09 September 2009

You Can't Make Me Talk!!!

Well, I need to first apologize for taking so long to continue my educational series on The Bill of Rights. Now, let’s get down to business, shall we? “My client takes the fifth amendment…” I am sure you have heard that line uttered in several movies and television shows through the years; I mean who hasn’t. Yes, it is true the Fifth Amendment means one can refuse to answer questions when the answer could provide self-incriminating evidence of illegal conduct. That’s all it’s about, right? Wrong!

The full reading of the Fifth Amendment goes like this, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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.”

That’s a mouthful! There is simply too much information on the Fifth Amendment to put it all here so I will briefly cover the different aspects of this amendment. First, let’s talk about grand juries; what exactly is a grand jury? Well this is a jury of citizens that are presented evidence in a closed proceeding (meaning no media) by the prosecution. These people review that evidence using rules given them by a judge and they then determine if the evidence warrants a trial, in which case an indictment is issued to the defendant. This also means the defending attorney cannot be there when the evidence is presented and evidence that may have been acquired in violation of the Fourth, Fifth or Sixth Amendments can be presented as well. Here is the other kicker, individual states have the power to abolish grand juries if they want and can institute preliminary hearings.

The next part of this amendment covers something called “Double Jeopardy”…no it’s not the game show Jeopardy’s second half where the dollar amounts double. What double jeopardy means is if a suspect is found innocent by a jury of his peers, that suspect is acquitted and cannot be tried for that particular crime again. But hold on to your hats, this part does NOT apply to situations when a jury “deadlocks” or cannot make a unanimous decision one way or the other. In that situation, a judge can declare a mistrial and the court can try the suspect again.

Now we get to the self-incrimination part, kids! In a nutshell, this little clause means a witness does not have to testify in court if that testimony would incriminate the witness. So that’s it, right? Wrong again, bucko! The self-incrimination clause also applies to questioning by police AND evidence gathered. Ever hear of the Miranda Rights, or “the right to remain silent”? That part of the clause was also put there to ensure a suspect is not forced to confess to a crime they may or may not have committed.

Another part of this amendment is “due process”. So what is due process? Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land. Basically it means if you are suspected of a crime and are arrested and tried, the government must make sure that your protections and rights were upheld during the entire process.

Now we come to my favorite part of the Fifth Amendment…Eminent Domain! What is Eminent Domain? Well it is the government’s power to take private property for "public use". The Fifth Amendment limits this power by requiring the government pay “just compensation” if private land is to be taken for public use. Unfortunately through the years, the definition of just compensation has been changed to “fair market value” of the property…which basically means the government can decide how much your property is worth. Originally, this clause tried to prevent the government from taking privately owned property for private developers. That was forever changed in 2005 when Supreme Court Justice Stevens wrote an opinion stating a government can take private property for developers if 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." (Kelo v. City of New London) Justice Sandra Day O’Connor wrote a dissenting opinion arguing the decision would allow the rich to benefit at the expense of the poor. All is not lost, dear readers, for many of the individual states have passed laws making it difficult for local governments to seize private property.

I hope I didn’t bore you with this very long narrative, folks. This little piece of mine only just touches on the highlights of the Fifth Amendment. As I have said before, don’t take my word for it, look it up for yourself and learn! Tata for now, folks…up next the Sixth Amendment…and I’ll be “speedy” next time!

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