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Fifth Amendment Due Process: Unbiased Judge and Impartial Jury

Many constitutional questions revolve around the way different parts of the Constitution interact with each other. For example, the Sixth Amendment guarantees the right to a trial by an "impartial jury," which is then considered part of the "due process" of law required by the Fifth Amendment.

This article provides a scholarly analysis of Fifth Amendment due process. If you or someone you know faces criminal charges, it's important to speak with an attorney to learn how to protect your constitutional rights.

What the Fifth Amendment Says

"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."

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The provisions of the Bill of Rights now applicable to the states contain basic guarantees of a fair trial—right to counsel, right to speedy and public trial, right to be free from the use of unlawfully seized evidence and unlawfully obtained confessions, and the like. But this does not exhaust the requirements of fairness. As the Supreme Court stated in Snyder v. Massachusetts:

"Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others."1

However, the Court has also acknowledged that due process is especially important in criminal trials:

"[A]s applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it . . . [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."2

For instance, bias or prejudice either inherent in the structure of the trial system or as imposed by external events will deny one's right to a fair trial. Thus, in Tumey v. Ohio,3 it was held to violate due process for a judge to receive compensation out of the fines imposed on convicted defendants, and no compensation beyond his salary) if he does not convict those who are brought before him.

In other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify such judge from citing and sentencing the contemnors.4 Due process is also violated by the participation of a biased or otherwise partial juror, although there is no presumption that all jurors with a potential bias are in fact prejudiced.5

Impartial Jury

Public hostility toward a defendant that intimidates a jury is a classic due process violation.More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury's exposure to it.7 For instance, the impact of televising trials on a jury has been a source of some concern.8

The fairness of a particular rule of procedure may also be the basis for due process claims, but such decisions must be based on the totality of the circumstances surrounding such procedures.9 For instance, a court may not restrict the basic due process right to testify in one's own defense by automatically excluding all hypnotically refreshed testimony.10 Or, though a state may require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, due process requires reciprocal discovery in such circumstances, necessitating that the state give the defendant pretrial notice of its rebuttal evidence on the alibi issue.11 Due process is also violated when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors.12

The use of visible physical restraints, such as shackles, leg irons, or belly chains, in front of a jury, has been held to raise due process concerns. In Deck v. Missouri,13 the Court noted a rule dating back to English common law against bringing a defendant to trial in irons, and a modern-day recognition that such measures should be used only in the presence of a special need.14 The Court found that the use of visible restraints during the guilt phase of a trial undermines the presumption of innocence, limits the ability of a defendant to consult with counsel, and affronts the dignity and decorum of judicial proceedings.15 Even where guilt has already been adjudicated, and a jury is considering the application of the death penalty, the latter two considerations would preclude the routine use of visible restraints. Only in special circumstances, such as where a judge has made particularized findings that security or flight risk requires it, can such restraints be used.

Related Resources


  1. 291 U.S. 97, 116, 117 (1934). See also Buchalter v. New York, 319 U.S. 427, 429 (1943).
  2. Lisenba v. California, 314 U.S. 219, 236 (1941).
  3. 273 U.S. 510, 520 (1927). See also Ward v. Village of Monroeville, 409 U.S. 57 (1972)But see Dugan v. Ohio, 277 U.S. 61 (1928). Similarly, in Rippo v. Baker, the Supreme Court vacated the Nevada Supreme Court's denial of a convicted petitioner's application for post-conviction relief based on the trial judge's failure to recuse himself. 137 S. Ct. 905 (2017). During Rippo's trial, the trial judge was the target of a federal bribery probe by the same district attorney's office that was prosecuting Rippo. Rippo moved for the judge's disqualification under the Fourteenth Amendment's Due Process Clause, arguing the judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. Id. at 906. After the judge was indicted on federal charges, a different judge subsequently assigned to the case denied Rippo's motion for a new trial. In vacating the Nevada Supreme Court's decision, the Supreme Court noted that [u]nder our precedents, the Due Process Clause may sometimes demand recusal even when a judge 'ha[s] no actual bias.' Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. Id. at 907 (quoting Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813, 825 (1986)Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Bias or prejudice of an appellate judge can also deprive a litigant of due process. Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813 (1986) (failure of state supreme court judge with pecuniary interest—a pending suit on an indistinguishable claim—to recuse).
  4. Mayberry v. Pennsylvania, 400 U.S. 455, 464 (1971) (it is generally wise where the marks of unseemly conduct have left personal stings [for a judge] to ask a fellow judge to take his place); Taylor v. Hayes, 418 U.S. 488, 503 (1974) (where marked personal feelings were present on both sides, a different judge should preside over a contempt hearing). But see Ungar v. Sarafite, 376 U.S. 575 (1964) (We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to authority). In the context of alleged contempt before a judge acting as a one-man grand jury, the Court reversed criminal contempt convictions, saying: A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. In re Murchison, 349 U.S. 133, 136 (1955).
  5. Ordinarily, the proper avenue of relief is a hearing at which the juror may be questioned and the defense afforded an opportunity to prove actual bias. Smith v. Phillips, 455 U.S. 209 (1982) (juror had job application pending with prosecutor's office during trial). See also Remmer v. United States, 347 U.S. 227 (1954) (bribe offer to sitting juror); Dennis v. United States, 339 U.S. 162, 167–72 (1950) (government employees on a jury). But, a trial judge's refusal to question potential jurors about the contents of news reports to which they had been exposed did not violate the defendant's right to due process, it being sufficient that the judge on voir dire asked the jurors whether they could put aside what they had heard about the case, listen to the evidence with an open mind, and render an impartial verdict. Mu'Min v. Virginia, 500 U.S. 415 (1991). Nor is it a denial of due process for the prosecution, after a finding of guilt, to call the jury's attention to the defendant's prior criminal record, if the jury has been given a sentencing function to increase the sentence which would otherwise be given under a recidivist statute. Spencer v. Texas, 385 U.S. 554 (1967). For discussion of the requirements of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra.
  6. Frank v. Mangum, 237 U.S. 309 (1915)Moore v. Dempsey, 261 U.S. 86 (1923).
  7. Sheppard v. Maxwell, 384 U.S. 333 (1966)Rideau v. Louisiana, 373 U.S. 723 (1963)Irvin v. Dowd, 366 U.S. 717 (1961)But see Stroble v. California, 343 U.S. 181 (1952)Murphy v. Florida, 421 U.S. 794 (1975).
  8. Initially, the televising of certain trials was struck down on the grounds that the harmful potential effect on the jurors was substantial, that the testimony presented at trial may be distorted by the multifaceted influence of television upon the conduct of witnesses, that the judge's ability to preside over the trial and guarantee fairness is considerably encumbered to the possible detriment of fairness, and that the defendant is likely to be harassed by his television exposure. Estes v. Texas, 381 U.S. 532 (1965). Subsequently, however, in part because of improvements in technology which caused much less disruption of the trial process and in part because of the lack of empirical data showing that the mere presence of the broadcast media in the courtroom necessarily has an adverse effect on the process, the Court has held that due process does not altogether preclude the televising of state criminal trials. Chandler v. Florida, 449 U.S. 560 (1981). The decision was unanimous but Justices Stewart and White concurred on the basis that Estes had established a per se constitutional rule which had to be overruled, id. at 583, 586, contrary to the Court's position. Id. at 570–74.
  9. For instance, the presumption of innocence has been central to a number of Supreme Court cases. Under some circumstances, it is a violation of due process and reversible error to fail to instruct the jury that the defendant is entitled to a presumption of innocence, although the burden on the defendant is heavy to show that an erroneous instruction or the failure to give a requested instruction tainted his conviction. Taylor v. Kentucky, 436 U.S. 478 (1978). However, an instruction on the presumption of innocence need not be given in every case. Kentucky v. Whorton, 441 U.S. 786 (1979) (reiterating that the totality of the circumstances must be looked to in order to determine if failure to so instruct denied due process). The circumstances emphasized in Taylor included skeletal instructions on the burden of proof combined with the prosecutor's remarks in his opening and closing statements inviting the jury to consider the defendant's prior record and his indictment in the present case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510 (1979) (instructing jury trying person charged with purposely or knowingly causing victim's death that law presumes that a person intends the ordinary consequences of his voluntary acts denied due process because the jury could have treated the presumption as conclusive or as shifting burden of persuasion and in either event state would not have carried its burden of proving guilt). See also Cupp v. Naughten, 414 U.S. 141 (1973)Henderson v. Kibbe, 431 U.S. 145, 154–55 (1977). For other cases applying Sandstrom, see Francis v. Franklin, 471 U.S. 307 (1985) (contradictory but ambiguous instruction not clearly explaining state's burden of persuasion on intent does not erase Sandstrom error in earlier part of charge); Rose v. Clark, 478 U.S. 570 (1986) (Sandstrom error can in some circumstances constitute harmless error under principles of Chapman v. California, 386 U.S. 18 (1967)); Middleton v. McNeil, 541 U.S. 433 (2004) (state courts could assume that an erroneous jury instruction was not reasonably likely to have misled a jury where other instructions made correct standard clear). Similarly, improper arguments by a prosecutor do not necessarily constitute plain error, and a reviewing court may consider in the context of the entire record of the trial the trial court's failure to redress such error in the absence of contemporaneous objection. United States v. Young, 470 U.S. 1 (1985).
  10. Rock v. Arkansas, 483 U.S. 44 (1987).
  11. Wardius v. Oregon, 412 U.S. 470 (1973).
  12. Estelle v. Williams, 425 U.S. 501 (1976). The convicted defendant was denied habeas relief, however, because of failure to object at trial. But cf. Holbrook v. Flynn, 475 U.S. 560 (1986) (presence of uniformed state troopers serving as security guards in the courtroom was not the same sort of inherently prejudicial situation); Carey v. Musladin, 549 U.S. 70 (2006) (effect on defendant's fair-trial rights of private-actor courtroom conduct—in this case, members of victim's family wearing buttons with the victim's photograph—has never been addressed by the Supreme Court and therefore 18 U.S.C. § 2254(d)(1) precludes habeas relief; see Amendment 8, Limitations on Habeas Corpus Review of Capital Sentences).
  13. 544 U.S. 622 (2005).
  14. 544 U.S. at 626. In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court stated, in dictum, that no person should be tried while shackled and gagged except as a last resort.
  15. 544 U.S. at 630, 631 (internal quotation marks omitted).
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