In which of the following scenarios is the fifth amendment not relevant?

The Fifth Amendment to the U.S. Constitution guarantees that an individual cannot be compelled by the government to provide incriminating information about herself – the so-called “right to remain silent.”  When an individual “takes the Fifth,” she invokes that right and refuses to answer questions or provide information that might incriminate her.

The Fifth Amendment can be invoked only in certain situations.

• An individual can only invoke the Fifth Amendment in response to a communication that is compelled, such as through a subpoena or other legal process.
• The communication must also be testimonial in nature. In other words, it must relate to either express or implied assertions of fact or belief.  For example, a nod would be considered a testimonial communication for purposes of the Fifth Amendment.  So would the act of producing documents or any other piece of evidence; the act of production communicates an implied assertion that the individual possessed the evidence.
• Finally, the testimony must be self-incriminating, such that the information would provide a link in the chain of evidence needed to prosecute the individual for a crime. Thus, the information itself need not be incriminating; it suffices that the information would lead to the discovery of incriminating evidence.

Because the communication must be self-incriminating, an individual who has received immunity cannot invoke the Fifth Amendment as a basis for refusing to answer questions; any statements would not be incriminating because the immunity prevents the government from using those statements (or any evidence derived from them) in a criminal prosecution against the individual.  Likewise, an individual who has received a pardon may not have any basis for invoking the Fifth Amendment.  Finally, an individual who has been convicted of a crime and sentenced cannot invoke the Fifth Amendment.

When an individual takes the Fifth, her silence or refusal to answer questions cannot be used against her in a criminal case.  A prosecutor cannot argue to the jury that the defendant’s silence implies guilt.  And prosecutors typically cannot even call a witness before the grand jury if the prosecutor knows the witness will invoke the Fifth Amendment. 

But taking the Fifth can have severe consequences nonetheless.  In a civil case or a civil enforcement action, the judge or jury can draw an adverse inference to support liability when the defendant invokes the Fifth Amendment.  And an employee who invokes the Fifth Amendment in response to questions from federal agents who are investigating corporate wrongdoing might be fired as a result.

To learn more about corporate and executive criminal liability, follow us on LinkedIn.  “Brilliant lawyers with courtroom savvy” – Benchmark Litigation.  Copyright MoloLamken LLP 2018.

The Twenty-Fifth Amendment

(This eLesson was created by Dr. Felix Yerace, Founders Fellowship 2018, South Fayette High School, McDonald, Pennsylvania)

Summary:

At the White House ceremony that certified the ratification of the Twenty-Fifth Amendment, President Lyndon Johnson noted that

“It was 180 years ago, in the closing days of the Constitutional Convention, that the Founding Fathers debated the question of Presidential disability. John Dickinson of Delaware asked this question: “What is the extent of the term ‘disability’ and who is to be the judge of it?” No one replied.”

The Twenty-Fifth Amendment was ratified in 1967 and contains several important provisions dealing with the executive branch. Most notably, it provides a procedure by which the vice-president can assume the role of “Acting President” in the event the chief executive is incapacitated.

The need for the Twenty-Fifth Amendment was borne out of several factors. One was the increased power and responsibility that American presidents held in the twentieth century. Another was the responsibility presidents had for national security; in the nuclear age the president may be called upon at any moment to determine how to defend the nation. In the aftermath of World War I, President Woodrow Wilson had suffered a debilitating stroke that rendered him extremely limited in his ability to execute his powers as president, yet no mechanism existed for him to transfer his powers to Vice-President Thomas Marshall had he wanted to do so. While this did not do lasting damage to the government, a similar situation during the Cold War could have had disastrous consequences.

However, the most immediate reason that spurred the Twenty-Fifth Amendment was a realization that, due to advancements in modern medicine, it may be possible for a president to suffer a serious health crisis that could render them incapacitated for an extended time period, yet not end their life. President Dwight Eisenhower suffered a major heart attack in office that led him to work out an informal agreement with Vice-President Richard Nixon on how to manage the government in Eisenhower’s absence, yet this agreement had no legal standing. President John F. Kennedy’s assassination was a further reminder that a president could theoretically be incapacitated and be unable to execute the responsibilities of their office. Thus, there was an urgency to pass the Twenty-Fifth Amendment, which Congress did in the wake of the Kennedy assassination.

Since its passage, the Twenty-Fifth Amendment’s provision for the president to pass authority to the vice-president has only occurred three times: Once by President Reagan and twice by President George W. Bush, all three times the president was undergoing a colonoscopy, and all three times were done by the voluntary action of the president. The Twenty-Fifth Amendment contains language for the president to lose power involuntarily, but this has never been used. The closest this has ever been a possibility was in the wake of President Reagan’s attempted assassination. Despite this, the Twenty-Fifth Amendment’s value is shown in such cases as Israeli Prime Minister Arial Sharon, who suffered a massive and ultimately fatal stroke, and was removed as prime minister under Israeli law, allowing the Israeli government to continue functioning.

Despite the limited usage of passing presidential authority, this function is probably what the Twenty-Fifth Amendment is best known for and has been dramatized in pop culture references such as the movie Air Force One and television show The West Wing. However, it has actually been another part of the amendment, the part that allows presidents to appoint, with the consent of Congress, a person to fill the position of vice-president,that has been more consequential in U.S. History. This provision was used by President Nixon to appoint Gerald Ford as vice-president after the resignation of Spiro Agnew, and by Ford to appoint Nelson Rockefeller vice-president after Nixon’s own subsequent resignation and Ford’s elevation to the presidency.

This eLesson will provide students with an opportunity to learn about the text of the Twenty-Fifth Amendment as well as its historical usage and potential need. It will ask them to consider why such an Amendment was deemed necessary and how it has been, and could be, used. It will also give students the opportunity to debate possible applications of the Twenty-Fifth Amendment.

Objectives:

• Students will explain how President Tyler’s decision to become president upon the death of William Henry Harrison was an important precedent for the United States.
• Students will examine the current line of presidential succession and suggest possible improvements
• Students will debate different scenarios for invoking Section 4 of the Twenty-Fifth Amendment
• Students will consider who should make the decision that the President is incapacitated under Section 4 of the Twenty-Fifth Amendment

Resources:

Handout A: Article II, Section 1, Clause 6 of the Constitution

Handout B: John Tyler Biography (The Accidental President )

Handout C: US Code: Title 3, Chapter 1, 

Handout D: The 25th Amendment

Activity 1 (10-15 Minutes)

1. Have students read Handout A: Article II, Section 1, Clause 6 of the U.S. Constitution.

Ask students what they believe the phrase “the Same shall devolve on the Vice President” Poll students to see if they believe that means that the vice-president should automatically become President

1. Have students read Handout B: John Tyler Biography (the part under the heading “The Accidental President”)

Discuss Tyler’s decision to claim the full powers of the presidency for himself. Ask students how American History might have been different had Tyler not established this important precedent. For students who have knowledge of the Tyler presidency, ask them if his actions cause them to reassess his presidency, considering Tyler is often ranked as one of our worst presidents.

Additionally, ask students why they believe the Framers left presidential succession so vague while writing the Constitution.

1. Have students read Handout C: US Code: Title 3, Chapter 1, § 19. Under Article II of the Constitution, Congress determines presidential succession after the vice-president. Under the Presidential Succession Act of 1947, the current line is the Speaker of the House, President Pro Tempore of the Senate, and then Cabinet officers by order of their establishment.

Ask students if they can think of any other offices that should be “moved” in the line of succession. Also, ask students if they believe “successors” should be designated from outside of the Washington D.C. area, as it has been pointed out that a biological, chemical, or nuclear attack on the Capitol could theoretically wipe out all of the individuals on this list. If so, then who should be included on this list?

Activity 2 (15-25 Minutes)

1. Have students read Handout D: The Twenty-Fifth Amendment

Call students attention to Section 1 (which validates Tyler’s position that the vice-president truly does become the president upon the president leaving their position), Section 2 (which has been used twice to fill the vacant office of vice-president) and Section 3 (which has been used three times to allow the vice-president to be acting president due to a president undergoing a medical procedure)

1. Have students carefully examine Section 4, and inform students it is the only part of the Twenty-Fifth Amendment which has never been invoked.
2. Engage students in a classroom debate involving different hypothetical scenarios under which Section 4 of the Twenty-Fifth Amendment may be invoked and see if students believe it would be appropriate for the vice-president to become the acting president in each one. The teacher may provide for their own scenarios, or use or modify the ones provided below
   1. The President of the United States has suffered a massive heart attack and is unresponsive; doctors are unsure when the president will regain consciousness (this is a modified version of what could have happened during the Eisenhower presidency)
   2. The President of the United States has suffered a massive stroke and is confined to his bedroom. Although unable to walk and only with a limited ability to communicate, the president makes it clear that he intends to remain as president and continue to exercise the functions of his job (this is essentially what happened during the Wilson presidency)
   3. A member of the president’s immediate family has been kidnapped by terrorists and is being held hostage (this scenario is from the television show The West Wing, in the show, President Bartlett, played by Martin Sheen, voluntarily gives up power under the Twenty-Fifth Amendment, in this case, to the Speaker of the House, as the vice-presidency was vacant at the time)
   4. The president has been the victim of an assassination attempt, and while the president is undergoing emergency surgery, the vice-president has not yet made it back to the Capitol (this happened after the assassination attempt on President Reagan).
   5. Erratic statements and behavior of the president have called into question the president’s fitness for the position; although the president has received a clean bill of health from his physicians and has not stated he is unfit for office, the personal and private experiences his Cabinet members have witnessed have led them to conclude he is unable to fulfill his oath of office (this scenario was alleged to have been debated by the author of an anonymous op-ed article in the New York Times during the Trump presidency).
3. Point out to students that Section 4 of the Twenty-Fifth Amendment states “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide…” Ask students if they believe it might be more proper for “such other body as Congress may by law provide” to make the decision along with the vice-president that the president is incapacitated. Then, ask students who should comprise this body?

Conclusion (5 minutes)

1. Ask students how the US might be different had the Twenty-Fifth Amendment not been passed (most notably, there would not have been a Ford presidency, and most likely Carl Albert, the Speaker of the House of Representatives during the mid-1970’s, would have become president)
2. Ask students if they have any concerns over how Section 4 of the Twenty-Fifth Amendment could be used, and if so, what suggestions they might have for improvement of the process.

What Does 5th amendment prohibit quizlet?

Which amendment provides a blanket of protection for Americans?

Which case addressed the issue of whether the due process clause of the Fifth Amendment applies to actions of the states?

What unwritten right is protected by the Ninth Amendment?