as a general 
principle that ``if regulation goes too far it will be recognized as a 
taking.''\254\

        \250\Mugler v. Kansas, 123 U.S. 623, 668-69 (1887). See also The 
Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871); Chicago, B. & Q. 
R.R. v. City of Chicago, 166 U.S. 226, 255 (1897); Omnia Commercial Co. 
v. United States, 261 U.S. 502 (1923); Norman v. Baltimore & Ohio R.R., 
294 U.S. 240 (1935).
        \251\1 Nichols' The Law of Eminent Domain Sec. 1.42 (J. Sackman, 
3d rev. ed. 1973).
        \252\E.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915) 
(ordinance upheld restricting owner of brick factory from continuing his 
use after residential growth surrounding factory made use noxious, even 
though value of property was reduced by more than 90%); Miller v. 
Schoene, 276 U.S. 272 (1928) (no compensation due owner's loss of red 
cedar trees ordered destroyed because they were infected with rust that 
threatened contamination of neighboring apple orchards: preferment of 
public interest in saving cash crop to property interest in ornamental 
trees was rational).
        \253\Mugler v. Kansas, 123 U.S. 623, 668-69 (1887) (ban on 
manufacture of liquor greatly devalued plaintiff's plant and machinery; 
no taking possible simply because of legislation deeming a use injurious 
to public health and welfare).
        \254\Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). 
See also Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2895 
(1992) (a regulation that deprives a property owner of all beneficial 
use of his property requires compensation, unless the owner's proposed 
use is one prohibited by background principles of property or nuisance 
law existing at the time the property was acquired).
---------------------------------------------------------------------------

        In the Mahon case, Justice Holmes for the Court, over Justice 
Brandeis' vigorous dissent, held unconstitutional a state statute 
prohibiting subsurface mining in regions where it presented a danger of 
subsidence for homeowners. The homeowners had purchased by deeds which 
reserved to the coal companies ownership of subsurface mining rights and 
which held the companies harmless for damage caused by subsurface mining 
operations. The statute thus gave the homeowners more than they had been 
able to obtain through contracting, and at the same time deprived the 
coal companies of the entire value of their subsurface estates. The 
Court observed that ``[f]or practical purposes, the right to coal 
consists in the right to mine,'' and that the statute, by making it 
``commercially impracticable to mine certain coal,'' had essentially 
``the same effect for constitutional purposes as appropriating or 
destroying it.''\255\ The regulation, therefore, in precluding the 
companies from

[[Page 1384]]
exercising any mining rights whatever, went ``too far.''\256\ However, 
when presented 65 years later with a very similar restriction on coal 
mining, the Court upheld it in Keystone Bituminous Coal Ass'n v. 
DeBenedictis.\257\ Unlike its precursor, the Court explained, the newer 
law ``does not merely involve a balancing of the private economic 
interests of coal companies against the private interests of the surface 
owners.''\258\ Instead, the state had identified ``important public 
interests'' (e.g., conservation, protection of water supplies, 
preservation of land values for taxation) and had broadened the law to 
apply regardless of whether the surface and mineral estates were in 
separate ownership. A second factor distinguishing Keystone from Mahon, 
the Court explained, was the absence of proof that the new subsidence 
law made it ``commercially impracticable'' for the coal companies to 
continue mining.\259\ The Court rejected efforts to define separate 
segments of property for taking purposes--either the coal in place under 
protected structures, or the ``support estate'' recognized under 
Pennsylvania law.\260\ Economic impact is measured by reference to the 
property as a whole; consideration of the coal placed off limits to 
mining as merely part of a larger estate and not as a separate estate 
undermined the commercial impracticability argument.

        \255\260 U.S. at 414-15.
        \256\Id. at 415. In dissent, Justice Brandeis argued that a 
restriction imposed to abridge the owner's exercise of his rights in 
order to prohibit a noxious use or to protect the public health and 
safety simply could not be a taking, because the owner retained his 
interest and his possession. Id. at 416.
        \257\480 U.S. 470 (1987). The decision was 5-4. Justice Stevens' 
opinion of the Court was joined by Justices Brennan, White, Marshall, 
and Blackmun; Chief Justice Rehnquist's dissent was joined by Justices 
Powell, O'Connor, and Scalia.
        \258\480 U.S. at 485.
        \259\Id. at 495-96.
        \260\Id. at 498-502. How to define the property interest to be 
measured for diminution in value or economic impact remains largely 
unresolved. Recent dictum suggests that the answer to segmentation ``may 
lie in how the owner's reasonable expectations have been shaped by the 
State's law of property--i.e., whether and to what degree the State's 
law has accorded legal recognition and protection to the particular 
interest in land. . . .'' Lucas v. South Carolina Coastal Council, 112 
S. Ct. 2886, 2894 n.7 (1992). Application of this test could have led to 
invalidation in Keystone, inasmuch as Pennsylvania law recognized a 
support estate allegedly totally eliminated by the mining restriction.
---------------------------------------------------------------------------

        The Court had been early concerned with the imposition upon one 
or a few individuals of the costs of furthering the public 
interest.\261\ But it was with respect to zoning that the Court first 
experienced some difficulty in this regard. The Court's first zoning 
case

[[Page 1385]]
involved a real estate company's challenge to a comprehensive municipal 
zoning ordinance, alleging that the ordinance prevented development of 
its land for industrial purposes and thereby reduced its value from 
$10,000 an acre to $2,500 an acre.\262\ Acknowledging that zoning was of 
recent origin, the Court observed that it must find its justification in 
the police power and be evaluated by the constitutional standards 
applied to exercises of the police power. After considering traditional 
nuisance law, the Court determined that the public interest was served 
by segregation of incompatible land uses and the ordinance was thus 
valid on its face; whether its application to diminish property values 
in any particular case was also valid would depend, the Court said, upon 
a finding that it was not ``clearly arbitrary and unreasonable, having 
no substantial relation to the public health, safety, morals, or general 
welfare.''\263\ A few years later the Court, again relying on due 
process rather than taking law, did invalidate the application of a 
zoning ordinance to a tract of land, finding that the tract would be 
rendered nearly worthless and that to exempt the tract would impair no 
substantial municipal interest.\264\ But then the Court withdrew from 
the land-use scene for about 50 years, leaving the States and their 
municipalities mostly free to develop increasingly more comprehensive 
zoning techniques.\265\

        \261\Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935) 
(government may not require railroad at its own expense to separate the 
grade of a railroad track from that of an interstate highway). See also 
Panhandle Eastern Pipe Line Co. v. State Comm'n, 294 U.S. 613 (1935); 
Atchison, T. & S. F. Ry. v. Public Utility Comm'n, 346 U.S. 346 (1953), 
and compare the Court's two decisions in Georgia Ry. & Electric Co. v. 
City of Decatur, 295 U.S. 165 (1935), and 297 U.S. 620 (1936).
        \262\Village of Euclid v. Ambler Realty Co., 272 U.S. 365 
(1926).
        \263\Id. at 395. See also Zahn v. Board of Public Works, 274 
U.S. 325 (1927).
        \264\Nectow v. City of Cambridge, 277 U.S. 183 (1928).
        \265\But see Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) 
(considering and sustaining single-family zoning as applied to group of 
college students sharing a house), and Moore v. City of East Cleveland, 
431 U.S. 494 (1977) (considering and voiding single-family zoning so 
strictly construed as to bar a grandmother from living with two 
grandchildren of different children). Some due process cases were also 
considered. Eubank v. City of Richmond, 226 U.S. 137 (1912); Washington 
ex rel. Seattle Trust Co. v. Roberge, 278 U.S. 116 (1928); City of 
Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976).
---------------------------------------------------------------------------

        As governmental regulation of property has expanded over the 
years--in terms of zoning and land use controls, environmental 
regulations, and the like--the Court never developed, as it admitted, a 
``set formula to determine where regulation ends and taking 
begins.''\266\ Rather, as one commentator remarked, its decisions 
constitute a ``crazy quilt pattern'' of judgments.\267\ Nonetheless, the

[[Page 1386]]
Court has now formulated general principles that guide many of its 
decisions in the area.

        \266\Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 
124 (1978). The phrase appeared first in Goldblatt v. Town of Hempstead, 
369 U.S. 590, 594 (1962).
        \267\Dunham, Griggs v. Allegheny County in Perspective: Thirty 
Years of Supreme Court Expropriation Law, 1962 Sup. Ct. Rev. 63. For an 
effort to ground taking jurisprudence in its philosophical precepts, see 
Michelman, Property, Utility, and Fairness: Comments on the Ethical 
Foundations of `Just Compensation' Law, 80 Harv. L. Rev. 1165 (1967). A 
comprehensive analysis of the law in context is Developments in the Law-
Zoning, 91 Harv. L. Rev. 1427 (1978).
---------------------------------------------------------------------------

        In Penn Central Transportation Co. v. City of New York,\268\ the 
Court, while cautioning that regulatory takings cases require 
``essentially ad hoc, factual inquiries,'' nonetheless laid out general 
guidance for determining whether a regulatory taking has occurred. ``The 
economic impact of the regulation on the claimant and, particularly, the 
extent to which the regulation has interfered with reasonable 
investment-backed expectations are . . . relevant considerations. So 
too, is the character of the governmental action. A `taking' may more 
readily be found when the interference with property can be 
characterized as a physical invasion by government than when 
interference arises from some public program adjusting the benefits and 
burdens of economic life to promote the common good.''\269\

        \268\438 U.S. 104 (1978). Justices Rehnquist and Stevens and 
Chief Justice Burger dissented. Id. at 138.
        \269\Id. at 124 (citations omitted).
---------------------------------------------------------------------------

        At issue in Penn Central was the City's landmarks preservation 
law, as applied to deny approval to construct a 53-story office building 
atop Grand Central Terminal. The Court upheld the landmarks law against 
Penn Central's takings claim through application of the principles set 
forth above. The economic impact on Penn Central was considered: the 
Company could still make a ``reasonable return'' on its investment by 
continuing to use the facility as a rail terminal with office rentals 
and concessions, and the City specifically permitted owners of landmark 
sites to transfer to other sites the right to develop those sites beyond 
the otherwise permissible zoning restrictions, a valuable right which 
mitigated the burden otherwise to be suffered by the owner. As for the 
character of the governmental regulation, the Court found the landmarks 
law to be an economic regulation rather than a governmental 
appropriation of property, the preservation of historic sites being a 
permissible goal and one which served the public interest.\270\

        \270\Id. at 124-28, 135-38.
---------------------------------------------------------------------------

        Justice Holmes began his analysis in Mahon with the observation 
that ``[g]overnment hardly could go on if to some extent values incident 
to property could not be diminished without paying for every . . . 
change in the general law,''\271\ and Penn Central's economic impact 
standard also leaves ample room for recognition of this principle. Thus, 
the Court can easily hold that a mere permit requirement does not amount 
to a taking,\272\ nor does a simple rec

[[Page 1387]]
ordation requirement.\273\ The tests become more useful, however, when 
compliance with regulation becomes more onerous.

        \271\260 U.S. at 413.
        \272\United States v. Riverside Bayview Homes, 474 U.S. 121 
(1985) (requirement that permit be obtained for filling privately-owned 
wetlands is not a taking, although permit denial resulting in prevention 
of economically viable use of land may be).
        \273\Texaco v. Short, 454 U.S. 516 (1982) (state statute deeming 
mineral claims lapsed upon failure of putative owners to take prescribed 
steps is not a taking); United States v. Locke, 471 U.S. 84 (1984) 
(reasonable regulation of recordation of mining claim is not a taking).
---------------------------------------------------------------------------

        Several times the Court has relied on the concept of ``distinct 
(or ``reasonable'') investment-backed expectations'' first introduced in 
Penn Central. In Ruckelshaus v. Monsanto Co.,\274\ the Court used the 
concept to determine whether a taking had resulted from the government's 
disclosure of trade secret information submitted with applications for 
pesticide registrations. Disclosure of data that had been submitted from 
1972 to 1978, a period when the statute guaranteed confidentiality and 
thus ``formed the basis of a reasonable investment-backed expectation,'' 
would have destroyed the property value of the trade secret and 
constituted a taking.\275\ Following 1978 amendments setting forth 
conditions of data disclosure, however, applicants voluntarily 
submitting data in exchange for the economic benefits of registration 
had no reasonable expectation of additional protections of 
confidentiality.\276\ Relying less heavily on the concept but rejecting 
an assertion that reasonable investment backed-expectations had been 
upset, the Court in Connolly v. Pension Benefit Guaranty Corp.\277\ 
upheld retroactive imposition of liability for pension plan withdrawal 
on the basis that employers had at least constructive notice that 
Congress might buttress the legislative scheme to accomplish its 
legislative aim that employees receive promised benefits. On the other 
hand, a federal ban on the sale of artifacts made from eagle feathers 
was sustained as applied to the existing inventory of a commercial 
dealer in such artifacts, the Court not directly addressing the ban's 
obvious interference with investment-backed expectations.\278\ The Court 
merely noted that the ban served a substantial public purpose in 
protecting the eagle from extinction, that the owner still

[[Page 1388]]
had viable economic uses for his holdings, such as displaying them in a 
museum and charging admission, and that he still had the value of 
possession.\279\

        \274\467 U.S. 986 (1984).
        \275\467 U.S. at 1011.
        \276\467 U.S. at 1006-07. Similarly, disclosure of data 
submitted before the confidentiality guarantee was placed in the law did 
not frustrate reasonable expectations, the Trade Secrets Act merely 
protecting against ``unauthorized'' disclosure. Id. at 1008-10.
        \277\ 475 U.S. 211 (1986). In addition, see Kaiser Aetna v. 
United States, 444 U.S. 164, 179 (1979) (involving frustration of 
``expectancies'' developed through improvements to private land and 
governmental approval of permits), and PruneYard Shopping Center v. 
Robins, 447 U.S. 74, 84 (1980) (characterizing and distinguishing Kaiser 
Aetna as involving interference with ``reasonable investment backed 
expectations'').
        \278\Andrus v. Allard, 444 U.S. 51 (1979).
        \279\Similarly, the Court in Goldblatt had pointed out that the 
record contained no indication that the mining prohibition would reduce 
the value of the property in question. 369 U.S. at 594. Contrast Hodel 
v. Irving, 481 U.S. 704 (1987), where the Court found insufficient 
justification for a complete abrogation of the right to pass on to heirs 
interests in certain fractionated property. Note as well the differing 
views expressed in Irving as to whether that case limits Andrus v. 
Allard to its facts. Id. at 718 (Justice Brennan concurring, 719 
(Justice Scalia concurring). And see the suggestion in Lucas v. South 
Carolina Coastal Council, 112 S. Ct. 2886, 2899-900 (1992), that Allard 
may rest on a distinction between permissible regulation of personal 
property, on the one hand, and real property, on the other.
---------------------------------------------------------------------------

        In the course of its opinion in Penn Central the Court rejected 
the principle that no compensation is required when regulation bans a 
noxious or harmful effect of land use.\280\ The principle, it had been 
contended, followed from several earlier cases, including Goldblatt v. 
Town of Hempstead.\281\ In that case, after the town had expanded around 
an excavation used by a company for mining sand and gravel, the town 
enacted an ordinance that in effect terminated further mining at the 
site. Declaring that no compensation was owed, the Court stated that 
``[a] prohibition simply upon the use of property for purposes that are 
declared, by valid legislation, to be injurious to the health, morals, 
or safety of the community, cannot, in any just sense, be deemed a 
taking or an appropriation of property for the public benefit. Such 
legislation does not disturb the owner in the control or use of his 
property for lawful purposes, nor restrict his right to dispose of it, 
but is only a declaration by the State that its use by any one, for 
certain forbidden purposes, is prejudicial to the public 
interests.''\282\ In Penn Central, however, the Court denied that there 
was any such test and that prior cases had turned on the concept. 
``These cases are better understood as resting not on any supposed 
`noxious' quality of the prohibited uses but rather on the ground that 
the restrictions were reasonably related to the implementation of a 
policy--not unlike historic preservation--expected to produce a 
widespread public benefit and applicable to all similarly situated 
property.''\283\ More recently, in Lucas

[[Page 1389]]
v. South Carolina Coastal Council,\284\ the Court explained ``noxious 
use'' analysis as merely an early characterization of police power 
measures that do not require compensation. ``[N]oxious use logic cannot 
serve as a touchstone to distinguish regulatory `takings'--which require 
compensation--from regulatory deprivations that do not require 
compensation.''\285\

        \280\The dissent was based upon this test. 438 U.S. at 144-46.
        \281\369 U.S. 590 (1962). Hadacheck v. Sebastian, 239 U.S. 394 
(1915), and, perhaps, Miller v. Schoene, 276 U.S. 272 (1928), also fall 
under this heading, although Schoene may also be assigned to the public 
peril line of cases.
        \282\Id. at 593 (quoting Mugler v. Kansas, 123 U.S. 623, 668-69 
(1887). The Court posited a two-part test. First, the interests of the 
public required the interference, and, second, the means were reasonably 
necessary for the accomplishment of the purpose and were not unduly 
oppressive of the individual. Id. at 595. The test was derived from 
Lawton v. Steele, 152 U.S. 133, 137 (1894) (holding that state officers 
properly destroyed fish nets that were banned by state law in order to 
preserve certain fisheries from extinction).
        \283\438 U.S. at 133-34 n.30.
        \284\112 S. Ct. 2886 (1992).
        \285\Id. at 2899. The Penn Central majority also rejected the 
dissent's contention, 438 U.S. at 147-50, that regulation of property 
use constitutes a taking unless it spreads its distribution of benefits 
and burdens broadly so that each person burdened has at the same time 
the enjoyment of the benefit of the restraint upon his neighbors. The 
Court deemed it immaterial that the landmarks law has a more severe 
impact on some landowners than on others: ``Legislation designed to 
promote the general welfare commonly burdens some more than others.'' 
Id. at 133-34.
---------------------------------------------------------------------------

        Penn Central is not the only guide to when a regulatory taking 
has occurred; other criteria have emerged from other cases before and 
after Penn Central. The Court has long recognized a per se takings rule 
for physical invasions: when government permanently\286\ occupies or 
authorizes someone else to occupy property, the action constitutes a 
taking and compensation must be paid regardless of the public interests 
served by the occupation or the extent of damage to the parcel as a 
whole.\287\ The modern case dealt with a law that required landlords to 
permit a cable television company to install its cable facilities upon 
their buildings; although the equipment occupied only about 1 1/2 cubic 
feet of space on the exterior of each building and had only de minimis 
economic impact, a divided Court held that the regulation authorized a 
permanent physical occupation of the property and thus constituted a 
taking.\288\

        \286\By contrast, the per se rule is inapplicable to temporary 
physical occupations of land. Loretto v. Teleprompter Manhattan CATV 
Corp., 458 U.S. 419, 428, 434 (1982); PruneYard Shopping Center v. 
Robins, 447 U.S. 74, 84 (1980).
        \287\The rule emerged from cases involving flooding of lands and 
erection of poles for telegraph lines, e.g., Pumpelly v. Green Bay Co., 
80 U.S. (13 Wall.) 166 (1872); City of St. Louis v. Western Union 
Telegraph Co., 148 U.S. 92 (1893); Western Union Telegraph Co. v. 
Pennsylvania R.R., 195 U.S. 540 (1904).
        \288\Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 
(1982). Loretto was distinguished in FCC v. Florida Power Corp., 480 
U.S. 245 (1987); regulation of the rates that utilities may charge cable 
companies for pole attachments does not constitute a taking in the 
absence of any requirement that utilities allow attachment and acquiesce 
in physical occupation of their property. See also Yee v. City of 
Escondido, 112 S. Ct. 1522 (1992) (no physical occupation was occasioned 
by regulations in effect preventing mobile home park owners from setting 
rents or determining who their tenants would be; owners could still 
determine whether their land would be used for a trailer park and could 
evict tenants in order to change the use of their land).
---------------------------------------------------------------------------

        A second per se taking rule is of more recent vintage. Land use 
controls constitute takings, the Court stated in Agins v. City of 
Tiburon, if they do not ``substantially advance legitimate govern

[[Page 1390]]
mental interests,''\289\ or if they deny a property owner ``economically 
viable use of his land.''\290\ This second Agins criterion creates a 
categorical rule: ``when the owner of real property has been called upon 
to sacrifice all economically beneficial uses in the name of the common 
good, that is, to leave his property economically idle, he has suffered 
a taking.''\291\ The only exceptions, the Court explained in Lucas, are 
for those restrictions that come with the property as title encumbrances 
or other legally enforceable limitations. Regulations ``so severe'' as 
to prohibit all economically beneficial use of land ``cannot be newly 
legislated or decreed (without compensation), but must inhere in the 
title itself, in the restrictions that background principles of the 
State's law of property and nuisance already place upon land ownership. 
A law or decree with such an effect must, in other words, do no more 
than duplicate the result that could have been achieved in the courts--
by adjacent land owners (or other uniquely affected persons) under the 
State's law of private nuisance, or by the State under its complementary 
power to abate [public] nuisances . . . , or otherwise.''\292\ Thus, 
while there is no broad ``noxious use'' exception separating police 
power regulations from takings, there is a much narrower exception based 
on the law of nuisance and related principles.

        \289\This test was derived from Nectow v. City of Cambridge, 277 
U.S. 183 (1928), a due process case.
        \290\447 U.S. 255, 260 (1980).
        \291\Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 
2895 (1992). The Agins/Lucas total deprivation rule does not create an 
all-or-nothing situation, since ``the landowner whose deprivation is one 
step short of complete'' may still be able to recover through 
application of the Penn Central economic impact and ``distinct [or 
reasonable] investment-backed expectations'' criteria. Id. at 2895 n.8 
(1992).
        \292\Id. at 2900. The emphasis on title suggests that the timing 
of governmental regulation in relation to title transfer may be 
important. But there are apparently limits to how far this principle may 
be carried. In Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), 
in which Justice Scalia also authored the Court's opinion, the Court 
rejected the suggestion that title was encumbered by an easement imposed 
by a regulation that antedated property transfer. ``So long as the 
Commission could not have deprived the prior owners of the [beach 
access] easement without compensating them, the prior owners must be 
understood to have transferred their full property rights in conveying 
the lot.'' Id. at 834 n.2.
---------------------------------------------------------------------------

        The ``or otherwise'' reference, the Court explained in 
Lucas,\293\ was principally directed to cases holding that in times of 
great public peril, such as war, spreading municipal fires, and the 
like, property may be taken and destroyed without necessitating 
compensation. Thus, in United States v. Caltex,\294\ the owners of 
property de

[[Page 1391]]
stroyed by retreating United States armies in Manila during World War II 
were held not entitled to compensation, and in United States v. Central 
Eureka Mining Co.,\295\ the Court held that a federal order suspending 
the operations of a nonessential gold mine for the duration of the war 
in order to redistribute the miners, unaccompanied by governmental 
possession and use or a forced sale of the facility, was not a taking 
entitling the owner to compensation for loss of profits. Finally, the 
Court held that when federal troops occupied several buildings during a 
riot in order to dislodge rioters and looters who had already invaded 
the buildings, the action was taken as much for the owners' benefit as 
for the general public benefit and the owners must bear the costs of the 
damage inflicted on the buildings subsequent to the occupation.\296\

        \293\112 S. Ct. at 2900 n.16.
        \294\344 U.S. 149 (1952). In dissent, Justices Black and Douglas 
advocated the applicability of a test formulated by Justice Brandeis in 
Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 429 (1935), a 
regulation case, to the effect that ``when particular individuals are 
singled out to bear the cost of advancing the public convenience, that 
imposition must bear some reasonable relation to the evils to be 
eradicated or the advantages to be secured.''
        \295\357 U.S. 155 (1958). In dissent, Justice Harlan argued for 
the test stated above. Id. at 179. See supra, n.6.
        \296\National Bd. of YMCA v. United States, 395 U.S. 85 (1969). 
``An undertaking by the Government to reduce the menace from flood 
damages which were inevitable but for the Government's work does not 
constitute the Government a taker of all lands not fully and wholly 
protected. When undertaking to safeguard a large area from existing 
flood hazards, the Government does not owe compensation under the Fifth 
Amendment to every landowner which it fails to or cannot protect.'' 
United States v. Sponenbarger, 308 U.S. 256, 265 (1939).
---------------------------------------------------------------------------

        The first prong of the Agins test,\297\ focusing on whether land 
use controls ``substantially advance legitimate governmental 
interests,'' was applied in Nollan v. California Coastal 
Commission.\298\ There the Court held that extraction of a public access 
easement across a strip of beach as a condition for a permit to enlarge 
a beachfront home did not ``substantially advance'' the state's 
legitimate interest in preserving public view of the beach from the 
street in front of the lot. The easement instead was designed to allow 
the public to walk back and forth along the beach between two public 
beaches. ``[U]nless the permit condition serves the same governmental 
purpose as the development ban,'' the Court concluded, ``the building 
restriction is not a valid regulation of land use but `an out-and-out 
plan of extortion.'''\299\ The future importance of Nollan will depend 
in large measure on how broadly its principles are applied. Unlimited 
application of a substantial advancement test could herald decreased 
deference to legislative judgments as to appropriate regulation of 
property, and a resurrection of substantive due process analysis.\300\ 
Confined to its holding, however, Nollan may be

[[Page 1392]]
relatively unexceptional. The Court's frame of reference was that 
requiring a property owner to convey outright a public easement across 
his property would ordinarily and undeniably constitute a taking; the 
question posed was ``whether requiring [the easement] to be conveyed as 
a condition for issuing a land use permit alters the outcome.''\301\ 
However, for many conditions attached to permits (e.g., building code 
requirements relating to safety, quality of materials, or soundness of 
construction) the starting point is different: these conditions do not 
stand alone. And, even where Nollan issues apparently could be raised 
(as, e.g., with respect to requirements that subdivision developers 
dedicate land for recreation needs generated by their developments), it 
may often be possible to establish that the condition ``substantially 
advances'' the same legitimate governmental purpose served by the permit 
requirement.\302\ Important to Nollan's application will be how narrowly 
or how broadly a reviewing court is willing to construe the public 
interests underlying the regulation of property.\303\

        \297\Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).
        \298\483 U.S. 825 (1987).
        \299\Id. at 837.
        \300\Dissenting Justice Brennan argued that the Court was 
requiring ``a degree of exactitude that is inconsistent with our 
standard for reviewing the rationality of a state's exercise of its 
police power for the welfare of its citizens.'' 483 U.S. at 842-43. 
Justice Scalia's opinion for the Court denied that the standards ``are 
the same as those applied to due process or equal protection claims,'' 
indicating further that ``a broad range of governmental purposes and 
regulations satisfies these requirements.'' Id. at 834 n.3, 834-35. For 
analysis, see N. Lawrence, Means, Motives, and Takings: The Nexus Test 
of Nollan v. California Coastal Commission, 12 Harv. Envtl. L. Rev. 231 
(1988). Note as well that Lucas also manifests decreased deference to 
legislative judgments; destruction of all beneficial use of property 
cannot be justified through legislative findings of necessity, but only 
by reference to background principles of property law.
        \301\Id. at 834.
        \302\Justice Scalia, author of the Court's opinion in Nollan, 
amplified his views in a concurring and dissenting opinion in Pennell v. 
City of San Jose, 485 U.S. 1 (1988), explaining that ``common zoning 
regulations requiring subdividers to observe lot-size and set-back 
restrictions, and to dedicate certain areas to public streets, are in 
accord with [constitutional requirements] because the proposed property 
use would otherwise be the cause of'' the social evil (e.g., congestion) 
that the regulation seeks to remedy. By contrast, the Justice asserted, 
a rent control restriction pegged to individual tenant hardship lacks 
such cause-and-effect relationship and is in reality an attempt to 
impose on a few individuals public burdens that ``should be borne by the 
public as a whole.'' 485 U.S. at 20, 22.
        \303\Compare Pioneer Trust and Savings Bank v. Village of Mount 
Prospect, 22 Ill.2d 375, 176 N.E.2d 799 (1961) (required dedication of 
land for school and playground is invalid as resulting from the total 
development of the community, rather than being specifically and 
uniquely attributable to the developer's activity) with Associated Home 
Builders v. City of Walnut Creek, 94 Cal. Rptr. 630, 484 P.2d 606, 610 
(1971) (exaction can be justified on the basis of ``general public need 
for recreational facilities caused by present and future 
subdivisions''). The Nollan Court cited the Mount Prospect case 
approvingly, while contrasting the California rule. 483 U.S. at 839.
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        Following the Penn Central decision, the Court grappled with the 
issue of the appropriate remedy property owners should pursue in 
objecting to land use regulations.\304\ The remedy question arises

[[Page 1393]]
because there are two possible constitutional objections to be made to 
regulations that go ``too far'' in reducing the value of property or 
which do not substantially advance a legitimate governmental interest. 
The regulation may be invalidated as a denial of due process, or may be 
deemed a taking requiring compensation, at least for the period in which 
the regulation was in effect. The Court finally resolved the issue in 
First English Evangelical Lutheran Church v. County of Los Angeles, 
holding that, when land use regulation is held to be a taking, 
compensation is due for the period of implementation prior to the 
holding.\305\ The Court recognized that, even though government may 
elect in such circumstances to discontinue regulation and thereby avoid 
compensation for a permanent property deprivation, ``no subsequent 
action by the government can relieve it of the duty to provide 
compensation for the period during which the taking was 
effective.''\306\

        \304\See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) 
(issue not reached because property owners challenging development 
density restrictions had not submitted a development plan); Hodel v. 
Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 293-97 
(1981), and Hodel v. Indiana, 452 U.S. 314, 333-36 (1981) (rejecting 
facial taking challenges to federal strip mining law).
        \305\482 U.S. 304 (1987). The decision was 6-3, Chief Justice 
Rehnquist's opinion of the Court being joined by Justices Brennan, 
White, Marshall, Powell, and Scalia, and Justice Stevens' dissent being 
joined in part by Justices Blackmun and O'Connor. The position the Court 
adopted had been advocated by Justice Brennan in a dissenting opinion in 
San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 636 (1981) 
(dissenting from Court's holding that state court decision was not 
``final judgment'' under 28 U.S.C. Sec. 1257).
        \306\482 U.S. at 321.
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        The process of describing general criteria to guide resolution 
of regulatory taking claims, begun in Penn Central, has reduced to some 
extent the ad hoc character of takings law. It is nonetheless true that 
not all cases fit neatly into the categories delimited to date, and that 
still other cases that might be so categorized are explained in 
different terms by the Court. The overriding objective, the Court 
frequently reminds us, is to vitalize the Fifth Amendment's protection 
against government ``forcing some people alone to bear public burdens 
which, in all fairness and justice, should be borne by the public as a 
whole.''\307\ Thus a taking may be found if the effect of regulation is 
enrichment of the government itself rather than adjustment of the 
benefits and burdens of economic life in promotion of the public 
good.\308\ Similarly, the Court looks

[[Page 1394]]
askance at governmental efforts to secure public benefits at a 
landowner's expense--``government actions that may be characterized as 
acquisitions of resources to permit or facilitate uniquely public 
functions.''\309\

        \307\Armstrong v. United States, 364 U.S. 40, 49 (1960). For 
other incantations of this fairness principle, see Penn Central, 438 
U.S. at 123-24; and Andrus v. Allard, 444 U.S. 51, 65 (1979).
        \308\Webb's Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980) 
(government retained the interest derived from funds it required to be 
deposited with the clerk of the county court as a precondition to 
certain suits; the interest earned was not reasonably related to the 
costs of using the courts, since a separate statute required payment for 
the clerk's services). By contrast, a charge for governmental services 
``not so clearly excessive as to belie [its] purported character as [a] 
user fee'' does not qualify as a taking. United States v. Sperry Corp., 
493 U.S. 52, 62 (1989).
        \309\Penn Central Transp. Co. v. New York City, 438 U.S. 104, 
128 (1978). In addition to the cases cited there, see also Kaiser Aetna 
v. United States, 444 U.S. 164, 180 (1979) (viewed as governmental 
effort to turn private pond into ``public aquatic park''); Nollan v. 
California Coastal Comm'n, 483 U.S. 825 (1987) (``extortion'' of 
beachfront easement for public as permit condition unrelated to purpose 
of permit).
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        On the other side of the coin, the nature as well as the extent 
of property interests affected by governmental regulation sometimes 
takes on importance. The Court emphasizes that the taking of one 
``strand'' or ``stick'' in the ``bundle'' of property rights does not 
necessarily constitute a taking as long as the property as a whole 
retains economic viability,\310\ but some strands are more important 
than others. The right to exclude others from one's land is so basic to 
ownership that extinguishment of this right ordinarily constitutes a 
taking.\311\ Similarly valued is the right to pass on property to one's 
heirs.\312\

        \310\Andrus v. Allard, 444 U.S. 51, 65-66 (1979) (denial of most 
profitable use of artifacts--the right to sell them--does not constitute 
a taking, since rights to possession, transportation, display, donation, 
and devise were retained).
        \311\Nollan v. California Coastal Comm'n, 483 U.S. 825, 831-32 
(1987) (physical occupation occurs with public easement that eliminates 
right to exclude others); Kaiser Aetna v. United States, 444 U.S. 164 
(1979) (imposition of navigation servitude requiring public access to a 
privately-owned pond was a taking under the circumstances; owner's 
commercially valuable right to exclude others was taken, and requirement 
amounted to ``an actual physical invasion''). But see PruneYard Shopping 
Center v. Robins, 447 U.S. 74, 84 (1980) (requiring shopping center to 
permit individuals to exercise free expression rights on property onto 
which public had been invited was not destructive of right to exclude 
others or ``so essential to the use or economic value of [the] 
property'' as to constitute a taking).
        \312\Hodel v. Irving, 481 U.S. 704 (1987) (complete abrogation 
of the right to pass on to heirs fractionated interests in lands 
constitutes a taking).
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        Even though takings were found or assumed in the recent 
decisions in First English, Nollan, and Lucas, considerable obstacles 
remain for future litigants challenging regulatory restrictions on land 
use. As suggested above, regulatory takings will most likely remain 
difficult to establish in spite of Nollan. The Lucas fact situation, in 
which governmental regulation rendered property ``valueless,'' may prove 
to be relatively rare (although how the ``segmentation'' issue\313\ is 
handled may prove pivotal in this regard). And even if a taking can be 
established, the Court cautioned in First English that its holding was 
limited ``to the facts presented [a taking was assumed] and [did] not 
deal with the quite different questions that would arise in the case of 
normal delays in obtaining building per

[[Page 1395]]
mits, changes in zoning ordinances, variances, and the like.''\314\ 
Failure to incur such delays can result in dismissal of an as-applied 
taking claim on ripeness grounds. In Williamson County Regional Planning 
Comm'n v. Hamilton Bank,\315\ for example, the landowner had failed to 
seek a variance following a planning commission's rejection of a 
subdivision plat, and had failed to pursue state inverse condemnation 
procedures. Similarly, in MacDonald, Sommer & Frates v. County of 
Yolo,\316\ the landowner had failed to obtain a ``final and 
authoritative determination of the type and intensity of development 
legally permitted on the . . . property.'' As the Court explained, ``[a] 
court cannot determine whether a regulation has gone `too far' unless it 
knows how far the regulation goes.''\317\ The landowner had been denied 
approval for one subdivision plan calling for intense development, but 
that one denial had not foreclosed ``the possibility that some 
deveopment [would] be permitted.''\318\ So too, a challenge to a 
municipal rent control ordinance was considered ``premature'' in the 
absence of evidence that a tenant hardship provision had in fact ever 
been applied to reduce what would otherwise be considered to be a 
reasonable rent increase.\319\ Facial challenges present the same 
difficulties--without pursuing administrative remedies, a claimant often 
lacks evidence that a statute's effect is to deny all economically 
viable uses of property.\320\

        \313\See n.260, supra.
        \314\482 U.S. at 321.
        \315\473 U.S. 172 (1985).
        \316\477 U.S. 340 (1986).
        \317\Id. at 348.
        \318\Id. at 352.
        \319\Pennell v. City of San Jose, 485 U.S. 1 (1988).
        \320\See, e.g., Hodel v. Virginia Surface Mining & Reclamation 
Ass'n, 452 U.S. 264, 295-97 (1981) (facial challenge to surface mining 
law rejected); United States v. Riverside Bayview Homes, 474 U.S. 121, 
127 (1985) (mere permit requirement does not itself take property).