Constitutional Law: Circuit Court Determines a Relationship Between First and Fifth Amendments in Context of Organizational Disclosure

Negating the Communist Party\u27s statutory obligation to disclose information inculpatory to its members on the basis of the fifth amendment privilege against self-incrimination, the Court of Appeals for the District of Columbia Circuit adopted a theory of fifth amendment applicability for first amendment groups. An examination of fifth amendment policies supporting this result provides a rationale for granting protection against compelled self-incrimination to all individuals in organizational roles

Foreword: Continuity in the Presidency: Gaps and Solutions

This symposium issue featuring a report and articles on the Twenty-Fifth Amendment and the presidential succession system is perfectly timed. Its release comes in the final month of the year that marked the fiftieth anniversary of the Twenty-Fifth Amendment’s ratification and at a moment of unprecedented public discussion of the Amendment. Yet, in Fordham Law School’s unique history with the Twenty-Fifth Amendment, auspicious timing is not unusual

Seeking Refuge in the Fifth Amendment: The Applicability of the Privilege Against Self-Incrimination to Individuals who Risk Incrimination Outside the United States

This Note argues that the Fifth Amendment privilege prohibits the U.S. government from compelling individuals to offer testimony that would incriminate them in criminal proceedings outside the United States. Part I explores the development of the Fifth Amendment\u27s privilege against self-incrimination. Part II discusses the conflicting positions that have emerged in lower courts concerning the Fifth Amendment\u27s extraterritorial application. Part III argues that the Fifth Amendment protection regarding self-incrimination should apply to the risk of non-U.S. prosecution. This Note concludes that the principles reflected in the enactment of the Fifth Amendment and its treatment in both U.S. and English courts warrant the extraterritorial application of the self-incrimination privilege

Constitutional Limitations on Firearms Regulation

The constitutional debate over firearms regulation is centered on the requirements of the fifth and second amendments to the United States Constitution. In discussing the questions that will confront any federal regulatory scheme, this note examines recent fifth amendment decisions and explores the origins of the second amendment, which has been infrequently interpreted. It is concluded that while artfully drawn legislation could avoid the fifth amendment objections posed by Haynes v. United States, the impact of the second amendment is uncertain because of the historical and decisional ambiguity surrounding that provision

Corporate Confessions

In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced, the Supreme Court has adopted a collective entity rule that corporate persons may not invoke Fifth Amendment privilege. Second,before itself confessing, the firm may encourage employees to provide statements to law enforcement, placing some in the precarious position of deciding whether to speak and inculpate themselves or invoke Fifth Amendment privilege and be disciplined or fired. The question then arises whether the Fifth Amendment protects such employees. This Article develops how the Fifth Amendment, as interpreted by the Supreme Court in its line of penalty cases, offers scant protection absent substantial formal cooperation between prosecutors and the employer. Instead, cooperation with internal investigators and law enforcement will be structured by employment contracts and a firm\u27s interest in avoiding conflicts of interest and formation of unintended attorney-client relationships between employees and corporate counsel. Thus, not only may the corporation confess, but the environment in which employee confessions occur is largely defined by interests of the corporation

The Fifth Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One

The fifth amendment\u27s privilege not to answer, critics carp, insulates the guilty defendant from revealing his complicity. While this is true, ironically it also can shackle the innocent defendant from attempting to prove that another person committed the crime. If that other person asserts the fifth amendment in response to questions designed to substitute him for the defendant, the innocent defendant can neither surmount that person\u27s assertion nor benefit therefrom. Consider this set of facts. A murder is committed. Defendant, charged with the crime, has evidence that Witness killed the victim. The prosecution believes only one person committed the crime. Witness, subpoenaed by the defense to testify during Defendant\u27s trial, informs defense counsel prior to trial that he will assert the fifth amendment and refuse to testify. In turn, defense counsel notifies the judge of Witness\u27 intent. The court conducts a hearing to learn whether Witness will exercise the fifth amendment privilege not to testify, and to decide whether he may do so. During the hearing, Witness refuses to answer questions, the truthful answers to which, the defense contends, would substitute Witness for Defendant as the culprit. In light of the defense\u27s startling contention and other evidence of Witness\u27 guilt that the defense unwraps, the court understandably accepts Witness\u27 claim that he might incriminate himself if he were to testify truthfully. Thus, the court holds that Witness need not testify

The Twenty-Fifth Amendment: Law, History, and Recommendations for Reform

Handout for The Twenty-Fifth Amendment: Law, History, and Recommendations for Reform.https://ir.lawnet.fordham.edu/twentyfifth_amendment_miscellaneous/1002/thumbnail.jp

Unlocking the Fifth Amendment: Passwords and Encrypted Devices

Each year, law enforcement seizes thousands of electronic devices—smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts. It measures this right against the legal right of law enforcement, armed with a warrant, to search the device that it has validly seized. Encryption cases present the unique hybrid scenario that link and entangle the Fourth and Fifth Amendments. In a sense, this Article explores whose rights should prevail. This Article proposes a novel settlement that draws upon the best aspects of Fourth and Fifth Amendment law: the government can compel a suspect to decrypt only those files it already knows she possesses. This rule follows from existing Fifth Amendment case law and, as a corollary to the fundamental nature of strong encryption, also represents the best accommodation of law enforcement needs against individual privacy

Twenty-Fifth Amendment: An Explanation and Defense, The

In this article, Dean Feerick reviews the history of presidential succession before the Twenty-fifth Amendment\u27s ratification, the debate and discussion leading to the amendment\u27s adoption, and current criticisms of the amendment from the medical and political community. In particular, Feerick addresses current suggestions for the creation of an independent medical panel to determine presidential inability. He argues that such a panel would be contrary to both the principle of separation of powers and the philosophy of the Twenty-fifth Amendment that those closest to the President ,and those accountable to the public, should be entrusted with the power to declare a President disabled. In sum, Feerick rejects arguments in favor of an additional constitutional amendment concerning presidential succession and concludes that the Twenty-fifth Amendment, as implemented today, remains the best possible scheme for the swift and efficient transition of presidential and vice presidential authority

The Bipartisan Bayh Amendment: Republican Contributions to the Twenty-Fifth Amendment

It is appropriate that Senator Birch Bayh has been widely recognized as the author and person most responsible for the Twenty-Fifth Amendment. His work was indispensable, and he was helped by other Democrats and nonpartisan actors including the American Bar Association and John D. Feerick, among others. Yet the Amendment was also the product of bipartisan cooperation. Important provisions were based on work done during the administration of President Dwight D. Eisenhower, and Eisenhower and his Attorney General, Herbert Brownell, played important roles in supporting Bayh’s proposal as did other Republicans in and out of Congress. Republicans like Representative Richard Poff pushed ideas and provisions that found their way into the Amendment, helped create important legislative history, and contributed in the legislative process. Bayh’s legislative contribution included the inclusive manner in which he operated, and many Republicans deserve credit for participating constructively in a process they could not direct. In describing the bipartisan character of the Bayh Amendment, this Article seeks to fill a void in scholarly writing since no prior work has this focus. It also uses the Twenty-Fifth Amendment as a case study of the sort of bipartisan effort on which any constitutional amendment depends. And it suggests that the dispositions that produced the Twenty-Fifth Amendment—in particular, communal problem solving based on a recognition of the need for interested parties to build from areas of agreement—would contribute to addressing other social problems