By advice of counsel, Senators…

| July 11, 2019

5th Amendment

Veritas Omnia Vincit has been out and about, and not saying where or why. Which is especially suspicious considering the topic of his post. Just kidding, bro. Here’s VOV, back from his walk-about and providing us with his thoughts:

I Plead The Fifth, Is It Far Too Big For One Article?

By Veritas Omnia Vincit

“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.”
The short answer to the opening question is absolutely too big for a single article. There are volumes of work on single aspects of the fifth amendment dissecting the legalese that surrounds the evolving interpretation of that paragraph. Once again in an effort to provide a simple overview, I’ll define what I believe is accurate in purpose of this amendment and offer some observations.

Some law libraries indicate that the Supreme Court has taken the fifth amendment as a basic outline on police and court procedures. Here’s the basic synopsis thanks the US Senate, indictment by a grand jury requires the decision of ordinary citizens to place one in danger of conviction. Double jeopardy means that when one has been convicted or acquitted, the government cannot place that person on trial again. The self-incrimination clause means that the prosecution must establish guilt by independent evidence and not by extorting a confession from the suspect, although voluntary confessions are not precluded. Due process of the law requires the government to observe proper and traditional methods in depriving one of an important right. Finally, when the government seizes property to use in the public interest, it must pay the owner fair value. Clearly far too big for 7-10 paragraphs on a website. As with all my other short essays (or long depending on your view) I offer a few insights with some basic background and leave it to you to undertake a more thorough examination of your fifth amendment protection which I encourage wholeheartedly.

The history behind some of this amendment extends as far back as the Magna Carta, when the monarchy was first required to relinquish some of its absolute power over it subjects. The requirement for Grand Juries extends clearly back to 1215 and the idea that placing a group of citizens between the Crown’s prosecution of any one of its subjects accused of a crime. An important shielding from the weight of the government abuse for every citizen in this great nation. The founders were clearly tired of the use of Government’s power to take property, to imprison without due process, to force confessions and wanted no such practices in their new nation. This is an important element of this amendment as it is of all the amendments, this is not an amendment that applies to the people this is a clear set of restrictions on Government. Many of our fellow Americans today seem to forget that notion that the Bill of Rights is not a set of rights granted the people but a set of restrictions against government intrusion into our natural born rights. In an earlier article I had mentioned John Locke and his influence is all over the fifth amendment.

Double Jeopardy is fairly self explanatory, there are however several instances where it’s not as clearly understood. It’s important to note that rulings of acquittal by a jury are well recognized as a final conclusion of the matter. Acquittal by the trial judge usually precludes appeal and retrial as well, except in those cases where the jury convicts but the judge determines the state hasn’t made its case. Those situations allow for the government to appeal not for a new trial but for simple reinstatement of the jury’s verdict of guilty the government will often not appeal those cases but it is possible and it has been done. The finality of acquittal has stood even when the judge has erroneously excluded evidence and then acquitted based on the remaining evidence being insufficient to convict, as was the case in Sanabria. This is an important restriction and the SCOTUS has often ruled to limit the government to protect the people.

Which brings us to the right to remain silent and due process in stripping one of their rights to property, to life, and to liberty. Two massively large concepts and two of the most powerful restrictions on government. The Drug War has seen some interesting intrusions into the taking of property without due process under civil means. It is another indication that much of the Drug War’s intended purpose has been subverted to the taking of low hanging fruit as opposed to actually stopping the flow of illicit drugs into the nation. I will discuss this a bit more in the article on the eighth as I think much of it is far more appropriate to that particular amendment. However the due process aspect of the fifth using the incorporation clause of the fourteenth is an important principle that will be the basis for additional to challenges to the states abuse of these protections. The right to remain silent is so important Police are required to tell you about it while you are being arrested, largely because of the fact prior to Miranda the Police were abusing this right with regularity. The SCOTUS determined the right was so important that the Government must notify people upon arrest in an effort to educate everyone that cooperation with the Government was often just a ruse to put them in jail.

Recent events with the Trump team members being convicted or at least prosecuted for perjury are a great reminder of the importance of not cooperating and remaining silent. Unless you are the victim of a crime there is absolutely no benefit to speaking with Police of investigators regarding any crime to which you have knowledge. Using their lies to investigators Trump’s associates have been tried, not for anything having to do with collusion but for lying to investigators. You can’t be prosecuted for lying if you tell the truth, or even easier don’t even cooperate or talk with investigators. There has been some dispute about this and whether the founders meant it to be an all encompassing right to silence, or a more narrowly defined right only under oath at one’s own trial. Some recent court rulings have suggested the latter very narrow definition. There is a problem with that concept however as read literally and narrowly, this right would be limited to precluding the prosecution in a criminal case from compelling the defendant to testify, presumably under oath, against himself. Such an interpretation would have rendered the right meaningless at the time it was written and ratified, since defendants were disqualified from testifying under oath at their own trials whether they wanted to or not. Thus, even if there were no Constitutional right not to be compelled to testify against oneself, no defendant could be compelled to do so at the time the fifth Amendment became part of our constitution. Consequently it’s inappropriate to define it so literally, and the idea that one is never to be required to cooperate with the Government is the correct understanding especially in the context of the time frame in which it was written.

The final component, that of your property being protected was extremely important to the founders, Jefferson believed Locke’s principle that all of us are entitled to the fruits of our labor in terms of privacy and freedom on our property to enjoy as we will. The founders were big on the Government’s ability to take property be severely limited especially after being victimized by the Crown in capricious land taking under the premise the Crown owned everything and we were all just tenants. Context matters in all of these amendments, these restrictions on Government. The context of this document was that those who wrote it had just concluded a war killing and forcing the surrender of the Army of the previous rightful owners of the land (at least the Crown believed itself to be the rightful owners of all of America). These were not some guys playing at Government from the confines of DC never having worked a day in their lives. These were successful businessmen who risked everything they had including their lives to conduct this war. They encouraged their neighbors to join them in a violent war of Independence against what they viewed as a tyrannical, unaccountable foreign occupation.

That was the context, they had purposely destroyed the previous Government and forced it out. They had no interest in creating another abomination in its place to rule the people. They would be appalled at the relative apathy of today’s Americans who willingly surrender their rights to some notion of safety. Who willingly accept that the Drug War and the War on Terror and their intrusions into the Amendments is a necessary condition for our own personal safety. When we have these discussions about the nature of the Amendments and what the founders intent was we often overlook the reality of the time frame that immediately preceded the creation of this document. That is a serious failure in my view as the context of what they had just done and what they were looking to prevent from happening again is extremely important. In that context it is clearly safe to presume that at anytime one questions whether they meant to allow the government to do something to the people or to protect the people the answer is always to protect and safeguard the people even at the expense of crippling or limiting government.

Again a far too short medium for a topic of this depth and the countless laws and court cases discussing all its various angles and permutations. Thank you for bearing with me as I offer my meager thoughts on these amazing restrictions on our Government still so perfectly considered almost 250 years after being written.

VoV

Thanks, VOV. The Founders well knew what harm a powerful government could (and did!) inflict on its citizens, and saw the need to curtail it.

Category: Guest Post, Reality Check, The Constitution

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Club Manager, USA ret.

Nothing wrong with taking the “fifth” as long as its Jim Beam Rye, a single malt Scotch or the like.

Mason

I’m on another forum where people ask cops questions. They ask if it’s true that we think people who wait for a lawyer to talk look more guilty. I always answer the same.

Cops (and society at large) will always tell you that it makes you look guilty to wait for a lawyer, but when cops are involved in a shooting, the first call after their wife/husband is to a lawyer. They don’t say shit without a lawyer present. So take from that what you will.

Thunderstixx

AND !!!
It is always good to have a lawyer ready to answer the call if you are involved in a self defense shooting, stabbing or any other type of altercation where you were defending yourself against someone or someone’s that are attempting to relieve you of your property, your dignity by force and especially your life.
I used to work for Texas Law Shield in Houston.
Even though I left the company because I wasn’t too enthused about their choices in management, I still have that program and the number is on my cell phone. The top of the list too…
If you are involved, say nothing until you call a lawyer.
There are many different lawyer referral services across the country, choose well, it may save you from some serious legal trouble, but I would suggest that even if you don’t carry a firearm, It is still good to have one of them on your phone.

Anonymous

Don’t forget “My training kicked in!” after they plugged the deaf person for not stopping when they told him to.

5th/77th FA

We are in deep mourning over the loss by fire of all the FIFTHS of Jim Beam here recently.

As the Chief on In The Heat of The Night used to say…”You got the right to say not one damn word.”

Thanks VoV. I agree that our rights and freedoms have been gradually eroded recently over the promise of more “security.”

If you give up freedom for security you may soon have neither.

David

Please, guys, counsel gives you legal advice, council is a group of people.

jimmyb

A close buddy of mine who is in law enforcement advised me that if- I’m ever in a situation where I get questioned (excludes traffic tickets ok) you say this, ” I intend to co-operate fully with the law enforcement agencies and will be happy to have an interview with them as soon as I have my attorney present.”

Slow Joe

Too long, didn’t read.

Is there a BLUF version?