Category: Fifth Amendment

Duanes Assessment of the 5th Amendment

Professor Duanes assessment of the 5th Amendment is valid. During his lecture, the professor provides seven strong arguments to support his statement (Dont Talk to Cops, Part 1). It is clear that a perfectly innocent person can make incriminating statements due to various factors, including but not confined to being too emotional, being unaware of some laws, and being intimidated. The professor also adds that contemporary technological advances can also be used against a person who talks, which is true.

This view is supported by some researchers and practitioners. For example, Mohan and Villasenor state that the digital era is associated with various means that can help a person prove his/her innocence, but there are cases when technology can incriminate (12). Duane provides a simple example of when a person could be incriminated if his/her answers were tape-recorded, but questions were not.

Surprising Points

One of the surprising points was the fact that the police officer also supported some of Duanes arguments. He noted that innocent people might say something that may be used against them, which happens all the time. One of the factors provided is rather surprising. The police officer says that people make incriminating statements as they are stupid (Dont Talk to Cops, Part 2). A simple test held in the classroom shows that people are inattentive even if they are in a relaxed and friendly environment (Dont Talk to Cops, Part 1). Thus, even if a person is innocent, he/she can say something that can be used against him/her as the devil is always in the detail. One of the most common pitfalls is that answers can be used as regards the entire situation or even case rather than a particular question posed (Arnold and Farashahi 35).

Changing Public Opinion

It is necessary to note that the 5th Amendment is seen rather negatively in society. This right is often associated with adverse inference (Szak 11). People tend to think that if a person does not want to testify, he/she has something to hide, which makes this individual guilty. The recent case of Martin Shkreli can be regarded as a good illustration of that negative attitude as people believe the former chief executive of a pharmaceutical corporation is guilty as he does not testify (Pollack and Huetteman par. 34). It is necessary to add that people already have a negative view of the defendant as he is a representative of the pharmaceutical industry, which is seen as unfair and corrupted. People think that Shkreli does not testify, and only this makes him guilty.

Thus, concealing or simply refusing to provide certain evidence is also regarded as proof that the person is guilty. However, there are many cases when the person may want to be silent as interpretations of words can make even an innocent person guilty. Duane provides various examples of such instances (Dont Talk to Cops, Part 1). It is important to make Americans change their attitude towards this Amendment as, during courts, it is still seen as a thing against the defendant. People should understand that keeping silent is a right that protects them from errors, which are very common in the judicial system of any country, even the USA. To change this opinion, it is important to use media and start a wide debate on the matter.

Works Cited

Arnold, David L., and Afshin Farashahi. The Fifth Amendment Privilege Against Self-Incrimination in Civil Cases. Virginia Lawyer 58.1 (2009): 34-37. Print.

Dont Talk to Cops, Part 1 2008. Web.

Dont Talk to Cops, Part 2 2008. Web.

Mohan, Vivek, and John Villasenor. Decrypting the Fifth Amendment: The Limits of Self-Incrimination in the Digital Era. Journal of Constitutional Law Heightened Scrutiny 15.1 (2012): 11-28. Print.

Pollack, Andrew, and Emmarie Huetteman. Martin Shkreli Invokes the Fifth Amendment During Grilling by Congress. The New York Times 2016. Web.

Szak, Dona. Asserting the Fifth Amendment in Civil Proceedings. Energy Litigation 10.1 (2010): 10-13. Print.

Facts

The Supreme Court case, Garrity v. New Jersey recognized rigid standards for law enforcement officers concerning explanations that were given to their managers. Garitty principle applies to an officer who gives an implicating articulation out of fear that he or she may lose their source of income. It is the duty of the investigating officer to advise the subject that constrained responses would not be admissible in future hearings by a jurist. Consequently, the subjects responses would not be an exhibit in criminal proceedings. This principle protects subjects against inflammatory remarks during the investigation. However, their responses can be utilized for regulators or administrative reviews. In contrast, if the subject declines to consent or give a confession, the law stipulates penalties. In accordance with Garrity principle, the prosecutor must assure the subject that case reviews and cross-examinations must relate to the officers duty and obligations. It is important to note that the officer cannot be exposed to criminal charges when they provide false proclamations (Diagle, 2005).

Decision

It was decided that if such an episode were presented before the courts, the cross-examination and the response would be considered as pressured if the officer were given a chance to apply their Fifth Amendment rights. The decisions originated from the conclusion that it was illogical to put an enforcement officer in a situation to self-implicate or risk their integrity and occupation for conjuring the Fifth Amendment. The Garrity interpretation states that a representative can be given a request to coordinate in an inner examination and be constrained to sincerely respond to allegations concerning their superiors (McGuinness, 2013). However, responses from such investigation would remain docile in future hearings.

Alternative Solution

Based on the facts available, the decision by the jurist is appropriate. However, such decisions could create doubts and cause confusion in employees who are pressured over an obstruction from work laws. Based on this submission, McKinley v. City of Mansfield led an examination concerning the improper use of police gadgets and equipment to collect confidential information from several cordless telephones or cell phones. As a result, 30 enforcement officers were cross-examined regarding the event. One of the officers was named McKinley. The officer gave false explanations during the first meeting. However, the investigation summoned another cross-examination and applied two legal terms. The investigator applied the Garrity law to provide immunity for the respondent while admitting a criminal proceeding (Diagle, 2005). The cross-examiner was gathering information about the erroneous explanations and the event of that faithful day. It is important to note that the officer sued and won the claim because the prosecutors attempted to utilize the data under Garrity against him, which abused his Fifth Amendment Rights (Diagle, 2005).

Based on the analysis, I believe the appropriate decision was to punish the officer based on their testimonies. When a subject appears to be a dishonest, mechanism should be created to punish the individual. For example, the case of State v. Jackson is an illustration of Garrity connected with the law. The lead prosecutor did not submit any testimony from the subject. However, he approached the judge with evidence from an anonymous witness. The Ohio Supreme Judge decided that because the examiners had given a convincing report to the prosecutor, Garrity law had been abused for Mr. Jackson. The judge warned investigators to operate in accordance with the law without manipulation the Garrity principle. By implication, investigators should resist the temptation of providing confessional statements to prosecutors. The Ohio Supreme Court additionally proposed that to keep the laws isolated, employees should seek redress after court summons and judgments.

Based on the proposal, the disciplinary unit of the law should allow the court proceedings before constituting a committee of inquiry to investigate the subject. Once the court proceedings have been established, the employer can direct an inward examination to punish the worker if found liable. The human asset office should proceed with the task of finding honest enforcement officers to mitigate such occurrences. Thus, in my opinion, the Fifth and Fourteenth Amendment were disregarded in the case of McKinley v. City of Mansfield. By implication, the subject was pressured to provide confessional statements. Therefore, citing the Fifth Amendment, I believe that the officers implicating confessions cannot be used in the court (McGuinness, 2013). In view of the discoveries, the division sacked the officer who was later restored with full privileges. The court held that McKinleys testimonials were inadmissible because of the Garrity principle. McKinley documented a claim showing they abused his Fifth Amendment rights by compelling him to provide implicating confessions that were later utilized as a part of an indictment against him.

Conclusion

Garrity laws were created to guarantee that constrained or pressured testimonies are not admissible in criminal proceedings. Therefore, the police department should act with caution to avoid such occurrence. Internal investigation should only be escalated after the courts have given its judgment. However, if the Garrity principle has been invoked, confessions should be allowed no matter its implication. The report would be treated without external investigators.

References

Diagle, E. (2005). Garrity warning: To give or not to give, that is the question. Web.

McGuinness, J, (2013). Fifth Amendment protection for public employees: Garrity and limited constitutional protections from use of employer coerced statements in internal investigations and practical considerations. Touro Law Review, 24(4), 1-44.

Overview

The first 10 amendments to the U.S. Constitution are known as the Bill of Rights written in 1791, which outlines basic civil rights, freedoms, and limits on governmental power. It introduced as states sought to ensure the protection of individual freedoms. The Fourth Amendment guarantees the right of citizens to be secure in their persons, homes, and personal effects against unlawful and unreasonable search and seizure. The amendment requires a warrant given under probable cause in order to conduct any searches.

The Fifth Amendment provides protection for a person to answer for a capital crime unless indicted by a grand jury, be charged for the same crime, or be compelled to testify against themselves. The Sixth Amendment guarantees the right to a quick, fair, and public trial by an impartial jury and the ability to face the accusation and provide witnesses. The Eighth Amendment protects citizens from excessive bail, fines, and punishments inflicted upon someone charged with a crime (Siegel, Schmalleger, & Worrall, 2010)

Fifth Amendment and Procedures

The Fifth Amendment helps to establish a due process that provides the opportunity for trial by a grand jury. A grand jury must issue an indictment for criminal charges for felonies. In all relevant common law court cases, a grand jury must be selected. The defendant has the right to challenge the jury. The right against “double jeopardy” is critical protection, meaning that a person cannot be persecuted for the same offense simultaneously (offering more than one punishment for the offense) or again after conviction or acquittal. Jeopardy implies a danger of conviction, so it does not apply to review of sentence length, appeals, or mistrials (Kim, 2017).

The right against false incrimination allows, in any case, to use the Fifth Amendment to avoid testifying against themselves or in any self-incriminating manner. Both defendants and witnesses may avoid answering a question that they believe will be incrimination. Furthermore, the landmark case of Miranda v. Arizona set a precedent that the Fifth Amendment encompasses situations outside the courtroom as well.

Under this court decision, law enforcement is required to read an arrested person his Miranda rights (Miranda v. Arizona, 1966). Therefore, a citizen can plead the Fifth during police questioning as well or if rights aren’t read, statements will not be used in court. A lesser-known clause of the Fifth Amendment also guarantees that if the government takes private property for public use, fair compensation must be provided to the owner in accordance with the market price (Kim, 2017).

Implementation

Generally, the Fifth Amendment holds a vital place in the framework of law enforcement and judicial procedures. Nevertheless, it is an amendment that has undergone little change in the last decades. The amendment’s right to due process by a grand jury is justifiable and is in line with Constitutional values. However, I disagree with the use of the Fifth Amendment to avoid questioning during trial or interrogation.

There should be limits such as the use of torture, force, pressure, or loaded questions to force an answer from the victim. The use of the Fifth Amendment in high-profile political or financial cases where small details have potentially implicating outcomes should require certain reexamination. The self-incrimination clause greatly limits the government’s ability to use suspects during testimonials and, at times, has led to unlawful interrogations or use of unnecessary “sting” operations (Amar & Lerner, 1995).

However, in terms of Miranda rights, there are arguments that the amendment leads to under regulation of the police. Generally, the use of technology and recording has reduced the need for confessions. And Miranda serves as a compromise between security and autonomy. The changes in the reality of law enforcement operations suggest that security is more important and reviews the judicial review process (Dripps, 2017). Therefore, changes should be made to Miranda rights under the Fifth Amendment.

References

Amar, A. R., & Lerner, R. L. (1995). Fifth amendment first principles: The self-incrimination clause. Michigan Law Review, 93, 857-928. Web.

Dripps, D. A. (2017). Miranda for the next fifty years: Why the fifth amendment should go fourth. Boston University Law Review, 97, 893-933. Web.

Kim, J. (2017). Fifth amendment. Web.

Miranda v. Arizona, 384 U.S. 436 (1966).

Siegel, L. J., Schmalleger, F. J., Worrall, J. (2010). Courts and criminal justice in America (3rd ed.). London, England: Pearson Learning Solutions.

The double jeopardy clause of the constitution aims at protecting an individual from the subjection of hazardous trials. It prevents a person from the possible retribution for alleged offenses for more than once. Ideally, it prompts the state and all its jurisprudence not to repeat a mistake by convicting an individual out of groundless allegations (Chacon 13). The States should, therefore, dedicate resource and manpower to ensuring aversion of such embarrassment and expenditure. It safeguards the public from the notion that they may be guilty of an offense even as they pursue their rightful course of life. Back in the day, double jeopardy development was very uneven with variable meanings. It did not build up well with the early American communities.

However, during the development of England, it became known that a defendant in a case could state former acquittal or conviction and avoid the prosecution (Doyle 5). The universal law upon which the jurisdiction acted was a subject of this rule. Following the revolution in the law society, the rule was given different meanings depending on the preferred mode of use in the prevalent conditions. Over the years, the law was elevated to become fundamental in the trials and the handling of cases in the courts. It found its way into the bill of rights and soon became known as the double jeopardy clause of the 5th amendments (Kumar 21). During its inaugural representation to the representative house, Madison read that it was illegal for one person to receive conviction of the same felony twice (Rudstein 14). Nevertheless, he made an exception for the case of impeachment.

On a different opinion, the opponents claimed that a guilty person could easily construe such a rule in the second trial. In addition, the opponents of the amendment argued that the double jeopardy could be detrimental to the defendants, because the appellate court would have to reverse the conviction in the case of a no new trial (Kumar 25). As a result of these, the present statutory of the law became endorsed by the legislature. The historiography of the clause shows the extent at which it alienated the federal government. The limited nature of the law in the states instigated a procedure to ensure the application of all amendments in all the counties.

In conjunction with this, the bill of rights became incorporated in the double jeopardy clause of the 5th amendment (Duignan 15). The human rights constitute the basis of the state’s liberty. On the contrary, the double jeopardy was not substantially significant in the explanation of how to handle things in the court. Like other procedural rights, the absence of the clause could still validate the trials as they could still be accorded the requisite justice. On the other hand, a defendant might be convicted to some allegation in the absence of the double jeopardy clause. It can be a violation of the state’s rule of law, but that was not the case with Palko (Chacon 17). In another case of Maryland v Benton, the Court said that the prohibition of double jeopardy forms a fundamental ideology in the American constitutional heritage (Rudstein 18).

Once it becomes a part of the bill of rights, it proves to be essential in the American judicial system. On the brighter perspective, the same constitution is under the use by the federal and the state governments (Rudstein 8). As a result, the limitations of the clause of double jeopardy in the realms of individual right is experienced at both the state and the federal level. The only hard challenge to the implementation of the 5th amendment emanates from the fact that different government units prefer different modes of the evaluation of justice. They have different interests in the handling of cases that involve criminal acts and the acts of enforcing laws. Owing to this, it leads to the case of an overlapped jurisdiction that creates a barrier that hinders the right application of the double jeopardy clause (Duignan 23). Mainly, the perpetrators of the alleged crimes might have been involved in crimes that transcend across several of the government units.

The court suppressed all acts of convicting the same criminal by two government units. In fact, when two different administration entities serve under a similar rule of law, double jeopardy prohibits them from pressing two lawsuits against a person for the same offense (Kumar 28). As a consequence of this, the dual sovereign nature of some cases allowed some countries to conduct similar trials for the same case under consideration. The double jeopardy clause protects the indictment of a party charged with a known crime whether by statute or in the common law (Rudstein 31). Out of the ordinary, civil rights may not be termed as punitive on the verge of the double jeopardy analysis. Furthermore, the primary purpose of the clause is the protection of the defendant against multiple trials through making an appeal to the initial ruling. However, there is an exception to some cases which judgments cannot be reversed. Specifically, the decisions on non-final orders are not subject to the double jeopardy clause of the 5th amendment.

References

Chacon, Jennifer. Criminal Procedure: The Fifth Amendment It’s Constitutional History and the Contemporary Debate. New York: Prometheus Books, 2011. Print.

Doyle, Charles. Crime and Forfeiture. Washington, D.C.: Congressional Research Service, Library of Congress, 2007. Print.

Duignan, Brian. The U.S. Constitution and Constitutional Law. New York: Britannica Educational Pub, 2013. Print.

Kumar, Lisa. American Law Yearbook 2013: A Guide to the Year’s Major Legal Cases and Developments. Detroit, Mich: Gale, 2014. Print.

Rudstein, David S. Double Jeopardy: A Reference Guide to the United States Constitution. Westport, Conn: Praeger, 2004. Print.

Duane’s Assessment of the 5th Amendment

Professor Duane’s assessment of the 5th Amendment is valid. During his lecture, the professor provides seven strong arguments to support his statement (“Don’t Talk to Cops, Part 1”). It is clear that a perfectly innocent person can make incriminating statements due to various factors, including but not confined to being too emotional, being unaware of some laws, and being intimidated. The professor also adds that contemporary technological advances can also be used against a person who talks, which is true.

This view is supported by some researchers and practitioners. For example, Mohan and Villasenor state that the digital era is associated with various means that can help a person prove his/her innocence, but there are cases when technology can incriminate (12). Duane provides a simple example of when a person could be incriminated if his/her answers were tape-recorded, but questions were not.

Surprising Points

One of the surprising points was the fact that the police officer also supported some of Duane’s arguments. He noted that innocent people might say something that may be used against them, which happens all the time. One of the factors provided is rather surprising. The police officer says that people make incriminating statements as they are “stupid” (“Don’t Talk to Cops, Part 2”). A simple test held in the classroom shows that people are inattentive even if they are in a relaxed and friendly environment (“Don’t Talk to Cops, Part 1”). Thus, even if a person is innocent, he/she can say something that can be used against him/her as the devil is always in the detail. One of the most common pitfalls is that answers can be used as regards the entire situation or even case rather than a particular question posed (Arnold and Farashahi 35).

Changing Public Opinion

It is necessary to note that the 5th Amendment is seen rather negatively in society. This right is often associated with adverse inference (Szak 11). People tend to think that if a person does not want to testify, he/she has something to hide, which makes this individual guilty. The recent case of Martin Shkreli can be regarded as a good illustration of that negative attitude as people believe the former chief executive of a pharmaceutical corporation is guilty as he does not testify (Pollack and Huetteman par. 34). It is necessary to add that people already have a negative view of the defendant as he is a representative of the pharmaceutical industry, which is seen as unfair and corrupted. People think that Shkreli does not testify, and only this makes him guilty.

Thus, concealing or simply refusing to provide certain evidence is also regarded as proof that the person is guilty. However, there are many cases when the person may want to be silent as interpretations of words can make even an innocent person guilty. Duane provides various examples of such instances (“Don’t Talk to Cops, Part 1”). It is important to make Americans change their attitude towards this Amendment as, during courts, it is still seen as a thing against the defendant. People should understand that keeping silent is a right that protects them from errors, which are very common in the judicial system of any country, even the USA. To change this opinion, it is important to use media and start a wide debate on the matter.

Works Cited

Arnold, David L., and Afshin Farashahi. “The Fifth Amendment Privilege Against Self-Incrimination in Civil Cases.” Virginia Lawyer 58.1 (2009): 34-37. Print.

Don’t Talk to Cops, Part 1 2008. Web.

Don’t Talk to Cops, Part 2 2008. Web.

Mohan, Vivek, and John Villasenor. “Decrypting the Fifth Amendment: The Limits of Self-Incrimination in the Digital Era.” Journal of Constitutional Law Heightened Scrutiny 15.1 (2012): 11-28. Print.

Pollack, Andrew, and Emmarie Huetteman. “Martin Shkreli Invokes the Fifth Amendment During Grilling by Congress.” The New York Times 2016. Web.

Szak, Dona. “Asserting the Fifth Amendment in Civil Proceedings.” Energy Litigation 10.1 (2010): 10-13. Print.

Facts

The Supreme Court case, Garrity v. New Jersey recognized rigid standards for law enforcement officers concerning explanations that were given to their managers. Garitty principle applies to an officer who gives an implicating articulation out of fear that he or she may lose their source of income. It is the duty of the investigating officer to advise the subject that constrained responses would not be admissible in future hearings by a jurist. Consequently, the subject’s responses would not be an exhibit in criminal proceedings. This principle protects subjects against inflammatory remarks during the investigation. However, their responses can be utilized for regulators or administrative reviews. In contrast, if the subject declines to consent or give a confession, the law stipulates penalties. In accordance with Garrity principle, the prosecutor must assure the subject that case reviews and cross-examinations must relate to the officer’s duty and obligations. It is important to note that the officer cannot be exposed to criminal charges when they provide false proclamations (Diagle, 2005).

Decision

It was decided that if such an episode were presented before the courts, the cross-examination and the response would be considered as pressured if the officer were given a chance to apply their Fifth Amendment rights. The decisions originated from the conclusion that it was illogical to put an enforcement officer in a situation to self-implicate or risk their integrity and occupation for conjuring the Fifth Amendment. The Garrity interpretation states that a representative can be given a request to coordinate in an inner examination and be constrained to sincerely respond to allegations concerning their superiors (McGuinness, 2013). However, responses from such investigation would remain docile in future hearings.

Alternative Solution

Based on the facts available, the decision by the jurist is appropriate. However, such decisions could create doubts and cause confusion in employees who are pressured over an obstruction from work laws. Based on this submission, McKinley v. City of Mansfield led an examination concerning the improper use of police gadgets and equipment to collect confidential information from several cordless telephones or cell phones. As a result, 30 enforcement officers were cross-examined regarding the event. One of the officers was named McKinley. The officer gave false explanations during the first meeting. However, the investigation summoned another cross-examination and applied two legal terms. The investigator applied the Garrity law to provide immunity for the respondent while admitting a criminal proceeding (Diagle, 2005). The cross-examiner was gathering information about the erroneous explanations and the event of that faithful day. It is important to note that the officer sued and won the claim because the prosecutors attempted to utilize the data under Garrity against him, which abused his Fifth Amendment Rights (Diagle, 2005).

Based on the analysis, I believe the appropriate decision was to punish the officer based on their testimonies. When a subject appears to be a dishonest, mechanism should be created to punish the individual. For example, the case of State v. Jackson is an illustration of Garrity connected with the law. The lead prosecutor did not submit any testimony from the subject. However, he approached the judge with evidence from an anonymous witness. The Ohio Supreme Judge decided that because the examiners had given a convincing report to the prosecutor, Garrity law had been abused for Mr. Jackson. The judge warned investigators to operate in accordance with the law without manipulation the Garrity principle. By implication, investigators should resist the temptation of providing confessional statements to prosecutors. The Ohio Supreme Court additionally proposed that to keep the laws isolated, employees should seek redress after court summons and judgments.

Based on the proposal, the disciplinary unit of the law should allow the court proceedings before constituting a committee of inquiry to investigate the subject. Once the court proceedings have been established, the employer can direct an inward examination to punish the worker if found liable. The human asset office should proceed with the task of finding honest enforcement officers to mitigate such occurrences. Thus, in my opinion, the Fifth and Fourteenth Amendment were disregarded in the case of McKinley v. City of Mansfield. By implication, the subject was pressured to provide confessional statements. Therefore, citing the Fifth Amendment, I believe that the officer’s implicating confessions cannot be used in the court (McGuinness, 2013). In view of the discoveries, the division sacked the officer who was later restored with full privileges. The court held that McKinley’s testimonials were inadmissible because of the Garrity principle. McKinley documented a claim showing they abused his Fifth Amendment rights by compelling him to provide implicating confessions that were later utilized as a part of an indictment against him.

Conclusion

Garrity laws were created to guarantee that constrained or pressured testimonies are not admissible in criminal proceedings. Therefore, the police department should act with caution to avoid such occurrence. Internal investigation should only be escalated after the courts have given its judgment. However, if the Garrity principle has been invoked, confessions should be allowed no matter its implication. The report would be treated without external investigators.

References

Diagle, E. (2005). Garrity warning: To give or not to give, that is the question. Web.

McGuinness, J, (2013). Fifth Amendment protection for public employees: Garrity and limited constitutional protections from use of employer coerced statements in internal investigations and practical considerations. Touro Law Review, 24(4), 1-44.