The Fifth Amendment, most people only know a small portion of its entirety and even fewer understand all that it entails. The Fifth Amendment is one of our most important rights as humans residing as citizens within these United States. This amendment impacts the law process of rights for each individual American.
The Fifth Amendment states: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 incases 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 (1).
Once we render the text of the Fifth Amendment, we can see that this is a very complex amendment with multiple rights intertwined.
There are six sanctioned off parts of the Fifth Amendment:
These sanctioned off parts of the Fifth Amendment help to protect individuals from unjust treatment while being shuffled through the justice system; such as: the right to indictment of a Grand Jury, the case of Military cases in War time, protection of double jeopardy, against self-incrimination such as perjury, nor deprived of human rights, and the right of private property being used for public use without just compensation. Each fragment of this Amendment will be discussed further.The first fragment of the Fifth Amendment we will be inspecting is the indictment of a Grand Jury.’ Grand Juries were originally intended to protect the accused from overly-zealous prosecution (3).
To this day, Grand Juries still protect against these types of prosecutions but, they also investigate whether probable cause exists to the point of supporting charges in a case brought forth in a courtroom. Not to be confused with a Petite Jury who decides the facts. Petite juries only preside over trial cases yet, grand juries aid in cases that range from federal ” to -state ” to ” county courts. A prosecutor will work with a grand jury to decide whether to bring criminal charges or an indictment against a potential defendant ” usually reserved for serious felonies (4). The next section is where we start to dig more into the depths of the Fifth Amendment, is that of cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.’ A paymaster’s clerk in the navy, regularly appointed, and assigned to duty on a receiving ship, is a person in the naval service of the United States, subject to be tried and convicted, and to be sentenced to imprisonment, by a general court-martial, for a violation of section 1624 of the Revised Statutes (5).
Double Jeopardy is the next shard of the Fifth Amendment. When it comes to the double jeopardy clause it is only applied to federal government at first incorporation doctrine, Supreme Court has incorporated certain amendments and clauses to States. Benton v Maryland, 395 U.S. 784 (1969) the Supreme Court incorporated the double jeopardy clause against the States (6). There are three aspects of the Fifth Amendment that were incorporated within the States systems which are:
However, the states can decide on their own whether or not the use of a grand jury is compulsory. Double Jeopardy in its entirety has many aspects to itself. There are certain cases that are eligible to be tried at state and federal level, there are certain cases that involve plea bargaining deals at a state level that acquit the option to try at a federal level and vice versa, as well as there are cases that are excluded from the double jeopardy doctrine all together. These characteristics will be examined singularly in detail. Cases that can be tried at both State and Federal level do have certain stipulations on doing so. Within the American court system, state courts and federal courts can try the same person for the same crime without violating the double jeopardy clause in the Fifth Amendment due to, separate sovereigns.’ What does separate sovereigns’ mean exactly? By law, the two court systems (state and federal) are considered as two separate entities. [Individual states are not just subdivisions of the federal government but sovereigns with independent powers of their own] (8).
At state level there are certain laws if broken can be tried in state courts and if the state law is also intertwined in a federal law, then the federal court system can also try for the same crime because that one crime falls under both state and federal systems. An example is Gamble v United States (2004). Gamble, a convicted felon within the State of Alabama, was pulled over. After the vehicle search was completed by the arresting officer (end result), Gamble was found to be in possession of a 9mm pistol, a digital scale, and marijuana (9). Gamble was arrested and tried in both state and federal courts. Gamble committed the crime of not only intent to sell, intent to distribute, possession of drug paraphernalia (considered to be all state crimes), he was a convicted felon in possession of a firearm. In the State of Alabama, it is against the law for a convicted felon to be in possession of a firearm. This law holds true at a federal level as well. Due to the separate sovereigns’ both systems can then file charges and try Gamble for the same crime (being a convicted felon in possession of a firearm) without the burden of violating Gamble’s rights of protection of double jeopardy under the Fifth Amendment. A more detailed and straightforward approach of explaining the separate sovereigns’ and double jeopardy is as follows: [The US Supreme court said that an act of denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The principle was reaffirmed in 1959, and it remains a basic rule of federal criminal jurisdiction] (10).
Cases that can be tried at state and not federal levels or at federal and not state levels do in fact exist. An example of this type of incident would be of Isaac Turnbaugh. Turnbaugh was a mentally ill individual that was acquitted of murder charges against a former co-worker back in 2004. Since Turnbaugh’s acquittal, his actions been nothing but supportive to his mental capacity of not being all there.’ A few years later, Turnbaugh has confessed to the murder of his colleague back in 2004. Unfortunately, there is nothing that Vermont prosecutors can do. Isaac Turnbaugh is protected against being tried for the murder under the Fifth Amendment, more specifically, the double jeopardy clause. [It’s about fairness to the defendant. The law says we’re not going to give the government multiple times to prosecute you. We are going to value finality more than we value the truth, said Dallas ” Based attorney Tom Melsheimer] (11).
Usually, these types of cases can include a plea bargain of some sort that makes it difficult to try in both courts. An example of this is case of Sharone Sylvester Brown. Due to a plea bargain of a lesser included offense’ of a Class A Misdemeanor of assault, once Brown’s at time girlfriend Whitacre, was pronounced dead due to the punch to the side of her head by then boyfriend Brown, prosecutors could not charge Brown with murder. Once a plea bargain is agreed on and charges are filed and brought forth on the lesser included offense,’ the severe charge is then inadmissible. Courts have interpreted that to mean that s defendant cannot be prosecuted again after being acquitted, that a defendant won’t be prosecuted again after a conviction and won’t be punished more than once for the same offense (12). Brown was tried at state level and could not be tried at federal level for murder due to the fact that he did not assault Whitacre on federal property nor used a gun in the attack that cause Whitacre’s demise. In some rare cases, in some circumstances even a mistrial will entail the protection against retrial pursuant to double jeopardy (13).There are some cases that exclude the double jeopardy clause as well.
Cases that include a hung jury can be tried again without violation of the double jeopardy clause in the Fifth Amendment, as well as, if federal charges apply and the person is acquitted at a state level they can still be tried in a federal court system for those charges without being in violation. We now stride forward to our next puzzle piece of the Fifth Amendment and that piece is: self-incrimination. [Compelled self-incrimination occurs when a suspect or defendant is forced to make statements that may connect them to or implicate criminal activity. This right only applies only to statements (referred to as testimony evidence) and not the production of physical evidence] (14). When it comes to self-incrimination and the law, you are protected by the Fifth Amendment. Said Amendment protects citizens of being forced to provide evidence, answer question, or volunteer information against oneself in any criminal activity in question. Protection against self-incrimination is only applied in a criminal trial setting. The extent of this protection is against the opportunity to testify against oneself in a matter of criminal activity. Although, when on the stand, one could implicate guilt without intent against oneself or even another person included in the criminal activity in question. The next to last shard of the Fifth Amendment is that of: nor to be deprived of life, liberty, or property without due process.’ The phrase due process embodies society’s basic notions of legal fairness (15). This portion of the clause not only protects against unfair procedures, but it also protects against unfair legislation that can affect people. Courts in the US have interpreted the language of these Amendments as a limitation on substantive powers of legislators to pass laws offering various aspects of life. When applying what is called Substantive Due Process, courts look at whether a law of government action unreasonably infringes on a fundamental liberty (16). During the year 1833, there was a big moment for the Supreme Courts and the Fifth Amendment in regard to this particular fragment of said Amendment.
The US Supreme Court ruled that the Fifth Amendment was not compulsory to the state governments. However, after the Civil War, when everything was said and done, the inclusion of the Thirteenth, Fourteenth, and Fifteenth Amendments (which are also known as the Civil War Amendments), were added to protect the newly freed slaves in end of the war. Due process at a minimum, means that if the government makes a decision that will affect a citizen or multiple citizens, the government must then properly notify those that would be affected, provide knowledge of government plans, and allot time for comments by said citizens on the matter. Yet, it is also dependent on the situation at hand. An example would be: if the government decided to fire one of their employees (i.e. let’s say a US Postal Service employee), send a defendant to prison (i.e. a popular one ” Michael Cohen), or even cut the benefits of social security checks, welfare, or other government programs provided, they must first notify those individuals before any type of action is taken.
The procedure required in specific situations depend on several factors: seriousness of the harm that might be done to the citizens, the risk of making an error without the procedures, and the cost to the government, in time and money, in carrying out the procedures. In addition to notice and an opportunity to be heard, due process may include a hearing before an impartial person, representation by an attorney, calling witnesses on one’s behalf, cross-examination of witnesses, a written decision with reasons based on evidence introduced, a transcript of the proceeding, and an opportunity to appeal the decision (17). Life must not be deprived to any individual, for illustration purposes, without the laborious shield of a criminal trial as well as special fortitudes about aggravating features placed to justify death. However, there is justification in suspension of one’s driver’s license.
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