Discussion Question

Why do you think the 5th Amendment includes a right to a grand jury? Do you think that an individual accused of a crime should have to testify? Do you think that this protection should apply to the criminal investigation stage as well as during formal trial? How do you feel about the fact that the 5th Amendment does not prohibit the Federal Government and a state government from prosecuting an individual for committing a single crime? 

• The right to a grand jury was included in the Fifth Amendment in order to protect civilians from facing serious criminal charges without public oversight. By requiring a grand jury made up of regular people, the potential for corruption and frivolous charges was lowered. However, in modern practice, since prosecutors primarily control what evidence the grand jury sees and hears, many consider them to be a tool of the prosecution rather than an independent body. Many consider the Fifth Amendment's protections against self-incrimination to be one of the most important fundamental rights. Much like the Fourth Amendment's protections against warrantless searches and seizures, it would be hard to fathom living in a society where law enforcement could force civilians to answer questions that could potentially subject them or others to imprisonment, fines, or both. Additionally, there is an argument that forced testimony given by the accused is unlikely to be accurate and complete and thus would need to be verified or corroborated to ensure that they are telling the truth. If the Fifth Amendments protections against self-incrimination didn't apply to pre-trial investigations, law enforcement could simply force the accused to confess and thus all but guarantee a conviction at trial. In this scenario, a trial might not even be necessary as the accused would likely be highly motivated to negotiate a plea bargain. Even without a confession, since so few criminal cases actually go to trial, in order for the protection to have any teeth it must apply to pre-trial investigations. The Fifth Amendments protection against double jeopardy - being forced to stand trial twice for the same offense - seems highly at odds with our dual federal and state court systems. However, federal and state offenses are often not the same and may have different charges with different elements and different defenses for the same conduct. Additionally, in practice, it is rare for both federal and state prosecutors to prosecute the same defendant for the same conduct. Federal prosecutors generally prioritize serious offenses and crimes involving conduct occurring across state lines and the state prosecutors office generally only prosecutes crimes that the federal prosecutors office declines.

Practice Question

 Donna is charged with participating in a bank robbery orchestrated by Alice. Eric, the prosecutor, decides to pursue separate trials against Donna and Alice. Eric wants to call Alice as a witness to testify against Donna and vice versa. Can Donna be compelled to testify in a trial against Alice? 

• The Fifth Amendment only protects people from being compelled to testify against themselves and not from being compelled to testify against others. Donna can be compelled to testify against Alice as long as her testimony does not also implicate herself in any crimes. Since this is unlikely to be true - after all, they committed the crime together - the prosecutor would likely have to offer Donna immunity in order to compel her testimony. This means that Donna's testimony in Alice's trial cannot be used as evidence against her in her own criminal trial.

Academic Research

• Davies, Thomas Y., Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a 'Trial Right' in Chavez V. Martinez. Tennessee Law Review, Vol. 70, pp. 987-1045, 2003. Available at SSRN: https://ssrn.com/abstract=992830 
• Maclin, Tracey, The Prophylactic Fifth Amendment (May 2, 2017). Boston University Law Review, Vol. 97, Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 17-14. Available at SSRN: https://ssrn.com/abstract=2963869 
• Mick, Alan Armand, The Fifth Amendment: Right or Privilege? (October 1, 2011). Available at SSRN: https://ssrn.com/abstract=1936925 or http://dx.doi.org/10.2139/ssrn.1936925
• Murphy, Erin Elizabeth, DNA and the Fifth Amendment (April 26, 2011). NYU School of Law, Public Law Research Paper No. 11-28. Available at SSRN: https://ssrn.com/abstract=1823722 or http://dx.doi.org/10.2139/ssrn.1823722 
• Cohen, Aloni and Park, Sunoo, Compelled Decryption and the Fifth Amendment: Exploring the Technical Boundaries (February 4, 2018). Harvard Journal of Law & Technology, Vol. 32, Fall 2018. Available at SSRN: https://ssrn.com/abstract=3117984 or http://dx.doi.org/10.2139/ssrn.3117984 
• Maclin, Tracey, The Right to Silence v. The Fifth Amendment (March 29, 2016). University of Chicago Legal Forum, 2016 Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 16-09. Available at SSRN: https://ssrn.com/abstract=2756086