Modular design, or modularity in design, is a design principle that subdivides a system into smaller parts called modules (such as modular process skids), which can be independently created, modified, replaced, or exchanged with other modules or between different systems.
Overview
A modular design can be characterized by functional
partitioning into discrete scalable and reusable modules, rigorous use
of well-defined modular interfaces, and making use of industry standards
for interfaces. This partitioning makes standardization easier to
achieve, and product variability possible. In this context modularity is at the component level, and has a single
dimension, component slotability. A modular system with this limited
modularity is generally known as a platform system that uses modular
components. Examples are car platforms or the USB port in computer engineering platforms.
In design theory this is distinct from a modular system
which has higher dimensional modularity and degrees of freedom. A
modular system design has no distinct lifetime and exhibits flexibility
in at least three dimensions. In this respect modular systems are very
rare in markets. Mero architectural systems are the closest example to a modular system in terms of hard products in markets. Weapons platforms,
especially in aerospace, tend to be modular systems, wherein the
airframe is designed to be upgraded multiple times during its lifetime,
without the purchase of a completely new system. Modularity is best
defined by the dimensions effected or the degrees of freedom in form,
cost, or operation.
Modular design inherently combines the mass production advantages of standardization with those of customization.
The degree of modularity, dimensionally, determines the degree of
customization possible. For example, solar panel systems have
2-dimensional modularity which allows adjustment of an array in the x
and y dimensions. Further dimensions of modularity would be introduced
by making the panel itself and its auxiliary systems modular. Dimensions
in modular systems are defined as the effected parameter
such as shape or cost or lifecycle. Mero systems have 4-dimensional
modularity, x, y, z, and structural load capacity. As can be seen in any
modern convention space, the space frame's extra two dimensions of
modularity allows far greater flexibility in form and function than
solar's 2-d modularity. If modularity is properly defined and conceived
in the design strategy, modular systems can create significant
competitive advantage in markets. A true modular system does not need to
rely on product cycles to adapt its functionality to the current market
state. Properly designed modular systems also introduce the economic
advantage of not carrying dead capacity, increasing the capacity
utilization rate and its effect on cost and pricing flexibility.
Benefits and Drawbacks
Benefits
Modularity offers benefits such as reduction in:
Cost
Customization can be limited to a portion of the system, rather than needing an overhaul of the entire system
When modules are standardized, there are less parts in the
system, leading to reduced production time, and ease in inventory
management
Interoperability
Shorter learning time
Flexibility in design
It molds to the user's needs without calling for an entire system redesign
Non-generationally constrained augmentation or updating
Adding new solution by merely plugging in a new module
Exclusion
The ability to remove a module from system
Sustainability and minimized ecological harm
The expansion of product life (a system where only individual modules need changing or upgrading, not a full product discard)
Modularity in platform systems, offer benefits in:
Platform systems have enabled the wide use of system design
in markets and the ability for product companies to separate the rate
of the product cycle from the research and development paths.
Drawbacks
The biggest drawback with modular systems is the designer or engineer. Most designers are poorly trained in systems analysis
and most engineers are poorly trained in design. The design complexity
of a modular system is significantly higher than a platform system and
requires experts in design and product strategy during the conception
phase of system development. That phase must anticipate the directions
and levels of flexibility necessary in the system to deliver the modular
benefits. Modular systems could be viewed as more complete or holistic
design whereas platforms systems are more reductionist, limiting
modularity to components. Complete or holistic modular design requires a
much higher level of design skill and sophistication than the more
common platform system.
Platform systems
Cars, computers, process systems, solar panels, wind turbines, elevators, furniture, looms, railroad signaling systems, telephone exchanges, pipe organs, synthesizers, electric power distribution systems, drum sets,
and modular buildings are examples of platform systems using various
levels of component modularity. For example, one cannot assemble a solar
cube from extant solar components or easily replace the engine on a
truck or rearrange a modular housing unit into a different configuration
after a few years, as would be the case in a modular system. These key
characteristics make modular furniture incredibly versatile and
adaptable. The only extant examples of modular systems in today's market are some
software systems that have shifted away from versioning into a
completely networked paradigm.
The modular design of the Unimog offers attachment capabilities for various different implements.
Aspects of modular design can be seen in cars or other vehicles to the extent of there being certain parts to the car that can be added or removed without altering the rest of the car.
A simple example of modular design in cars is the fact
that, while many cars come as a basic model, paying extra will allow for
"snap in" upgrades such as a more powerful engine, vehicle audio, ventilated seats, or seasonal tires; these do not require any change to other units of the car such as the chassis, steering, electric motor or battery systems.
Modular design can be seen in certain buildings. Modular
buildings (and also modular homes) generally consist of universal parts
(or modules) that are manufactured in a factory and then shipped to a build site where they are assembled into a variety of arrangements.
Modular buildings can be added to or reduced in size by
adding or removing certain components. This can be done without altering
larger portions of the building. Modular buildings can also undergo
changes in functionality using the same process of adding or removing
components.
Modular workstations
For example, an office
building can be built using modular parts such as walls, frames, doors,
ceilings, and windows. The interior can then be partitioned (or
divided) with more walls and furnished with desks, computers, and
whatever else is needed for a functioning workspace. If the office needs
to be expanded or redivided to accommodate employees, modular
components such as wall panels can be added or relocated to make the
necessary changes without altering the whole building. Later, this same
office can be broken down and rearranged to form a retail space, conference hall
or another type of building, using the same modular components that
originally formed the office building. The new building can then be
refurnished with whatever items are needed to carry out its desired
functions.
Other types of modular buildings that are offered from a company like Allied Modular include a guardhouse, machine enclosure, press box, conference room, two-story building, clean room and many more applications.[5]
Many misconceptions are held regarding modular buildings. In reality modular construction is a viable method of construction for
quick turnaround and fast growing companies. Industries that would
benefit from this include healthcare, commercial, retail, military, and
multi-family/student housing.
Modular construction of space stations is favored to minimize payload mass, volume, and cost, increasing options for launch vehicles, and increasing redundancy. The Soviet and Russian Mir space station from 1986 was the first to use an assembly of modules berthed together, with a total of six pressurized modules by 1996. This was followed by the International Space Station from 2000, with 16 major pressurized modules. From 2021, China constructed the Tiangong space station, with three modules. The Lunar Gateway was a cancelled modular space station in lunar near-rectilinear halo orbit, conceptualized by NASA and partners from 2017 to 2026, superseded by plans for a moonbase.
Modules can also be closed off, such as following the cargo spacecraft collision with Mir's Spektr in 1997, removed for deorbiting, such as of the ISS's Pirs module in 2021, or split of into a new station, as is planned for the ISS's Nauka to form the Russian Orbital Station.
In computer hardware
Modular computer design
Modular design in computer hardware is the same as in other
things (e.g. cars, refrigerators, and furniture). The idea is to build
computers with easily replaceable parts that use standardized interfaces.
This technique allows a user to upgrade certain aspects of the computer
easily without having to buy another computer altogether.
The idea of a modular smartphone was explored in Project Ara,
which provided a platform for manufactures to create modules for a
smartphone which could then be customised by the end user. The Fairphone uses a similar principle, where the user can purchase individual parts to repair or upgrade the phone.
In televisions
In 1963 Motorola introduced the first rectangular color picture tube, and in 1967 introduced the modular Quasar
brand. In 1964 it opened its first research and development branch
outside of the United States, in Israel under the management of Moses
Basin. In 1974 Motorola sold its television business to the Japan-based Matsushita, the parent company of Panasonic.
The concept of modular design has become popular with trade show exhibits and retail promotional displays.
These kind of promotional displays involve creative custom designs but
need a temporary structure that can be reusable. Thus many companies are
adapting to the Modular way of exhibit design. In this they can use pre
engineered modular systems that act as building blocks to creative a
custom design. These can then be reconfigured to another layout and
reused for a future show. This enables the user to reduce cost of
manufacturing and labor (for set up and transport) and is a more
sustainable way of creating experiential set ups.
Designing for Modularity
General steps on how modular design is approached by designers:
Setting an objective
Clarifying the intended aim of the modular design
System and/or product analysis
Clarifying what the different systems are and how the modules work together or how they could work together
Understand how the different parts can be grouped together to improve the features and functionalities
Defining the modular interface
How the modules interact with each other and how they attach
Gives an evaluation of the product in an applied manner
Tests the features and if the modules work
Overall guidelines, based on a research done by Georgy
Klushin, Clement Fortin and Zeljko Tekic, are grounded in setting a
strategic objective, establishing a hierarchy,
determining the drivers for modularization, applying relevant
modularization principles, and using metrics to support the development
process. The modular structure of new products with many different
applications, use this method to help with designing and development.
With this modular design guideline, the development process can begin,
and specific modular design techniques can be implemented
simultaneously.
An important modularization method is the Modular Function
Deployment (MFD), which is defined in an article by Fabio Marco Monetti
as a method concentrated on establishing the system's structural
elements, which include modules and interfaces. This method's drawback
however is that it neglects any information about how a part may be
manufactured or how the different parts will be assembled. This
neglected aspect causes the product to be lower quality while also
potentially increasing the production cost. This is why the MDF is
paired with the Design For Assembly (DFA) method. This second method
allows the assembly to be simplified through part reduction and system
optimization. Th combination of these two methods calls for more
cross-industry collaboration to be done, so they call be implemented
optimally and efficiently.
Product lifecycle management is a strategy for efficiently managing information about a product (and product families, platforms, modules, and parts) during its product lifecycle. Researchers have described how integrating a digital twin—a digital representation of a physical product—with modular design can improve product lifecycle management.
Integrating life-cycle and energy assessments into modular design
Some authors observe that modular design has generated in
the vehicle industry a constant increase of weight over time. Trancossi
advanced the hypothesis that modular design can be coupled by some
optimization criteria derived from the constructal law. In fact, the constructal law is modular for his nature and can apply with interesting results in engineering simple systems. It applies with a typical bottom-up optimization schema:
a system can be divided into subsystems (elemental parts) using tree models;
any complex system can be represented in a modular way
and it is possible to describe how different physical magnitudes flow
through the system;
analyzing the different flowpaths it is possible to identify the critical components that affect the performance of the system;
by optimizing those components and substituting them with
more performing ones, it is possible to improve the performances of the
system.
A better formulation has been produced during the MAAT EU FP7 Project. A new design method that couples the above bottom-up optimization with a preliminary system level top-down design has been formulated. The two step design process has been motivated by considering that
constructal and modular design does not refer to any objective to be
reached in the design process. A theoretical formulation has been
provided in a 2015 paper, and applied with success to the design of a small aircraft, the conceptual design of innovative commuter aircraft, the design of a new entropic wall, and an innovative off-road vehicle designed for energy efficiency.
The Supreme Court has extended most, but not all, rights of the Fifth Amendment to the state and local levels. This means that neither the federal, state, nor local governments
may deny people most rights protected by the Fifth Amendment. The Court
furthered most protections of this amendment through the Due Process Clause of the Fourteenth Amendment.
One provision of the Fifth Amendment requires that most felonies be tried only upon indictment by a grand jury, which the Court ruled does not apply to the state level. Another provision, the Double Jeopardy Clause, provides the right of defendants to be tried only once in federal court for the same offense. The Self-Incrimination
clause provides various protections against self-incrimination,
including the right of an individual not to serve as a witness in a
criminal case in which he or she is a defendant. "Pleading the Fifth" is
a colloquial term often used to invoke the Self-Incrimination Clause
when witnesses decline to answer questions where the answers might
incriminate them. In the 1966 landmark case Miranda v. Arizona, the Supreme Court held that the Self-Incrimination Clause requires the police to issue a Miranda warning
to criminal suspects interrogated while in police custody. The Fifth
Amendment also contains the Takings Clause, which allows the federal
government to take private property only for public use and only if it provides "just compensation".
Like the Fourteenth Amendment, the Fifth Amendment includes
a due process clause stating that no person shall "be deprived of life,
liberty, or property, without due process of law". The Fifth
Amendment's Due Process Clause
applies to the federal government, while the Fourteenth Amendment's Due
Process Clause applies to state governments (and by extension, local governments). The Supreme Court has interpreted the Fifth Amendment's Due Process Clause to provide two main protections: procedural due process, which requires government officials to follow fair procedures before depriving a person of life, liberty, or property, and substantive due process, which protects certain fundamental rights from government interference. The Supreme Court has also held that the Due Process Clause contains a prohibition against vague laws and an implied equal protection requirement similar to the Fourteenth Amendment's Equal Protection Clause.
Text
The amendment as ratified by the states:
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 offense 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
hand-written copy of the proposed Bill of Rights, cropped to show just
the text that would later be ratified as the Fifth Amendment
On June 8, 1789, Congressman James Madison introduced several proposed constitutional amendments during a speech to the House of Representatives. His draft language that later became the Fifth Amendment was as follows:
No person shall be subject, except in
cases of impeachment, to more than one punishment or trial for the same
offense; nor shall be compelled to be a witness against himself; nor be
deprived of life, liberty, or property, without due process of law; nor
be obliged to relinquish his property, where it may be necessary for
public use, without just compensation....Except
in cases of impeachments, and cases arising in the land or naval
forces, or the militia when on actual service, in time of war or public
danger...
in all crimes punishable with loss of life or member, presentment or
indictment by a grand jury shall be an essential preliminary...
This draft was edited by Congress; all the material before
the first ellipsis was placed at the end, and some of the wording was
modified. After approval by Congress, the amendment was ratified by the
states on December 15, 1791, as part of the Bill of Rights.
Every one of the five clauses in the final amendment appeared in
Madison's draft, and in their final order those clauses are: the Grand Jury Clause (which Madison had placed last); the Double Jeopardy Clause; the Self Incrimination Clause; the Due Process Clause; and, the Takings Clause.
The Grand Jury Clause limits governmental powers focusing on criminal procedures, because, as stated by the U.S. Supreme Court in United States v. Cotton
(2002), "the Fifth Amendment grand jury right serves a vital function
in providing for a body of citizens that acts as a check on
prosecutorial power. No doubt that is true. See, e. g., 3 Story, Commentaries on the Constitution
§ 1779 (1883), reprinted in 5 The Founders' Constitution 295 (P.
Kurland & R. Lerner eds. 1987). But that is surely no less true of
the Sixth Amendment right to a petit jury, which, unlike the grand jury, must find guilt beyond a reasonable doubt." The grand jury is a pre-constitutional common law institution. The Supreme Court ruled against incorporating this right (extending it to the states) in Hurtado v. People of California,
110 U.S. 516 (1884). Most states have an alternative civil process.
"Although state systems of criminal procedure differ greatly among
themselves, the grand jury is similarly guaranteed by many state
constitutions and plays an important role in fair and effective law
enforcement in the overwhelming [p688] majority of the States."
Branzburg v. Hayes (No. 70-85) 1972. Grand juries, which return indictments in many criminal cases, are composed of a jury of peers and operate in closed deliberation proceedings; they are given specific instructions regarding the law
by the judge. Many constitutional restrictions that apply in court or
in other situations do not apply during grand jury proceedings. For
example, the exclusionary rule
does not apply to certain evidence presented to a grand jury; the
exclusionary rule states that evidence obtained in violation of the Fourth, Fifth or Sixth amendments cannot be introduced in court.
Currently, federal law permits the trial of misdemeanors without indictments. Additionally, in trials of non-capital felonies, the prosecution may
proceed without indictments if the defendants waive their Fifth
Amendment right.
Grand jury indictments may be amended by the prosecution only in limited circumstances. In Ex Parte Bain, 121U.S.1(1887), the Supreme Court held that the indictment could not be changed at all by the prosecution. United States v. Miller, 471U.S.130(1985) partly reversed Ex parte Bain;
now, an indictment's scope may be narrowed by the prosecution. Thus,
lesser included charges may be dropped, but new charges may not be
added.
The Grand Jury Clause of the Fifth Amendment does not
protect those serving in the armed forces, whether during wartime or
peacetime. Members of the state militia called up to serve with federal
forces are not protected under the clause either. In O'Callahan v. Parker, 395U.S.258(1969),
the Supreme Court held that only charges relating to service may be
brought against members of the militia without indictments. As a
decision, O'Callahan, however, lived for a limited
duration and was more a reflection of Justice William O. Douglas's
distrust of presidential power and anger at the Vietnam Conflict. O'Callahan
was overturned in 1987, when the Court held that members of the militia
in actual service may be tried for any offense without indictments.
The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment. This means the grand jury requirement applies only to felony charges in the federal court system. While many states do
employ grand juries, no defendant has a Fifth Amendment right to a
grand jury for criminal charges in state court. States are free to
abolish grand juries, and many (though not all) have replaced them with preliminary hearing.
Infamous crime
Whether a crime is "infamous", for purposes of the Grand
Jury Clause, is determined by the nature of the punishment that may be
imposed, not the punishment that is actually imposed; however, crimes punishable by death must be tried upon indictments. The historical origin of "infamous crime" comes from the infamia, a punishment under Roman law by which a citizen was deprived of his citizenship. In United States v. Moreland, 258U.S.433(1922),
the Supreme Court held that incarceration in a prison or penitentiary,
as opposed to a correction or reformation house, attaches infamy to a
crime. In Mackin v. United States, 117U.S.348(1886),
the Supreme Court judged that "'Infamous crimes' are thus, in the most
explicit words, defined to be those 'punishable by imprisonment in the
penitentiary'", while it later in Green v. United States356U.S.165(1957)
stated that "imprisonment in a penitentiary can be imposed only if a
crime is subject to imprisonment exceeding one year." Therefore, an
infamous crime is one that is punished by imprisonment for over one
year. Susan Brown, a former defense attorney and Professor of Law at the
University of Dayton School of Law, concluded: "Since this is essentially the definition of a felony, infamous crimes translate as felonies."
... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...
The Double Jeopardy Clause encompasses four distinct
prohibitions: subsequent prosecution after acquittal, subsequent
prosecution after conviction, subsequent prosecution after certain
mistrials, and multiple punishment in the same indictment. Jeopardy applies when the jury is empaneled in a jury trial, when the
first witness is sworn in during a bench trial, or when a plea is
rendered.
Prosecution after acquittal
The government is not permitted to appeal or try again after the entry of an acquittal, whether a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), or an "implied acquittal" via conviction of a lesser included offense. In addition, the government is barred by collateral estoppel from re-litigating against the same defense, a fact necessarily found by the jury in a prior acquittal, even if the jury hung on other counts.
This principle does not prevent the government from appealing a pre-trial motion to dismiss or other non-merits dismissal, or a directed verdict after a jury conviction, nor does it prevent the trial judge from entertaining a motion for
reconsideration of a directed verdict, if the jurisdiction has so
provided by rule or statute. Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency, including habeas, or "thirteenth juror" appellate reversals notwithstanding sufficiency on the principle that jeopardy has not "terminated". There is also an exception for judicial bribery in a bench trial.
Multiple punishment, including prosecution after conviction
In Blockburger v. United States
(1932), the Supreme Court announced the following test: the government
may separately try to punish the defendant for two crimes if each crime
contains an element that the other does not. Blockburger is the default rule, unless the legislature intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.
The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction. In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was satisfied, but Grady was overruled in United States v. Dixon (1993).
Prosecution after mistrial
The rule for mistrials
depends upon who sought the mistrial. If the defendant moves for a
mistrial, there is no bar to retrial, unless the prosecutor acted in
"bad faith", i.e., goaded the defendant into moving for a mistrial
because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if
the trial judge finds "manifest necessity" for granting the mistrial. The same standard governs mistrials granted sua sponte.
Prosecution in different states
In Heath v. Alabama
(1985), the Supreme Court held that the Fifth Amendment rule against
double jeopardy does not prohibit two different states from separately
prosecuting and convicting the same individual for the same illegal act.
"Take the fifth" redirects here. For the song by Spoon, see Girls Can Tell.
The Fifth Amendment protects individuals from being forced to incriminate themselves.
Incriminating oneself is defined as exposing oneself (or another
person) to "an accusation or charge of crime", or as involving oneself
(or another person) "in a criminal prosecution or the danger thereof". The privilege
against compelled self-incrimination is defined as "the constitutional
right of a person to refuse to answer questions or otherwise give
testimony against himself". To "plead the Fifth" is to refuse to answer any question because "the
implications of the question, in the setting in which it is asked" lead a
claimant to possess a "reasonable cause to apprehend danger from a
direct answer", believing that "a responsive answer to the question or
an explanation of why it cannot be answered might be dangerous because
injurious disclosure could result."
Historically, the legal protection against compelled
self-incrimination was directly related to the question of torture for
extracting information and confessions.
The legal shift away from widespread use of torture and forced confession dates to the turmoil of the late 16th and early 17th century in England.
The Supreme Court of the United States
has held that "a witness may have a reasonable fear of prosecution and
yet be innocent of any wrongdoing. The privilege serves to protect the
innocent who otherwise might be ensnared by ambiguous circumstances."
However, Professor James Joseph Duane of the Regent University School of Law argues that the Supreme Court, in a 5–4 decision in Salinas v. Texas, significantly weakened the privilege, saying "your choice to use the
Fifth Amendment privilege can be used against you at trial depending
exactly how and where you do it."
In the Salinas case, Justices Alito,
Roberts, and Kennedy held that "the Fifth Amendment's privilege against
self-incrimination does not extend to defendants who simply decide to
remain mute during questioning. Long-standing judicial precedent has
held that any witness who desires protection against self-incrimination
must explicitly claim that protection."
Justice Thomas, siding with Alito, Roberts and Kennedy, in
a separate opinion, held that, "Salinas' Fifth Amendment privilege
would not have been applicable even if invoked because the prosecutor's
testimony regarding his silence did not compel Salinas to give
self-incriminating testimony." Justice Antonin Scalia joined Thomas'
opinion.
Legal proceedings and congressional hearings
The Fifth Amendment privilege against compulsory
self-incrimination applies when an individual is called to testify in a
legal proceeding. The Supreme Court ruled that the privilege applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court, and whether the proceeding itself is criminal or civil.
The right to remain silent was asserted at grand jury or congressional hearings in the 1950s, when witnesses testifying before the House Committee on Un-American Activities or the Senate Internal Security Subcommittee claimed the right in response to questions concerning their alleged membership in the Communist Party. Under the Red Scare hysteria at the time of McCarthyism, witnesses who refused to answer the questions were described by McCarthy as "fifth amendment communists". They lost jobs or positions in unions and other political
organizations, and suffered other repercussions after "taking the
Fifth".
Senator Joseph McCarthy
(R-WI) routinely asked witnesses, "Are you now, or have you ever been, a
member of the Communist Party?" while he was chairman of the Senate
Government Operations Committee Permanent Subcommittee on
Investigations. Admitting to a previous Communist Party membership was
not sufficient. Witnesses were also required to "name names", i.e.
implicate others they knew to be Communists or who had been Communists
in the past. Academy Award winning director Elia Kazan testified before the House Committee on Un-American Activities
that he had belonged to the Communist Party briefly in his youth. He
also "named names", which incurred enmity of many in Hollywood. Other
entertainers such as Zero Mostel found themselves on a Hollywood blacklist after taking the Fifth, and were unable to find work for a while in show business.
The amendment has also been used by defendants and witnesses in criminal cases involving the American Mafia.
Statements made to non-governmental entities
The privilege against self-incrimination does not protect
an individual from being suspended from membership in a
non-governmental, self-regulatory organization (SRO), such as the New York Stock Exchange
(NYSE), where the individual refuses to answer questions posed by the
SRO. An SRO itself is not a law enforcement entity or court of law, and
cannot send a person to jail. SROs, such as the NYSE and the National Association of Securities Dealers (NASD), are generally not considered to be state actors. See United States v. Solomon, D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., and Marchiano v. NASD. SROs also lack subpoena powers. They rely heavily on requiring
testimony from individuals by wielding the threat of loss of membership
or a bar from the industry (permanent, if decided by the NASD) when the
individual asserts the Fifth Amendment privilege against compelled
self-incrimination. If a person chooses to provide statements in
testimony to the SRO, the SRO may provide information about those
statements to law enforcement agencies, who may then use the statements
in a prosecution of the individual.
Custodial interrogation
The Fifth Amendment limits the use of evidence obtained illegally by law enforcement officers. Originally, at common law, even a confession obtained by torture
was admissible. However, by the eighteenth century, common law in
England provided that coerced confessions were inadmissible. The common
law rule was incorporated into American law by the courts. The Supreme
Court has repeatedly overruled convictions based on such confessions, in
cases such as Brown v. Mississippi, 297U.S.278(1936).
Law enforcement responded by switching to more subtle
techniques, but the courts held that such techniques, even if they do
not involve physical torture, may render a confession involuntary and
inadmissible. In Chambers v. Florida
(1940) the Court held a confession obtained after five days of
prolonged questioning, during which time the defendant was held
incommunicado, to be coerced. In Ashcraft v. Tennessee (1944), the suspect had been interrogated continuously for thirty-six hours under electric lights. In Haynes v. Washington, the Court held that an "unfair and inherently coercive context"
including a prolonged interrogation rendered a confession inadmissible.
Miranda v. Arizona (1966) was a landmark case involving confessions. Ernesto Miranda
had signed a statement confessing to the crime, but the Supreme Court
held that the confession was inadmissible because the defendant had not
been advised of his rights. The Court held "the prosecution may not use
statements... stemming from
custodial interrogation of the defendant unless it demonstrates the use
of procedural safeguards effective to secure the privilege against
self-incrimination." Custodial interrogation is initiated by law
enforcement after a person has been taken into custody or otherwise
deprived of his freedom of movement before being questioned as to the
specifics of the crime. As for the procedural safeguards to be employed,
unless other fully effective means are devised to inform accused
persons of their right of silence and to assure a continuous opportunity
to exercise it, the following measures are required. Before any
questioning, the person must be warned that he has a right to remain
silent, that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either
retained or appointed.
The warning Chief Justice Earl Warren referred to is now called the Miranda warning, and it is customarily delivered by the police to an individual before questioning. Miranda
has been clarified by several further Supreme Court rulings. For the
warning to be necessary, the questioning must be conducted under
"custodial" circumstances. A person detained in jail or under arrest is,
of course, deemed to be in police custody. Alternatively, a person who
is under the reasonable belief that he may not freely
leave from the restraint of law enforcement is also deemed to be in
"custody". That determination of "reasonableness" is based on a totality
of the objective circumstances. A mere presence at a police station may
not be sufficient, but neither is such a presence required. Traffic
stops are not deemed custodial. The Court has ruled that age can be an
objective factor. In Yarborough v. Alvarado (2004), the Court held that "a state-court decision that failed to mention a 17-year-old's age as part of the Miranda custody analysis was not objectively unreasonable". In her concurring opinion Justice O'Connor wrote that a suspect's age may indeed "be relevant to the 'custody' inquiry"; the Court did not find it relevant in the specific case of Alvarado. The Court affirmed that age could be a relevant and objective factor in J.D.B. v. North Carolina
where they ruled that "so long as the child's age was known to the
officer at the time of police questioning, or would have been
objectively apparent to a reasonable officer, its inclusion in the
custody analysis is consistent with the objective nature of that test".
The questioning does not have to be explicit to trigger Miranda
rights. For example, two police officers engaging in a conversation
designed to elicit an incriminating statement from a suspect would
constitute questioning. A person may choose to waive his Miranda rights, but the prosecution has the burden of showing that such a waiver was actually made.
A confession not preceded by a Miranda
warning where one was necessary cannot be admitted as evidence against
the confessing party in a judicial proceeding. The Supreme Court,
however, has held that if a defendant voluntarily testifies at the trial
that he did not commit the crime, his confession may be introduced to
challenge his credibility, to "impeach" the witness, even if it had been
obtained without the warning.
In June 2010, the Supreme Court ruled in Berghuis v. Thompkins that a criminal suspect must now invoke the right to remain silent unambiguously. Unless and until the suspect actually states that he is relying on that
right, police may continue to interact with (or question) him, and any
voluntary statement he makes can be used in court. The mere act of
remaining silent is, on its own, insufficient to imply the suspect has
invoked those rights. Furthermore, a voluntary reply, even after lengthy
silence, can be construed as implying a waiver. The new rule will defer
to police in cases where the suspect fails to assert the right to
remain silent. This standard was extended in Salinas v. Texas in 2013 to cases where individuals not in custody who volunteer to answer officers' questions and who are not told their Miranda
rights. The Court stated that there was no "ritualistic formula"
necessary to assert this right, but that a person could not do so "by
simply standing mute".
Production of documents
Under the Act of Production Doctrine, the act of an
individual in producing documents or materials (e.g., in response to a
subpoena) may have a "testimonial aspect" for purposes of the
individual's right to assert the Fifth Amendment right against
self-incrimination to the extent that the individual's act of production
provides information not already in the hands of law enforcement
personnel about the (1) existence; (2) custody; or (3) authenticity, of
the documents or materials produced. See United States v. Hubbell. In Boyd v. United States, the U.S. Supreme Court stated that "It is equivalent to a compulsory
production of papers to make the nonproduction of them a confession of
the allegations which it is pretended they will prove".
By corporations
Corporations may also be compelled to maintain and turn
over records; the Supreme Court has held that the Fifth Amendment
protections against self-incrimination extend only to "natural persons". The Court has also held that a corporation's custodian of records can be forced to produce corporate documents even if the act of production would incriminate him personally. The only limitation on this rule is that the jury cannot be told that
the custodian personally produced those documents in any subsequent
prosecution of him, but the jury is still allowed to draw adverse
inferences from the content of the documents combined with the position
of the custodian in the corporation.
Refusal to testify in a criminal case
In Griffin v. California (1965), the Supreme Court ruled that a prosecutor may not ask the jury to draw an inference of guilt from a defendant's refusal to testify
in his own defense. The Court overturned a provision of the California
state constitution that explicitly granted such power to prosecutors,
finding it unconstitutional.
Refusal to testify in a civil case
While defendants are entitled to assert the right against
compelled self-incrimination in a civil court case, there are
consequences to the assertion of the right in such an action.
The Supreme Court has held that "the Fifth Amendment does
not forbid adverse inferences against parties to civil actions when they
refuse to testify in response to probative evidence offered against
them." Baxter v. Palmigiano, "[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, 'Silence is often evidence of the most persuasive character.'" "'Failure to contest an assertion... is considered evidence of acquiescence... if it would have been natural under the circumstances to object to the assertion in question.'"
In Baxter, the state was entitled to an
adverse inference against Palmigiano because of the evidence against him
and his assertion of the Fifth Amendment right.
Some civil cases are considered "criminal cases" for the purposes of the Fifth Amendment. In Boyd v. United States,
the U.S. Supreme Court stated that "A proceeding to forfeit a person's
goods for an offence against the laws, though civil in form, and whether
in rem or in personam, is a "criminal case" within the meaning of that
part of the Fifth Amendment which declares that no person "shall be
compelled, in any criminal case, to be a witness against himself."
In United States v. Lileikis, the court ruled that Aleksandras Lileikis was not entitled to Fifth Amendment protections in a civil denaturalization case even though he faced criminal prosecution in Lithuania, the country that he would be deported to if denaturalized.
Federal income tax
In some cases, individuals may be legally required to file
reports that call for information that may be used against them in
criminal cases. In United States v. Sullivan, the United States Supreme Court ruled that a taxpayer could not invoke
the Fifth Amendment's protections as the basis for refusing to file a
required federal income tax return. The Court stated: "If the form of
return provided called for answers that the defendant was protected from
making[,] he could have raised the objection in the return, but could
not on that account refuse to make any return at all. We are not called
on to decide what, if anything, he might have withheld."
In Garner v. United States, the defendant was convicted of crimes involving a conspiracy to "fix"
sporting contests and to transmit illegal bets. During the trial the
prosecutor introduced, as evidence, the taxpayer's federal income tax
returns for various years. In one return the taxpayer had shown his
occupation to be "professional gambler". In various returns the taxpayer
had reported income from "gambling" or "wagering". The prosecution used
this to help contradict the taxpayer's argument that his involvement
was innocent. The taxpayer tried unsuccessfully to keep the prosecutor
from introducing the tax returns as evidence, arguing that since the
taxpayer was legally required to report the illegal income on the
returns, he was being compelled to be a witness against himself. The
Supreme Court agreed that he was legally required to report the illegal income
on the returns, but ruled that the right against self-incrimination
still did not apply. The Court stated that "if a witness under
compulsion to testify makes disclosures instead of claiming the right,
the Government has not 'compelled' him to incriminate himself."
Sullivan and Garner
are viewed as standing, in tandem, for the proposition that on a
required federal income tax return a taxpayer would probably have to
report the amount of the illegal income, but might validly claim the
right by labeling the item "Fifth Amendment" (instead of "illegal
gambling income", "illegal drug sales", etc.) The United States Court of Appeals for the Eleventh Circuit has stated:
"Although the source of income might be privileged, the amount must be
reported." The U.S. Court of Appeals for the Fifth Circuit has stated: "...the amount of a taxpayer's income is not privileged even though the source
of income may be, and Fifth Amendment rights can be exercised in
compliance with the tax laws 'by simply listing his alleged ill-gotten
gains in the space provided for "miscellaneous" income on his tax
form'." In another case, the Court of Appeals for the Fifth Circuit stated: "While the source
of some of [the defendant] Johnson's income may have been privileged,
assuming that the jury believed his uncorroborated testimony that he had
illegal dealings in gold in 1970 and 1971, the amount of his income was not privileged and he was required to pay taxes on it." In 1979, the U.S. Court of Appeals for the Tenth Circuit stated: "A careful reading of Sullivan and Garner,
therefore, is that the self-incrimination privilege can be employed to
protect the taxpayer from revealing the information as to an illegal
source of income, but does not protect him from disclosing the amount of
his income."
Grants of immunity
If the government gives an individual immunity, then that
individual may be compelled to testify. Immunity may be "transactional
immunity" or "use immunity"; in the former, the witness is immune from
prosecution for offenses related to the testimony; in the latter, the
witness may be prosecuted, but his testimony may not be used against
him. In Kastigar v. United States, the Supreme Court held that the government need only grant use immunity
to compel testimony. The use immunity, however, must extend not only to
the testimony made by the witness, but also to all evidence derived
therefrom. This scenario most commonly arises in cases related to organized crime.
Record keeping
A statutorily required record-keeping system may go too
far such that it implicates a record-keeper's right against
self-incrimination. A three part test laid out by Albertson v. Subversive Activities Control Board, is used to determine this: 1. the law targets a highly selective group
inherently suspect of criminal activities; 2. the activities sought to
be regulated are already permeated with criminal statutes as opposed to
essentially being non-criminal and largely regulatory; and 3. the
disclosure compelled creates a likelihood of prosecution and is used
against the record-keeper. In this case, the Supreme Court struck down
an order by the Subversive Activities Control Board requiring members of the Communist Party
to register with the government and upheld an assertion of the
privilege against self-incrimination, on the grounds that statute under
which the order had been issued was "directed at a highly selective
group inherently suspect of criminal activities."
In Haynes v. United States, the Supreme Court ruled that a provision of the National Firearms Act that required registration of guns made or acquired in violation of the act constituted a form of self-incrimination and was therefore unconstitutional.
Combinations and passwords
While no such case has yet arisen, the Supreme Court has
indicated that a respondent cannot be compelled to turn over "the
contents of his own mind", e.g. the password to a bank account.
Lower courts have given conflicting decisions on whether
forced disclosure of computer passwords is a violation of the Fifth
Amendment.
In In re Boucher (2009), the US District Court of Vermont
ruled that the Fifth Amendment might protect a defendant from having to
reveal an encryption password, or even the existence of one, if the
production of that password could be deemed a self-incriminating "act"
under the Fifth Amendment. In Boucher, production of
the unencrypted drive was deemed not to be a self-incriminating act, as
the government already had sufficient evidence to tie the encrypted data
to the defendant.
In January 2012 a federal judge in Denver ruled that a
bank-fraud suspect was required to give an unencrypted copy of a laptop
hard drive to prosecutors. However, in February 2012 the Eleventh Circuit
ruled otherwise—finding that requiring a defendant to produce an
encrypted drive's password would violate the Constitution, becoming the
first federal circuit court to rule on the issue. In April 2013, a District Court magistrate judge
in Wisconsin refused to compel a suspect to provide the encryption
password to his hard drive after FBI agents had unsuccessfully spent
months trying to decrypt the data. The Oregon Supreme Court
ruled that unlocking a phone with a passcode is testimonial under
Article I, section 12 of the state constitution, thus compelling it
would be unconstitutional. Its ruling implied, however, that unlocking
via biometrics may be allowed.
Employer coercion
As a condition of employment, workers may be required to
answer their employer's narrowly defined questions regarding conduct on
the job. If an employee invokes the Garrity rule (sometimes called the Garrity Warning or Garrity Rights) before answering the questions, then the answers cannot be used in criminal prosecution of the employee. This principle was developed in Garrity v. New Jersey, 385 U.S. 493 (1967). The rule is most commonly applied to public employees such as police officers.
The "Takings Clause", the last clause of the Fifth Amendment, limits the power of eminent domain
by requiring "just compensation" be paid if private property is taken
for public use. It was the only clause in the Bill of Rights drafted
solely by James Madison and not previously recommended to him by other
constitutional delegates or a state ratifying convention. It was likely adopted in response to the Continental Army's practice of seizing military supplies, without compensation, during the Revolutionary War.
The Takings Clause originally applied only to the federal government resources and federal government, but the U.S. Supreme Court ruled in the 1897 case Chicago, B. & Q. Railroad Co. v. Chicago that the Fourteenth Amendment
incidentally extended the effects of that provision to the states.
During the 19th Century, the power of eminent domain could only be
exercised, generally, if the property condemned would literally be used
by the public, such as for a road, a ferry, a mill, or a government
building. Over time, however, the federal courts adopted a more expansive interpretation of "public use" as meaning any "public benefit," and the courts have deferred to the legislature's determination regarding what constitutes a "public use."
Pennsylvania Coal Co. v. Mahon overturned a Pennsylvania statute prohibiting coal mining that could undermine a home's foundation for takings of a corporation's property without compensation. The owner of the property that is taken by the government must be
justly compensated. When determining the amount that must be paid, the
government does not need to take into account any speculative schemes in
which the owner claims the property was intended to be used. Normally,
the fair market value
of the property determines "just compensation". If the property is
taken before the payment is made, interest accrues (though the courts
have refrained from using the term "interest").
Property under the Fifth Amendment includes contractual rights stemming from contracts between the United States, a U.S. state
or any of its subdivisions and the other contract partner(s), because
contractual rights are property rights for purposes of the Fifth
Amendment. The United States Supreme Court held in Lynch v. United States,
292 U.S. 571 (1934) that valid contracts of the United States are
property, and the rights of private individuals arising out of them are
protected by the Fifth Amendment. The court said: "The Fifth Amendment
commands that property be not taken without making just compensation.
Valid contracts are property, whether the obligor be a private
individual, a municipality, a state, or the United States. Rights
against the United States arising out of a contract with it are
protected by the Fifth Amendment. United States v. Central Pacific R. Co., 118 U. S. 235, 238; United States v. Northern Pacific Ry. Co.,
256 U. S. 51, 64, 67. When the United States enters into contract
relations, its rights and duties therein are governed generally by the
law applicable to contracts between private individuals."
Some legal scholars have also criticized the Supreme
Court's recent trends toward defining property interests with reference
to generalized property law rather than state-specific law, which may
reduce protections under the Takings Clause by making it harder for
property owners to identify compensable interests.
The federal courts have not restrained state and local
governments from seizing privately owned land for private commercial
development on behalf of private developers. This was upheld on June 23,
2005, when the Supreme Court issued its opinion in Kelo v. City of New London. This 5–4 decision remains controversial. The majority opinion, by Justice Stevens,
found that it was appropriate to defer to the city's decision that the
development plan had a public purpose, saying that "the city has
carefully formulated a development plan that it believes will provide
appreciable benefits to the community, including, but not limited to,
new jobs and increased tax revenue." Justice Kennedy's concurring
opinion observed that in this particular case the development plan was
not "of primary benefit to... the developer" and that if that was the case the plan might have been impermissible. In the dissent, Justice Sandra Day O'Connor
argued that this decision would allow the rich to benefit at the
expense of the poor, asserting that "Any property may now be taken for
the benefit of another private party, but the fallout from this decision
will not be random. The beneficiaries are likely to be those citizens
with disproportionate influence and power in the political process,
including large corporations and development firms." She argued that the
decision eliminates "any distinction between private and public use
of property—and thereby effectively delete[s] the words 'for public
use' from the Takings Clause of the Fifth Amendment". A number of
states, in response to Kelo, have passed laws and/or
state constitutional amendments which make it more difficult for state
governments to seize private land. Takings that are not "for public use"
are not directly covered by the doctrine, however such a taking might violate due process rights under the Fourteenth Amendment, or other applicable law.
Although the Takings Clause applies when the government
formally condemns property pursuant to its power of eminent domain, it
also applies to any exercise of government authority that has the effect
of "taking" a person's property. For instance, if the government builds
a dam that floods private property, the owner is entitled to
compensation Non-eminent domain takings can either be physical or regulatory. A regulatory taking
involves a government authorized intrusion onto private property. For
instance, the government might require that landowners allow third
parties to install cables on their buildings, or the government might
require an employer to host union organizers.These kinds of regulations are treated as "per se" takings requiring
compensation. If a government regulation only restricts the way the
property owners use their property, such as by limiting the height of
buildings that can be constructed, such regulation will only be treated
as a taking if it goes "too far."
The last two words of the amendment promise "just compensation" for takings by the government. In United States v. 50 Acres of Land (1984), the Supreme Court
wrote that "The Court has repeatedly held that just compensation
normally is to be measured by "the market value of the property at the
time of the taking contemporaneously paid in money." Olson v. United States,
292 U.S. 246 (1934). That said, "fair market value" is only a
presumption. The Supreme Court has "refused to make a fetish even of
market value, since it may not be the best measure of value in some
cases." United States v. Cors,
337 U.S. 325, 332 (1949). Courts will deviate from fair market value
when it is "too difficult to find, or when its application would result
in manifest injustice to owner or public". United States v. Commodities Trading Corp., 339 U.S. 121, 123 (1950).
Civil asset forfeiture or occasionally civil seizure, is a controversiallegal process in which law enforcement officers take assets
from persons suspected of involvement with crime or illegal activity
without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property
such as a pile of cash or a house or a boat, such that the thing is
suspected of being involved in a crime. To get back the seized property,
owners must prove it was not involved in criminal activity. Sometimes
it can mean a threat to seize property as well as the act of seizure
itself.
In civil forfeiture, assets are seized by police based on a
suspicion of wrongdoing, and without having to charge a person with
specific wrongdoing, with the case being between police and the thing itself, sometimes referred to by the Latin term in rem, meaning "against the property"; the property itself is the defendant and no criminal charge against the owner is needed. If property is seized in a civil forfeiture, it is "up to the owner to prove that his cash is clean" and the court can weigh a defendant's use of their Fifth Amendment right to remain silent in their decision. In civil forfeiture, the test in most cases is whether police feel there is a preponderance of the evidence suggesting wrongdoing; in criminal forfeiture, the test is whether police feel the evidence is beyond a reasonable doubt, which is a tougher test to meet. In contrast, criminal forfeiture is a legal action brought as "part of
the criminal prosecution of a defendant", described by the Latin term in personam,
meaning "against the person", and happens when government indicts or
charges the property which is either used in connection with a crime, or
derived from a crime, that is suspected of being committed by the
defendant; the seized assets are temporarily held and become government property officially after
an accused person has been convicted by a court of law; if the person
is found to be not guilty, the seized property must be returned.
Normally both civil and criminal forfeitures require
involvement by the judiciary because; however, there is a variant of
civil forfeiture called administrative forfeiture which is essentially a civil forfeiture which does not require involvement by the judiciary, which derives its powers from the Tariff Act of 1930,
and empowers police to seize banned imported merchandise, as well as
things used to import or transport or store a controlled substance,
money, or other property which is less than $500,000 value.
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