The Fifth and Sixth Amendments, plus Miranda

Courtroom dramas have us pretty well indoctrinated about 'pleading the Fifth", where you do not have to incriminate yourself. Cop shows take that a bit further, as they remind us that you both have the right to remain silent (as a means of not incriminating yourself), and that you have the right to an attorney, which comes from the Sixth amendment. When we look, there is more to them.

V
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 offence 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 Fifth reminds us that there must be due process, both for our time and for our property. The principles regarding search and seizure from the Fourth Amendment are reaffirmed in the Fifth.

We see that for an "infamous" crime, charges will pass through a grand jury first, and yet we also see that military law can operate separately. Questions about the power of military tribunals could refer back to the amendment.

VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

You do not just have the right to a lawyer, but you have a right to get witnesses. There have to be resources in place for that lawyer, and therefore you, or a fair trial cannot be guaranteed. The jury should be impartial, so said counsel looks for prejudice during jury selection.

The attempt to get an impartial jury may lead to a request for a change of venue, but it is generally believed that justice should happen locally.

Sometimes appointed defense doesn't do a very good job, or there is prosecutorial misconduct, and then there can be grounds for a conviction to be appealed.

If a conviction is overturned you may be retried, but in the case of an acquittal you cannot be retried for that same crime.

(That is however an incident of a crime, not the charge, so in Double Jeopardy when Ashley Judd said she could kill the husband who faked his death now and walk free, that was incorrect.)

I think it's good to review these from time to time anyway, but there are a few specific thoughts I have here.

Some of them go back to junior high. One class had a civics section and we even did a mock trial where I was the judge. (We had a hung jury, so I didn't do much..) They also showed us some short films.

In one, a new technology had been developed that allowed memories to be viewed. Prosecution argued that this technology should be allowed to determine the guilt of the suspect. I believe he argued that the reason for the right not to incriminate previously was to eliminate the motivation for torture - or maybe that was what I assumed - but this was painless and accurate. The movie raised the question, and then we were supposed to debate it.

I remember feeling very uncomfortable with it. Not knowing the truth when you had a chance didn't seem right, but using the technology didn't seem right either. What I would assume now is that once you have a technology to view memories it will shortly be followed by a technology to tamper with the viewing, later born out by an episode of Star Trek: Voyager.

In the other film, we saw two alternate scenarios. In one the guy definitely committed the robbery and homicide, but he was very cool about it and asked for a lawyer and he was going to walk. In the other scenario, a guy stumbled across the murder victim after, was totally freaked out. He talked to the cops openly and they were going to nail him for it. Well, you can hope that he would get good counsel, or evidence would turn up, but it looked bad.

That, and reading many accounts of police lying and running long and tricky interrogations, means that despite being a very law-abiding person, if I get called in, I'm asking for a lawyer right away, regardless of how needless it seems.

My other thought is for Kalief Browder:

http://www.nytimes.com/2015/06/09/nyregion/kalief-browder-held-at-rikers-island-for-3-years-without-trial-commits-suicide.html?_r=0

There is no definition of "speedy" that can possibly include three years. Browder's experience was cruel and unusual punishment without a conviction, but when we believe in warehousing people in jails, that happens. When we don't think about what we really want our legal system to accomplish, that happens. When there are people who think about the system and find that it is profitable to imprison people, or to use crime as a way of enforcing social and class strata, that happens.

We have some very solid values built into the Bill of Rights, and the Constitution itself, but it is only a mockery if we don't live up to them.

The Fourth Amendment

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I don't have a ton to say about this one. I thought about bundling it with the Fifth. As we saw last week, amendments IV through VIII are all somewhat connected by their relation to the legal system. However, It makes more sense to put V and VI together, so I will probably do that.

It is worth remembering that the Bill of Rights was largely inspired by abuses under the British Crown. In the case of the Fourth Amendment, it was specifically a response to abuse of the writ of assistance, similar to a modern search warrant but too general, at least in application.

Therefore, as the law is supposed to function, our warrants need to be specific. There needs to be a cause, and a specification of what is being searched for, and it needs to be approved by a judge, whom we expect to be familiar with the law and sworn to upholding it. There is room for abuse, and it happens, but then search results can be excluded.

Ideally what this means to us is that we do not have to worry about having our lives disrupted and possessions disturbed. Theoretically it could make evidence planting and trumped up charges more difficult.

It is also a reason that the Patriot Act should never have been approved or extended. That's the main thing I have to say about that.

Amendments Four through Eight, preview

I thought about treating Amendments 4 through 8 together, because they relate to our legal system and criminal prosecution. They have interesting parts on their own, so I will continue with the individual breakdown, but I want to take another look at context. 

If you will recall, the 3rdAmendment was inspired by various Quartering Acts, including the one that was part of the Intolerable Acts. Two other acts in that set related to the judicial process.

• The Boston Port Act closed the port until the value of the tea destroyed in the Boston Tea Party was reimbursed, with no attempt to identify specific responsibility, or allow any residents of Boston to testify in their own defense.
• The Administration of Justice Act allowed the governor to move the trials of royal official to England. While it was phrased as an attempt to ensure fair trials for the officials by providing a change of venue, it put a heavy burden on the part of the accusers and witnesses. Travel might be reimbursed, but lost time and earnings were not. This made prosecution of royal officials practically impossible at a time when they were already considered abusive.

(The other Intolerable Act was the Massachusetts Government Act, repealing their charter, bringing the colony directly under royal control and limiting even their ability to hold town meetings. I think we can see its impact more in the body of the Constitution than in any of the amendments.)

We could be spending more time on the amendments than is necessary, but I find it interesting, and I believe that understanding more of why our laws were formed as they were can be important as we continue to look to these laws in the future.

The Third Amendment

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

With the 2nd Amendment last week, I didn't want to get too much into original intent or historical context or all of the arguments that come up when people debate constitutional law pertaining to guns. What I hadn't thought about was how interesting that discussion can be when you think of the 2nd and 3rd amendments together.

The 3rd doesn't come up much. I think the last time it was referenced in a major case was in the 70's, and it came up because you had a case where there was employee housing that was taken over by National Guard troops who were coming in due to a strike that also led to the eviction of the employees. It doesn't feel like it would ever come up, but that wasn't always the case.

When the colonists were trying to exert some independence in peacetime, and the mother country was insisting on keeping a standing military present, and that the colonists would pay for the upkeep of that army, that was a source of conflict.

It was an issue in 1765, with conflicts between Parliament and governors and twelve of the thirteen colonies finding ways to subvert it.

It was an issue in 1774 when the new Quartering Act was one of the four "Intolerable Acts" as the tension was getting closer to its eventual eruption into war.

So when the Bill of Rights was written, this was fresh in memory. In that context, the emphasis on the militia in the 2nd Amendment makes sense, and with the 3rd Amendment they operate together to guarantee that our government will not use the military to intimidate or tyrannize us.

Since then we have decided to keep a standing military, and their board and provisions come out of taxes. That is a shift from what was envisioned originally, and there are reasons where it makes sense. That the government will not tell you that you have to accept the soldiers into your home is traditional now anyway, and other laws about the rights of citizens and their homes could act as an argument against it if necessary. It just wasn't always that way.

Sometimes it's interesting to look back and remember.

The Second Amendment

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

I'm not going to go the traditional route on this, because the arguments over it get overplayed as it is. Instead I am going to focus on an aspect that I find interesting.

In the conflict between the Federalists who supported the ratification of the new Constitution and the Anti-Federalists who opposed it, a large concern was over individual rights. Given the tyranny of the British government, their concerns were reasonable, and the Bill of Rights is an important answer to those concerns.

What we frequently see though is that while people may have in mind that they need to protect against overreach from a government that wants to control them and take away their liberties, conflicts actually arise from individuals or groups trying to impose on the freedom of other individuals or groups, and the government becoming the protector, or failing to as the case may be.

When you have other countries who don't think this new republic can make it, a militia is necessary, though without proper regulation it can lead to more trouble. There could still be times when it is necessary to defend against an invading force.

It is more common for the enemy to come from within. Perhaps that is why it is so popular to frame different groups as outsiders, and not real citizens.

We have referred to regulation of gun sales as being allowable under the Commerce Clause. In addition, based on what the government talks about, there is no reason to believe that the intention is to completely halt all sales or to start seizing guns. Despite logic, there is enough paranoia about it that every mass shooting spikes an increase in gun purchases.

However, if the government, with the full power of the military, despite any indication of that desire and in spite of all the checks and balances in the Constitution actually starting seizing guns, these stockpiles would be very ineffective.

So perhaps it would be more valuable to focus on things that are happening, and devote some resources to that.