The Fifth Amendment

The Fifth Amendment to the United States Constitution.

Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

“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.”

Many of the constraints placed upon the government by the bill of rights stem from English Common Law which itself, can be traced back to the Magna Carta of 1215. In fact, the phrases “Due Process of Law” and “Grand Jury” both have their origin in the Magna Carta. Part of those legal protections were discussed yesterday in the Fourth Amendment that prohibits unlawful search and seizure.

To arrive at matters covered by the Fifth Amendment, we can hope that law enforcement has fulfilled their obligation under the Fourth Amendment and enough evidence has been lawfully gathered to proceed to trial. Minor offenses of the law are tried at the local level, or at the State level for more serious charges. While the provisions of double jeopardy, due process of law and self incrimination apply to all criminal proceedings, the requirement for a Grand Jury only applies to special circumstances involving capital crimes or other Federal offences. Curiously, the rules of evidence gathering are not a factor in a Grand Jury hearing which may hear all evidence before determining if is there is cause to recommend indictment. It is only during the trial phase where the admissibility of evidence is actually determined.

Only the most grievous crimes and capital offences are tried at the Federal level and the Fifth Amendment requires a special process because of the severity of the punishments associated with crimes of that nature. Except in cases of military tribunals during a time of war, the Fifth Amendment requires that a Grand Jury be convened to determine cause to bring charges in a capital offence. The common thread that binds all of the amendments together is once again, a deep distrust of a strong central government. Since it was natural in early law to use the legal system to dispose of one’s political enemies, the founding fathers felt it was critical that the charges leading to a capital trial were well founded and appropriate. The use of a Grand Jury would then place a jury of peers into the process of determining if sufficient cause existed to pursue charges, thus preventing the abuse of governmental power from corrupting the process.

Double Jeopardy is probably the most confusing of the stipulations in the Fifth Amendment. “…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” You may in fact, be tried multiple times for the same crime but not under the same charge. For instance, a person that has been acquitted of first degree murder may not be tried a second time for first degree murder. In rare instances however, if sufficient evidence of guilt exists, he can be subsequently tried for second degree murder or any lesser associated charge. This provision was evidenced in the trials of the officers accused in the Rodney King case. The officers were charged with use of excessive force with one of the officers, Sergeant Koon, also charged with willfully permitting and failing to take action to stop the unlawful assault because he was the supervisory officer on the scene. The 1992 acquittal of the officers resulted in the Los Angeles riots of the same year. After the riots, the Department of Justice reinstated investigation and obtained an indictment of violations of federal civil rights against the four officers.

The federal trial focused more on the evidence as to the training of officers instead of just relying on the videotape of the incident. As a result of the 1993 Federal trial, the jury found Officer Laurence Powell and Sergeant Stacey Koon guilty, and they were eventually sentenced to 30 months in prison. The remaining two officers were acquitted of all charges.

An acquittal by jury is final and may not be appealed by the prosecution. Also, acquittal by a judge is generally final and prosecution is normally barred from seeking an appeal in that case as well. However, in cases where a conviction by jury has been overturned by a judge, the prosecution may appeal that reversal if they feel strongly that the judge is in error. Double Jeopardy also does not apply in cases where a mistrial has occurred.

The Fifth Amendment also bars the Federal government from taking private property for public use without adequate compensation.

The most famous provision of the Fifth Amendment is of course, that a defendant in a criminal trial cannot be compelled or forced to testify against himself. Out of all the protections in the bill of rights I am sure this will survive as long as Congress does regardless of the political winds. After all, Congress has probably used this provision of law far more often than we have. At last count there were:

29 members of Congress accused of spousal abuse
7 members of Congress arrested for fraud
19 members of Congress accused of writing bad checks
117 members of Congress either directly or indirectly bankrupted 2 businesses
3 members of Congress have served time for assault
71 members of Congress cannot obtain a credit card due to bad credit
14 members of Congress have been arrested on drug-related charges
8 members of Congress have been arrested for shoplifting
21 members of Congress are currently defendants in lawsuits and
84 members of Congress have been arrested for drunk driving.

No, I am not going to claim that I am “holier than thou”. We are human and we all have our bumps, bruises and warts. I probably wouldn’t taken the time to point out these human frailties if Congress had not taken to acting as though they are the elite of society and have begun to blatantly ignored the laws they have written for the rest of us to follow. When Bill Clinton lied to a Grand Jury, did it really matter what question he lied about? The point is that he lied under oath and if he were not the President he would have suffered greatly for that. Wait, let me rephrase that...If he were the President and was not a member of the controlling party of Congress, he would have suffered greatly for that. But no, once again they invoked their elitist mantra that the ruling class is exempt from such frivolous exercises as obeying a law that was obviously meant for the peasants alone.

Some argue that his marital fidelity was not a matter for the Grand Jury and I could agree with that to a point. However, the laws regarding perjury are not followed by an asterisk that point to an exclusion for questions about personal relationships, or for that matter, sitting Presidents. If there is cause to believe that the alleged relationship may have been at least partly funded with public money or was the result of the abuse of power, then it certainly becomes a question that needs to be asked. The fact is Mr. Clinton not only lied, but he lied under oath and to a Grand Jury; that is inexcusable. He could have followed the lawful path and invoked his rights under the Fifth Amendment to avoid self incrimination. I just don’t think he could have used his country charm and boyish giggle with that one and that would not have appealed to a man like him at all.

Please join me tomorrow for more on the Bill of rights.

Paul