Sunday, March 5, 2017

I Plead the Fifth

“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.”

Yesterday we talked about the phase “the right of the people,” and how the courts have begun to understand its meaning.  The fifth amendment is much clearer in this one sense.  “No person” would seem to be an all-encompassing statement, it doesn’t matter if you are a citizen, an alien resident (legal or illegal), a mafia don, or bureaucrat under the scandal-free Obama administration called to testify before Congress the protections of the fifth amendment are there for you.

Anyone who has ever watched a movie about some criminal investigation has probably heard the protections of this amendment invoked.  “I plead the Fifth,” used to be a favorite line for the screen writer.  But what exactly are they pleading to or for?

The Fifth Amendment can trace its heritage back to the Magna Carta where the idea of Grand Juries and due process were first introduced into English law.  The amendment provides five constitutionally guaranteed rights, Grand Juries for capital crimes, the prohibition of double jeopardy, the prohibition of required self-incrimination, a guarantee that a defendant shall have a fair trial, and the protection from government seizure of land without the owner receiving fair market value.[i]

The framers of the constitution sure packed a lot into this amendment.  Let’s briefly touch on each protection.

The idea of a “Grand Jury” came into English law as a way to protect the average knight, Duke, Baron or other land owner from the vengeance of a displeased monarch.  Found within the common-laws a grand jury panel in the federal courts must be between 16 and 23 members.  Their job is to deliberate on the information available and determine if there is a reasonable belief the accused did commit the crime.  If so they will “present” the court with a bill of indictment.

Double jeopardy is not just the round before final jeopardy, it is an especially important provision of our legal system that gives the government only one shot at proving their case against a defendant.  There are actually three protections rolled into this concept.  The promise the defendant will not be tried for the same crime after an acquittal or a conviction, and the promise there won’t be multiple punishments for the conviction.

Self-incrimination, a defendant cannot be forced to provide testimony, which may incriminate them with the crime being investigated.  If you paid attention to the Congressional investigations into the IRS targeting scandal of the recent administration you would have noticed several instances where this protection was invoked, sometimes to the absurd.

The due process clause outlines the idea the government, with all its resources will play fair with the defendant.  The idea of fair play is a good one, too often flawed in execution, but you have to admire the fact we can fall back on the Constitution should the government not play fair.

Finally, the just compensation clause.  The framers recognized there would be times the government would just have to have a piece of property.  Maybe it was for the view, maybe they wanted a port for the Navy, a spit of land for a fort or a lighthouse, or just wanted to have a big park, or whatever.  They set this up so the government had to pay the owner of that land a fair compensation.  Somehow this clause seemed to be overlooked when dealing with native Americans, but that’s a whole different story.  The most troubling new development in this area is the idea the government can take your property and give it to someone else, as approved by the Supreme Court in Kelo v. City of New London, 2005

Well there we have the Fifth…

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