obtained as a result of an confession from a person who had not been given his Miranda rights. If Miranda were just a “prophylactic” rule, then a violation of Miranda would not necessarily render inadmissible any evidence obtained as a result of such a confession and might not even render the confession itself inadmissible, depending on the circumstances. The Court began to clarify this ambiguity in Chavez v. Martinez, 538 U.S. 760, 123 S. Ct. 1994, 155 L. Ed. 2d 984 (2003). The case involved the question of whether police officers are required to read criminal suspects the Miranda warnings even if the suspects are never brought to trial. In 1997, Oliverio Martinez, a farm worker, was shot and injured by police officers during a struggle. A police sergeant, Ben Chavez, questioned Martinez for 45 minutes while the latter lay in a hospital bed. Chavez never read Martinez the Miranda warnings, and Martinez insisted that he did not want to answer the questions. Martinez filed a 1983 action to vindicate what he claimed was a violatio n of his constitutional right to be Mirandized before an interrogation commenced. The Supreme Court ruled that the police officer’s failure to read Martinez Miranda warnings did not violate Martinez’s constitu- tional rights and could not be used as a basis for recovery under 42 U.S.C.A. § 1983. In a badly splintered 5–4 decision, Justice CLARENCE THOM- AS , writing for the Court, said that while the Miranda warnings offer protection against violations of constitutional rights, the failure to provide these warnings is not necessarily a constitutional violation by itself. In this case, Martinez was never required to be a witness against himself in a criminal trial. Instead, it was Martinez who was seeking to introduce the unMirandized interrogation on his own behalf during a civil trial he had brought to vindicate an alleged CIVIL RIGHTS violation. Thus, the Court concluded that the self-incrimination clause was not directly implicated, and the fact that the officer asked coercive questions did not violate Martinez’s Fifth Amendment righ t against self- incrimination. A year later, the Court further undermined the claim that Dickerson had made Miranda an inviolable constitutional rule. In United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004), the Court reviewed a case involving a defendant charged with being a felon in possession of a weapon. During an interrogation in which the defendant had not been Mirandized, the defendant told police where the weapon was located but did not expressly confess to the crime. The Court held that Miranda is just a “prophylactic” rule designed to enforce the protection of the self- incrimination clause against coerced, involun- tary statements. Since the defendant voluntarily disclosed the location of the weapon and the prosecution was not seeking to admit into evidence a confession of any sort, the Court reasoned, no Fifth Amendment violation had occurred. Nor could the “fruit of the poisonous tree doctrine” be applied to exclude the introduction of the weapon at trial. The self- incrimination clause only protects witnesses from testifying against themselves, the Court said, and the weapon was non-testimonial physical evidence. On the same day that Patane was decided, the Court handed down its opinion in Missouri v. Seibert, 542 U.S. 600,124 S. Ct.2601, 159 L. Ed. 2d 643 (2004). The case involved the use of a police tactic whereby the police would interrogate a suspect in two phases. During the initial phase, the police would aggressively question the suspect without first reading the Miranda warnings. If the suspect confessed to a crime, the police would then take a break, leave the room, and come back a short time later to resume questioning. However, before the second phase of the interrogation started, the police would read the suspect the Miranda warnings. Because the suspect had already confessed during phase one, the police would persuade the suspect that there was no reason not to confess again. The prosecution would then seek to introduce the second, Mirandized confession, at trial. In the case at hand, the defendant had been charged with neglecting her own child, who had died under suspicious circumstances. The defendant was brought in for an initial phase of questioning by the police and confessed to knowledge of a plan to conceal the circum- stances of her son’s death by burning down the family’s mobile home. She also admitted that during the fire, she allowed an unrelated mentally retarded 18-year-old, who had been living with her family in the mobile home, to die in the fire. With confession in hand, the police left the interrogation room for approxi- mately 30 minutes, returned, and persuaded the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FIFTH AMENDMENT 439 defendant to sign a second confession retelling the same story, but only after the police first read her the Miranda warnings. In another badly splintered 5–4decision, Justice DAVID SOUTER, writing for the Court, said that the facts of this case “by any objective measure reveal a police strategy adapted to undermine the Miranda warnings.” He declared that the police had created a situation for the defendant “in which it would have been unnatural to refuse to repeat at the second stage what had been said before.” Justice ANTHONY KENNEDY provided a fifth vote concurring with the judgment of the Court, but in a separate opinion, Kennedy articulated a test by which to determine the constitutionality of any two-step interrogation process, a test that no one else on the court adopted. Due Process Clause The Fifth Amendment’s due process clause has two aspects: procedural and substantive. Proce- dural due proces s is concerned with the process by which legal proceedings are conducted. It requires that all persons who will be materially affected by a legal proceeding receive notice of its time, place, and subject matter so that they will have an adequate opportunity to prepare. It also requires that legal proceedings be con- ducted in a fair manner by an impartial judge who will allow the interested parties to present fully their complaints, grievances, and defenses. The due process clause governs civil, criminal, and administrative proceedings from the pre- trial stage through final appeal, and proceedings that produce arbitrary or capricious results will be overturned as unconstitutional. SUBSTANTIVE DUE PROCESS is concerned with the content of particular laws that are applied during legal proceedings. Before WORLD WAR II, the U.S. Supreme Court relied on substantive due process to overturn legislation that infringed on a variety of property interests, including the right of employers to determine the wages their employ- ees would be paid and the number of hours they could work. Since World War II, the Court has relied on substantive due process to protect privacy and autonomy interests of adults, includ- ing the right to use contraception and the right to have an ABORTION. The line separating procedure from sub- stance is not always clear. For example, proce- dural due process guarantees criminal defendants the right to a fair trial, and substantive due process specifies that 12 jurors must return a unanimous guilty VERDICT before the death penalty can be imposed. The concepts of substantive and procedural due process trace back to English law. The Magna Carta provided, “No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way except by the lawful judgment of his peers, or by the law of the land” (art. 39). According to eminent English jurist SIR EDWARD COKE , law of the land and due process of law were interchangeable terms that possessed both pro- cedural and substantive meaning. The American colonists followed the English tradition of attributing substantive and procedural qualities to the concepts of due process and the law of the land. Maryland and Massachusetts, for example, equated the two concepts with colonial COMMON LAW and legislation regardless of their procedural content. On the other hand, Virginia, Pennsylvania, and Vermont all passed constitu- tional provisions identifying the law of the land with specific procedural safeguards, including the right against self-incrimination. Thus, when the due process clause was submitted to the state conventions for RATIFICATION, it was popularly understood to place procedural requirements on legal proceedings as well as substantive limitations on the law applied in those proceedings. Eminent Domain Clause When the government takes PERSONAL PROPERTY for public use, the law calls it a taking and protects it under the EMINENT DOMAIN clause of the Fifth Amendment. The eminent domain clause permits the government to appropriate private property, both real estate and personal belongings, for a public purpose so long as the owner receives just compensation, which is normally equated with the FAIR MARKET VALUE of the property. The Fifth Amendment attempts to strike a balance between the needs of the public and the property rights of the owner. The power of eminent domain was first recognized in England in 1215. Article 39 of the Magna Carta read, “no free man shall be disseised [deprived] of his freehold except by the lawful judgment of his peers, or by the law of the land.” No compensation was awarded to owners whose property was taken by the govern- ment for public use. Instead, English law merely required that the government obtain ownership of private property through existing legal chan- nels, such as parliamentary legislation. This GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 440 FIFTH AMENDMENT principle was followed in England for several centuries and was later adopted by the Americ an colonies. Uncompensated takings of private property by colonial governments generally involved unimproved land (i.e., land that had not been built on). Colonial governments often appro- priated private land to build roads and bridges in order to develop frontiers. During the American Revolution, the power of eminent domain was used to seize the land of colonists who were loyal to Great Britain and to obtain various goods for military consumption. Com- pensation was rarely given to individual owners who were deprived of their property by colonial governments because making personal sacrifices for the common good, including forfeiting personal property, was considered an essential duty of every colonist. Not everyone in the colonies believed that personal property interests should always be sacrificed for the greater good of society. Many colonists expressed distress over legislatures that were abusing their power of eminent domain. New York, for example, regularly failed to recognize title to real estate in its colony that was held by residents of Vermont. Other colonies also discriminated in favor of their own residents, and against persons whose patriotism was questionable during the Revolution. It was in this context that the eminent domain clause of the Fifth Amendment was drafted. During the twentieth century, the U.S. Supreme Court enlarged the protection against uncompensated takings of private property by state and federal governments. The eminent domain clause has been interpreted to protect not only owners whose property is physically taken by the government, but also owners whose property value is diminished as a result of government activity. Thus, compensable takings under the Fifth Amendment result from zoning ordinances that deny property owners an eco- nomically viable use of their land (Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 [1980]), environmental regulations that require the government to occupy an owner’s land in order to monitor groundwater wells (Hendler v. United States, 952 F.2d 1364 [Fed. Cir. 1991]), land-use regulations that curtail mining operations (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 [1992]), and government-owned airports that lowe r property values in adjacent neighborhoods (United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206 [1946]). Because only a small percentage of the U.S. population is ever a target of eminent domain proceedings initiated by the government, many Americans have tended to overlook, take for granted, or even forget about the protections offered by the Fifth Amendment. This changed when the U.S. Supreme Court announced its decision in Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 2005. In Kelo, the City of New London, Connecti- cut approved an economic development plan that was projected to create more than 1,000 jobs, substantially increase tax revenues, and provide a new look to the city’s downtown and waterfront areas. The plan called for the conversion of residential neighborhoods into a business district that would consist of a conference hotel, office space, a museum, and similar buildings. Many of these buildings would be privately owned. The city negotiated with willing landowners and then used the power of eminent domain to acquire the other property. The city sought to condemn an area that contained houses owned by Susette Kelo and eight other home owners. Kelo and the other homeowners challenged the plan, arguing that taking private property for the benefit of another private entity violated the due process clause of the Fifth Amendment. The case reached the Supreme Cour t. In a 5–4 ruling, the Court held that the city could take the property through the power of eminent domain. The Court’s opinion, written by Justice JOHN PAUL STEVENS, concluded that the taking of private property for economic development purposes constituted a “public use” under the Fifth Amendment. The government officials in Kelo had carefully formulated an economic development plan that the officials believed would provide appreciable benefits to the community. These benefits included new jobs and increased tax revenues. The public reacted negatively to the deci- sion. Many states passed legislation that effec- tively limited the application of Kelo, and some states reached a different conclusion than Kelo based on state constitutional provisions. The result of these reactions has been a severe limitation in Kelo’s application. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FIFTH AMENDMENT 441 Grand Jury Clause A grand jury is a group of citizens who are summoned to criminal court by the sheriff to consider accusations and complaints leveled against persons who are suspected of engaging in criminal conduct. Grand juries do not determine guilt or innocence. Instead, they determine whether PROBABLE CAUSE exists to believe that the accused has committed a crime, and they return an indictment (i.e., a formal charge against the accused) if they do find probable cause. IN COMMON law, a grand jury consisted of not fewer than 12, and not more than 23, men. In the early 2000s, grand juries impaneled before a federal district court must consist of not fewer than 16, and not more than 23, men and women. Potential jurors are usually drawn from lists of qualified residents. Persons who are below the AGE OF MAJORITY, who have been convicted of certain crimes, or who are biased toward the accused are ineligible to serve as grand jurors. The grand jury originated in England during the reign of Henry II (1154–1189). In 1166, a statute called the Assize of Clarendon was enacted. The assize provided that no person could be prosecuted unless four men from each township and 12 men from each hundred appeared before the county court to accuse the individual of a specific crime. This COMPUL- SORY PROCESS , called a presenting jury, foresha- dowed the grand jury as an ACCUSATORY BODY that identified individuals for prosecution but made no finding as to guilt or innocence. As the grand jury system developed in England and colonial America, it protected innocent persons who faced unfounded charges initiated by political, religious, and personal adversaries. The impartiality of grand juries is essential. This is a significant reason why the proceedings are convened in secrecy; otherwise, public scrutiny and similar prejudicial influ- ences could affect their decision-making pro- cess. Although grand juries must be impartial, accused persons have no constitutional right to present evidence on their behalf or to cross- examine witnesses, and hearsay evidence may be introduced against them. FURTHER READINGS Gedicks, Frederick Mark. 2009. “An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment.” Emory Law Journal. 58. Helmholz, R.H. 1983. “The Early History of the Grand Jury and the Canon Law.” University of Chicago Law Review 50 (spring). Hickok, Eugene W., Jr., ed. 1991. The Bill of Rights: Original Meaning and Current Understanding. Charlottesville: Univ. Press of Virginia. Lawhead, Alan. 2009. “The Useful Limits to the Fifth Amendment: Examining the Benefits That Flow from a Private Regulator’s Ability to Demand Answers to Its Questions During an Investigation.” Columbia Business Law Review. Mermelstein, Mark, and Joel M. Athey. 2002. “In the Fifth Dimension: Problems Faced By Trial Lawyers When a Witness Invokes the Fifth Amendment.” Los Angeles Lawyer 25 (October). Roxas, Angela. 2002. “Questions Unanswered: the Fifth Amendment and Innocent Witnesses.” Journal of Criminal Law and Criminology 93 (fall). Treanor, William M. 1995. “The Original Understanding of the Takings Clause and the Political Process.” Columbia Law Review 95 (May). CROSS REFERENCES Criminal Law; Criminal Procedure; Custodial Interro- gation; Double-Jeopardy; Due Process of Law; Eminent Domain; Grand Jury; Miranda; Self-Incrimination; Sub- stantive Due Process. FIGHTING WORDS See FIRST AMENDMENT; FREEDOM OF SPEECH. FILE A record of the court. A paper is said to be filed when it is delivered to the proper officer to be kept on file as a matter of record and reference. But in general the terms file and the files are used loosely to denote the official custody of the court or the place in the offices of a court where the records and papers are kept. The file in a case includes the original complaint and all pleadings and papers belonging thereto. A clerk files a document by endorsing it on the date it is received and retaining it in his or her office for inspection by the parties that it might concern. FILIATION PROCEEDING A process whereby a court determines the paternity of an illegitimate child in order to establish the father’s duty to provide support for the child. A filiation proceeding is also referred to as a bastardy proceeding or an AFFILIATION PROCEEDING. CROSS REFERENCE Illegitima cy. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 442 FIGHTING WORDS FILIBUSTER A tactic used by a legislative representative to hinder and delay consideration of and action to be taken on a proposed bill through prolonged, irrelevant, and procrastinating speeches on the floor of the House, Senate, or other legislative body. A filibuster is stopped by CLOTURE, a legislative procedure that enables a vote to be taken on the proposed measure. FILIUS NULLIUS [Latin, A son of nobody.] An illegitimate child who had few legal rights under the common law. Laws have broadened the legal rights of illegitimate children who, in the language of some statutes, are referred to as nonmarital children. CROSS REFERENCE Illegitima cy. v FILLMORE, MILLARD MillardFillmorewasaWhig,amemberofthe New York Assembly, a member of the U.S. Congress, vice PRESIDENT OF THE UNITED STATES under ZACHARY TAYLOR, and the 13th president of the United States. Despite a personal dislike of slavery, he signed into law the FUGITIVE SLAVE ACT OF 1850, among other bills that originated in the COMPROMISE OF 1850.His administrationsupported trade with foreign countries, forging one of the first trade agreements with Japan, but Fillmore was opposed to expansionism and refused to support an attempted annexation ofCuba in1851. Fillmore was born January 7, 1800, in Locke, New York. His father, Nathaniel Fillmore, was a farmer who wanted Fillmore to escape a life of poverty. Fillmore left school at an early age to become apprenticed, but a judge recognized his talents and ambition and persuaded him to study law. He was admitted to the bar at the age of 24 and soon became a leading lawyer in the state of New York. In 1828 Fillmore was elected to the New York Assembly, and in 1832, he was elected to Congress, where he served three terms. In 1844 he ran unsuccessfully for governor of New York State. In 1848 the WHIG PARTY nominated him for vice president to run with the Mexi can War hero Taylor. Fillmore and Taylor won the election by appeasing both northern and southern voters, taking the position that although slavery was evil, it was a problem that had to be solved by the states. Fillmore was disappointed with his lack of power and voice as vice president. The country was facing a crisis over the issues of slavery and the admittance of Texas, California, and New Mexico into the Union. The Compromise of 1850, written by Senator HENRY CLAY, was an omnibus that recom mended that California be admitted to the Union as a free state, the rest of Mexican cession be formed without restrictions on slavery, Texas end its boundary dispute with New Mexico, and a new fugitive slave law be passed. As president of the Senate, Fillmore was involved in the debate over the compromise but found himself unable to influence its course. President Taylor was seen as the greatest obstacle to the compromise because he refused to sign it as one comprehensive piece of legislation, wanting to consider separately the issue of California’s admission into the Union Millard Fillmore 1800–1874 ▼▼ ▼▼ 18001800 18751875 18501850 18251825 ❖ ❖ ◆ 1800 Born, Locke, N.Y. 1824 Admitted to New York bar 1828–32 Served in New York Assembly 1833–35 Served in U.S. House ◆ 1837–41 Served in U.S. House 1844 Ran for governor of New York unsuccessfully ◆ ◆ ◆ ◆ 1861–65 U.S. Civil War 1874 Died, Buffalo, N.Y. 1856 Accepted nomination of the Know–Nothing Party for president; lost 1852 Lost nomination to General Winfield Scott 1848 Elected vice president under Zachary Taylor 1850 Taylor died and Fillmore sworn in as president; signed the Compromise of 1850 and the Fugitive Slave Act LET US REMEMBER THAT REVOLUTIONS DO NOT ALWAYS ESTABLISH FREEDOM . O UR OWN FREE INSTITUTIONS WERE NOT THE OFFSPRING OF OUR REVOLUTION. T HEY EXISTED BEFORE . —MILLARD FILLMORE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FILLMORE, MILLARD 443 as a free state. The South feared that if California was admitted as a free state, other western territories would eventu ally become free states, thereby giving the antislavery movement a more powerful voice in Congress. In the summer of 1850 Taylor became even more hostile to the South when he threatened to lead the U.S. Army against the Texas MILITIA, which was trying to spread slavery westward by threatening Texas’s boundary with the territory of New Mexico. This never transpired because on July 9, 1850, Taylor died suddenly and Fillmore was sworn in as president. Fillmore supported the compromise, but he too wanted the legislation divided into separate bills. With the departure from the Senate of the compromise’s strongest supporters—Clay, DANIEL WEBSTER, and John C. Calhoun—and the maneuvering of new leaders such as STEPHEN A. DOUGLAS, Jefferson Davis, and William H. Seward, the bill was split up. Only three months after Taylor’s death, all the separate bills were passed by Congress and signed into law by Fillmore. Fillmore was opposed to slavery and had difficulty signing one of the bills, the Fugitive Slave Act of 1850. The act forbade both government and individuals to help slaves escape from their masters. It also made the federal government responsible for recovering and returning runaway slaves. Fillmore believed it was his constitutional responsibility to enforce the law even though he disagreed with it. In a letter to Webster, he wrote, God knows I detest slavery, but it is an existing evil, for which we are not responsible, and we must endure it and give it such protection as is guaranteed by the constitution, till we get rid of it without destroying the last hope of free government in the world. In the area of foreign policy, the Fillmore administration achieved one of the first trade agreements ever reached between the empire of Japan and a foreign country. This agreement opened up new sources of coal to power the United States ’s seagoing steamers, and it helped establish a Pacific trade route between the United States and Asia. Fillmore opposed the popular nineteenth-century philosophy of Man- ifest Destiny, which regarded U.S. expansion into the Pacific as the inevitable will of God. He thought seizing another nation’s land was dishonorable. In August 1851 he refused to give military support to an attempted annex- ation of Cuba by four hundred U.S. citizens, mostly veterans of the Mexican War. The invasion of the Spanish colony failed, and most of the invaders, including their leader, Narciso Lopez, were captured and executed. Early in his presidency, Fillmore had deter- mined that he would not seek reelection, but in the months leading up to the 1852 election, it became clear that the southern Whigs would support only Fillmore. Even though he did not desire his party’s nomination, Fillmore left his name on the convention ballot to prevent the nomination of General Winfield Scott. Fillmore knew the general would be a hopeless candidate in the South because of his connections with abolitionists like Seward. But on the fifty-third ballot, Scott was nominated. As Fillmore predicted, Scott lost the general election to Democrat FRANKLIN PIERCE. Fillmore’s last venture into politics came in 1856 when he accepted the presidential nomi- nation of the KNOW-NOTHING PARTY. This political party was formed as a result of a division in the Whig Party between those who favored national expansion and those who were against slavery. The Know-Nothings, created by the national Whigs, used their opposition to mass IMMIGRA- TION from Europe to unite northern and southern voters. U.S. citizens never took the party seriously, and Fillmore lost the election to southern Democrat JAMES BUCHANAN. Millard Fillmore. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 444 FILLMORE, MILLARD After the election, Fillmore settled down in Buffalo, New York, and became the city’s leading citizen. He participated in many com- mittees and supported institutions such as the University of Buffalo and the Orphan Asylum. When the nation fell into CIVIL WAR in 1861, he pledged his support to the Union cause and worked to enlist Buffalo men in the war effort. His support dwindled as the war raged on, and in 1863 he publicly denounced Abraham Lincoln’s administration’s handling of the conflict and supported George B. McClellan in the 1864 presidential election. On February 13, 1874, Fillmore suffered a stroke, which was followed by a second stroke on February 26. He died on March 8, 1874, at the age of 74. FURTHER READINGS Grayson, Ben L. 1981. The Unknown President: The Administration of President Millard Fillmore. Washing- ton: Univ. Press of America. Rayback, Robert J. 2004. Millard Fillmore. Jefferson City, MO: Easton. Scarry, Robert J. 2001. Millard Fillmore. Jefferson, NC: McFarland. Smith, Elbert B. 1988. The Presidencies of Zachary Taylor and Millard Fillmore. Lawrence: Univ. Press of Kansas. FINAL DECISION The resolution of a controversy by a court or series of courts from which no appeal may be taken and that precludes further action. The last act by a lower court that is required for the completion of a lawsuit, such as the handing down of a final judgment upon which an appeal to a higher court may be brought. FINANCE CHARGE The amount owed to a lender by a purchaser- debtor to be allowed to pay for goods purchased over a series of installments, as opposed to one lump sum at the time of the sale or billing. A finance charge, sometimes called the cost of credit, is expressed as an annual interest rate levied upon the purchase price. It does not include any amounts that the lender might require for insurance premiums, delinquency charges, attorney’s fees, court costs, collection expenses, or official fees that might be incurred should the debtor default in the repayment of the debt. Federal and state “truth -in-lending” laws mandate that the complete cost of finance charges be fully disclosed on credit agreements and billing statements. CROSS REFERENCE Consumer Credit Protection Act. FINANCIAL RESPONSIBILITY ACTS State statutes that require owners of motor vehicles to produce proof of financial accountability as a condition to acquiring a license and regist ration so that judgments rendered against them arising out of the operation of the vehicles may be satisfied. CROSS REFERENCE Automobiles. FINANCIAL STATEMENT Any report summarizing the financial condition or financial results of a person or an organization on any date or for any period. Financial statements include the balance sheet and the income statement and sometimes the statement of changes in financial position. FINDER An intermediary who contracts to find, introduce, and bring together parties to a business opportu- nity, leaving ultimate negotiations and consum- mation of business transaction to the principals. With respect to a securities issue, refers to one who brings together an issuer and an underwriter; in connection with mergers, refers to one who brings two companies together. May also refer to one who secures mortgage financing for a borrower, locates a particular type of executive or professional for a corporation, or locates a particular type of business acquisition for a corporation. FINDING The result of the deliberations of a jury or a court. A decision upon a question of fact reached as the result of a judicial examination or investigation by a court, jury, referee, coroner, etc. A recital of the facts as found. The word commonly applies to the result reached by a judge or jury. FINDING LOST GOODS The discovery of personal property that has been unintentionally removed from its owner’s posses- sion through his or her neglect or inadvertence. The fact that an owner has involuntarily parted with the property and that he or she is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FINDING LOST GOODS 445 ignorant of its location sufficiently establishes that the property is lost. Mislaid property is property that an owner intentionally places somewhere so that it can eventually be found again, but he or she subsequently forgets where it was placed. The right to possess the property rests in the issue of whether the property is to be considered lost or mislaid. This issue must be determined upon examination of the particular facts and circumstances of any given case. Abandoned property is property to which the owner has purposefully relinquished all rights as an owner thereto. Because such property is ownerless, it can be owned by the first person who takes it with the intent to claim it as his or her property. The place where the property is discovered is an important factor in determining whether it is lost or mislaid. When property is in someone’s possession, it cannot be found within the meaning of lost property. An article in the possession and protection of the owner of the place where it is found is not legally considered lost. Similarly, an owner of land is considered to have possession of all articles on the land even though he or she may be unaware of their presence. If the finder of lost property is an employee of the owner of the land, the owner’s right to custody of the property is superior to that of the employee. Property found in a public or semipublic place—where the public is ordinarily invited and expected to be—may be considered lost, since the owner or manager of the location does not represent its owner. Treasure trove is any gold or silver in coin, plate, or bullion hidden in the earth or other private place by an unknown owner for a long time. The property is not treasure trove unless the identity of the owner is unascertainable. Ordinarily, the treasure must be in the form of coin or bullion, but it may also include paper currency—particularly when such currency is discovered with both these precious metals. An individual who finds lost property does not acquire absolute ownership of the property. In order to obtain title to, or rights in, the lost property, the finder must intentionally take possession and control over it. The individual who acquires possession of a lost or mislaid article has superior rights to the item over anyone except the true owner. This person is only the apparent owner. The finder’s title to the property may be forfeited upon discovery of the true owner, whose title in it is unaffected by the fact that the article has been lost. Afinder’s title is contingent upon the potential discovery of the true owner. He or she may not, therefore, transfer title to another individual. If the true owner of lost property dies before his or her identity is discovered, the title and right to the lost article passes to the executor or administrator of the owner’s estate for distribu- tion to his or her heirs pursuant to the terms of his or her will or the laws of DESCENT AND DISTRIBUTION . As between the finder of treasure trove and its true owner, the true owner prevails. It has been held, however, that the finder of treasure trove has greater rights to it than the heirs of the individual who concealed it. The true owner of lost property is responsi- ble for paying all reasonable expenses incurred by a finder in the discovery and preservation of lost property. The finder may also be entitled to a small compensation for his or her time and effort; however, the finding party does no t acquire a LIEN against the property. The finder cannot receive reimbursement for his or her expenses and time with use of the property, nor is the individual entitled to a reward for finding it unless one has been offered. Some state statutes provide that a finder of lost goods is entitled to recover expenses that were necessary to preserve the property and to a reward for holding it. These statutes are consistent with statutes providing that the finder must return the Treasure trove, such as these coins from the Spanish ship Juno, which sank near Assateague Island, Va., in 1802, is the property of the person who takes possession of it. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 446 FINDING LOST GOODS property to its true owner and that a finder who is aware of the identity of the true owner is guilty of larceny if he or she keeps the goods. Such statutes are enacted in order to aid the finding of lost property. An individual who finds and takes posses- sion of lost property ordinarily has the right to possess it over everyone but the true owner. Some statutes provide that if the true owner neglects to appear and claim the property within a certain time period after the finding of the article has been published in a local newspaper, the finder is entitled to retain part of the property or part of its value while the remaining portion passes to the state, or one of its departments or agencies. The finder of treasure trove, under early COMMON LAW, took title to it over everyone except the true owner. This doctrine was changed in England by a STATUTE that granted title to the crown, subject to the claims of the true owner. In the United States, the law regarding treasure trove has largely been combined into the law governing lost property. Some cases still hold, however, that the old treasure trove law is not merged into the statutory law relating to lost property. The common law of early England has also been held to apply in the absence of a statut e governing treasure trove. In either instance, the title to treasure trove belongs to the finder over all other people except the true owner, unless otherwise provid- ed by statute. If there is a conflict as to ownership between the true owner and the state, the owner is entitled to treasure trove. FURTHER READINGS Izuel, Leeanna. 1990. “Property Owners’ Constructive Possession of Treasure Trove: Rethinking the Finders Keepers Rule.” UCLA Law Review 38. Ominsky, Harris. 2002. “Finders Keepers? First Impressions and Ancient Wisdom.” Probate & Property 16 (May- June). The Pacific Reporter, Vol. 114. 1911. Eagan, MN: West. West, Mark D. 2003. “Losers: Recovering Lost Property in Japan and the United States.” Law & Society Review 37 (June). FINES Monetary charges imposed upon individuals who have been convicted of a crime or a lesser offense. A fine is a criminal sanction. A civil sanction, by contrast, is called a penalty. The term fine is sometimes used to describe a penalty, but the terms fine and penalty should be kept separate because the consequences are different: nonpay- ment of a criminal fine can result in incarcera- tion, whereas nonpayment of a civil penalty cannot. Federal and state criminal statutes authorize fines for certain offenses. Depending on the crime, a fine may be imposed in addition to incarceration, RESTITUTION, COMMUNITY SERVICE, or probation. The amount of a fine varies with the severity of the offense. State and federal criminal codes generally break down felonies and misdemeanors into classes or degrees. In Kentucky, for example, the fine for a violation or a class B MISDEMEANOR may not exceed $250. For a class A misdemeanor, the fine may not exceed $500 (Ky. Rev. Stat. Ann. § 534.040). For a felony conviction, Kentucky courts are bound by statute to fine the defendant not less than $1,000, and not more than $10,000 or double the gain from the commission of the offense, whichever is greater (Ky. Rev. Stat. Ann. § 534.030). Two or more felonies committed through a single act may be fined separately in Kentucky, but the aggregate may not exceed $10,000 or double the amount of the illicit gain, whichever is greater. In federal court, a felony is subject to a fine of not more than $250,000. A fine of $250,000 is also authorized for a misdemeanor resulting in death. Fines for class A misdemeanors not A California roadside sign warns of a fine for littering. The amount of a fine typically varies with the severity of the offense. In California, for example, a person convicted of littering must pay a mandatory fine of no less than $100 and no more than $1,000 for a first-time offense. CHROMOSOHM INC./ CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FINES 447 resulting in death may reach $100,000, and similar class B and C misdemeanors may result in a fine of up to $5,000 (18 U.S.C.A. § 3571). Federal law also allows a court to fine a defendant who has financially benefited from a crime, an amount twice that illicitly gained. Federal and state laws authorize fines of similarly scaled amounts for organizations. The maximum fine for organizations is much higher than that for individuals. For instance, under 18 U.S.C.A. § 3571, an organization guilty of a felony may be fined as much as $500,000. Kentucky also doubles the fine limit for organizations. For example, an organization in Kentucky that commits a felony may be fined $20,000, up from $10,000 for an individual (Ky. Rev. Stat. Ann. § 534.050). States also authorize fines for specific crimes. In Kentucky, for example, a fine of not more than $2,500 and not less than $1,000 is required for the illegal sale of tobacco to a minor (§ 438.313). Statutes fix the maximum fine for a given offense, and statutes can be changed, so fine amounts can change. In state courts, sentencing is usually left to the discretion of the judge. If a defendant is found by a court to be indigent, the court generally will not impose a fine (see, e.g., Ky. Rev. Stat. Ann. §§ 534.030, 534.040). A determination of indigence generally involves an examination of several factors, including income, earning capacity, financial resources, the burden the fine may impose on persons dependent on the defendant, and the need to deprive the defendant of any illegally obtained gains. Where an indigent defendant is convicted of an offense that calls for incarceration, the court generally will not impose a fine in addition to the incarceration. Federal courts must sometimes follow prison sentences mandated by federal statute, but the decision of whether to impose a fine in addition to any sentence is generally within the judge’s discretion. Both state and federal courts may later reduce the amount of a fine. The statutory repayment period of a fine may be extended upon request of the court, and payments may be allowed in installments. The U.S. Supreme Court has placed limits on incarceration for nonpayment of fines. In Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), the defendant, Willie E. Williams, was convicted of petty theft and sentenced to one year in prison and a $500 fine, the maximum sentence allowed under the applicable statute. When Williams was unable to pay the fine upon completing his year in jail, he was kept incarcerated to “work off” the fine at a rate of $5 per day. Williams appealed, and the U.S. Supreme Court ruled that, under the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT , no state may increase the sentence of a defendant beyond the maximum period specified by statute for failure to pay a fine. Shortly after the Williams case, the Supreme Court ruled that a state may not convert a fine into incarceration if the conviction warrant s only a fine. In Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971), the defendant, Preston A. Tate, was unable to pay $425 in fines for traffic offenses and was committed to prison to work off his fine at a rate of $5 a day. The Supreme Court ruled that a state may not “impos[e] a fine as a sentence and then automatically conver[t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” Neither the Willi ams ruling nor the Tate ruling prevents a court from imprisoning a defendant who is able, but refuses, to pay a fine. The court may do so after finding that the defendant was somehow responsible for the failure to pay and that alternative forms of punishment would be inadequate to meet the state’s interest in punishment and deterrence (Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 [1983]). In a case of willful nonpayment, the court may order incarceration for a period of time specified under statute. In Kentucky, a prison term of up to six months may be ordered if the unpaid fine was imposed for the conviction of a felony. Nonpayment of a misdemeanor fine may result in a prison term of up to one-third the maximum authorized term for the offense committed. For a violation, the maximum term is ten days. This amount can be cumulative. For example, if a person refuses to pay the fines for ten violations, that person can be incarcerated for 100 (Ky. Rev. Stat. Ann. § 534.060). Fines are often used to pay for incarceration and other sentencing costs. In 1984, Congress passed the Comprehensive Crime Control Act (codified in scattered sections of 5, 8, 29, 41, 42, and 50 App. U.S.C.A.), which established the U.S. Sentencing Guidelines Commission. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 448 FINES . election to southern Democrat JAMES BUCHANAN. Millard Fillmore. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 44 4 FILLMORE, MILLARD After the election, Fillmore settled down in Buffalo,. the property of the person who takes possession of it. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 44 6 FINDING LOST GOODS property to its true owner and that a finder who is aware of the. involuntarily parted with the property and that he or she is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FINDING LOST GOODS 44 5 ignorant of its location sufficiently establishes that the property