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Constitutional Amendments and Business Law

5th Amendment and Business Application

The 5th Amendment protects people from being witnesses against themselves in criminal cases. While corporations are persons under the law, the 5th Amendment's protection against self-incrimination does not apply to them.

The 5th Amendment states that "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." This provision protects citizens from overzealous prosecutions. Someone being charged with a serious offense has a grand jury—a group of citizens, under a judge's supervision, who decide whether a corporation or other person should face criminal charges—to review the case and decide if there is a reasonable basis for the charge.

The 5th Amendment does not apply to corporations, so the employees and directors can be compelled to testify against the corporation. However, if a corporation is accused of a crime by way of its employees, members or directors can plead the fifth if they are questioned about their conduct. If they all did this, they could potentially protect the corporation.

The 5th Amendment guarantees that no one shall be deprived of life, liberty, or property without due process of law. For example, a business does not have liberty of movement, but does have the right to oppose the loss of property under due process. Due process ensures that before the government takes away someone's liberty or property, the person has a fair chance to oppose the government's doing so. Due process falls into two categories: substantive and procedural. Substantive due process is concerned with infringements on a person's basic rights, while procedural due process is concerned with fair and timely procedures by the justice system. This does not mean that all people entitled to due process receive the same type of hearing; rather, procedures will vary depending on the type of case.

The 5th Amendment's double jeopardy clause protects citizens from harassing and successive prosecutions for the same alleged act. It ensures the significance of a "not guilty" judgment and protects the defendant from malicious prosecution. Most people have far fewer resources than the government does, so double jeopardy protects individuals from being prosecuted repeatedly until their money runs out. There are, however, some exceptions to double jeopardy. Double jeopardy only applies when a person has been acquitted or convicted. A second trial can occur in the event of a mistrial because of the inability of the jury to reach a unanimous decision. If the case requires a unanimous jury verdict, then it is not possible to reach such a verdict if the jury is split (a "hung jury"). The mistrial or hung jury does not trigger the double jeopardy clause in this instance. Also, a person can be tried in both the federal and state courts without double jeopardy applying, since these are two separate sovereigns. This is known as the dual sovereignty doctrine.

Self-incrimination happens when an individual is forced to testify or answer questions that would violate their own rights. The 5th Amendment protects criminal defendants from being forced to testify if doing so would cause them to incriminate themselves as a result of the testimony. When a lawyer is questioning someone in court, the person testifying may respond with "I plead the fifth" and refuse to answer. A well-known example is that of O.J. Simpson, who was sued civilly and prosecuted by the State of California in 1996 for the murder of Nicole Brown Simpson and Ronald Goldman. These were two separate trials, one of which was in a criminal court and the other in a civil court. Simpson opted not to testify at his criminal trial. He could not be forced to testify and possibly incriminate himself through testimony or the cross-examination by the prosecutor. He did choose to testify in the civil trial, which came later, but he was not on trial for the criminal act in that case.

The Supreme Court offered specific instructions about self-incrimination in the case of Miranda v. Arizona, decided in 1966. In Miranda v. Arizona, the court ruled that law enforcement officials must tell arrested suspects that they have a right to avoid self-incrimination. Since the ruling, Police have given arrested suspects a Miranda warning to comply with this requirement.

Finally, the takings clause states private property shall not be taken for public use without just compensation. This includes eminent domain—the idea that a sovereign entity may take or appropriate any land within its borders for any purpose that it deems necessary or beneficial. In most cases, the taking must be for a public purpose. Even if the government takes the land for public use, there must be just compensation to the owner before the government takes their property. Businesses can expect compensation if the federal or state government takes real or personal property from them. "Taking" usually applies to tangible property, such as land and buildings. It can also apply to intangible property, such as brands or trademarks. One of the most well-known takings cases is Kelo v. City of New London. The city sought to use eminent domain for the purpose of developing a plan to bring in over 1,000 jobs. The owners of about 15 residential properties fought against the eminent domain and refused to sell or settle with the city's just compensation offer. Ultimately, the case made it to the U.S. Supreme Court, and the issue hinged on whether or not the city's development plan qualified as a public use. The court ruled in a 5–4 decision in favor of the taking.