Amendment 5 — Withdrawal Of Government Benefits

prev | next

Fifth Amendment :

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.

The line of cases begins with United States v. Sullivan,[1](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn1amd5 " 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, regardless of whether a good-faith erroneous assertion of the privilege could subject him to prosecution, a question not resolved. ") 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 Oliver Wendell Holmes stated for the Court.[2](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn2amd5 " 274 U.S. at 263–64. ") 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 . . . .” [3](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn3amd5 " Id. at 263. ") Using its taxing power to reach gambling activities over which it might otherwise not have had jurisdiction,[4](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn4amd5 " The expansion of the commerce power would now obviate reliance on the taxing power. ") 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 Internal Revenue Service (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) because the threshold decision to gamble was voluntary, the required disclosures were not compulsory, and (3) because registration required disclosure only of prospective conduct, the privilege, limited to past or present acts, did not apply.[5](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn5amd5 " 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,[6](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn6amd5 " 382 U.S. 70 (1965). ") 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 directed 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.” [7](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn7amd5 " 382 U.S. at 79. The decision was unanimous, with Justice Byron 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.[8](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn8amd5 " 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). ") Because of the pervasiveness of state laws prohibiting gambling, said Justice John Marshall 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.” [9](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn9amd5 " Marchetti, 390 U.S. at 48. ") 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.[10](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn10amd5 " “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. ") 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.[11](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn11amd5 " “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. ") 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 speculative and insubstantial.[12](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn12amd5 " Marchetti, 390 U.S. at 52–54. “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). ") 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.” [13](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn13amd5 " Marchetti, 390 U.S. at 57. ")

Most recent in this line of cases is California v. Byers,[14](https://www.law.cornell.edu/constitution-conan/amendment-5/withdrawal-of-government-benefits#fn14amd5 " 402 U.S. 424 (1971). ") 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 comp