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The Purpose of the Fifth Amendment in the Bill of Rights
Tuesday, September 30 2008 @ 09:20 PM EDT

I'm thinking that we need a few fun classes on the Bill of Rights to the US Constitution.

No. Really.

If you'll try to pay attention, I'll try to make it enjoyable.

I've written about the First Amendment a few times (here, here, and here), and frankly some of your comments made me suspect that at least a handful of you snoozed through Civics Class, and others of you are not USians and so the Bill of Rights is just a piece of paper to you. To be totally frank, some USians seem to view it that way nowadays too. So, I thought it would be useful to explain it. Try to think of it as history class about the purpose of the founding fathers, because otherwise we'll get sidetracked on the level of implementation in the news and politics, and that isn't what Groklaw is for. But explaining the law and how the courts work, that *is* what Groklaw is for.

Why take the time for this? The simple -- and utterly serious -- truth is this: you can't understand US law or what federal courts do without comprehending the US Constitution and its Bill of Rights. It's bedrock. Courts are obligated to uphold the Constitution, and the higher you go in the US legal system, the more likely they are to do so. It's what they are for. I'd call it a job description. So as time permits and I come across ways to address this topic, I'll do so. That way, at least you'll understand certain decisions that otherwise mystify and sometimes outrage you. Like... dare I mention that hated word, spammers? So here I go. I hope you'll come along. Yes. You too, my dear knuckleheads.

Groklaw's JC Carr sent me a link to this very enjoyable video on the Fifth Amendment, which is how I came up with the idea for this new topic. The Fifth Amendment is the one about the right not to incriminate yourself, among other things. But what I want you to look for is the concept and purpose behind it, what its authors were striving for.

It's an enjoyable lecture by Professor James Duane of Virginia University, who has a lovely sense of humor, and Police Officer George Burch of the Virginia Beach Police Department, who I hope never to sit across a table from in a small room, speaking on the Fifth Amendment, a lecture presented at Regents Law School. Duane was a criminal defense attorney when in private practice, and he explains 8 reasons why attorneys always tell their clients not to talk to the police. Burch tells the audience that Duane is right.

If you think you'd never need to plead the Fifth, or that it's only for criminals, this video is for you. As you watch, and as the reasons why you should not talk to the police multiply, even if and in fact especially if you are in fact innocent, think about why the authors of the Bill of Rights came up with such a concept. Perhaps it will help you appreciate what the professor calls the genius of the founders of the US legal system, who actually gave thought to protecting the innocent from government power.

Some governments set up laws to protect the privileged few from the common man; the founding fathers did exactly the opposite -- the Bill of Rights was particularly designed to protect the little guy from the government, which by definition has more power. They themselves described their purpose in coming to the new world, speaking to the British in 1775 in the Declaration of the Causes and Necessity of taking up Arms, a document I first brought to your attention when Darl sent his anti-GPL letter to the US Congress, and here's what they said they came here for:

Our forefathers, inhabitants of the island of Great-Britain, left their native land, to seek on these shores a residence for civil and religious freedom. At the expense of their blood, at the hazard of their fortunes, without the least charge to the country from which they removed, by unceasing labor, and an unconquerable spirit, they effected settlements in the distant and inhospitable wilds of America . . .
They came here for civic and religious freedom. So when they wrote the Constitution and the Amendments, that's what they wanted to do. That is the point of the US Constitution and its Bill of Rights, and the video will help you to understand just how much this one amendment, the Fifth, protects you if you are a normal person, *particularly* if you are innocent but also if you are guilty. Not that you ever would be.

Of course, classes can't be only fun. You have to try to pay attention to the studious parts too. Remember how SCO never would pay attention in GPL Summer School? It surely cost them. So, with that warning, here's the Fifth Amendment:

Amendment 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 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.

'Lectric Law explains that it can be used in civil actions also, and you saw it happen in the HP spying matter. You have to assert it question by question. You can't just assert it once for all time:
The Fifth Amendment 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.' Kastigar v. U.S., 406 U.S. 441, 44-45 ('72). A reasonable belief that information concerning income or assets might be used to establish criminal failure to file a tax return can support a claim of Fifth Amendment privilege. See U.S. v. Rendahl, 746 F.2d 553, 55-56 (9th Cir.'84).

The only way the Fifth Amendment can be asserted as to testimony is on a question-by-question basis. Rendahl, 746 F.2d at 555, citing with approval U.S. v. Bell, 448 F.2d 40, 42 (9th Cir.'71) (Fifth Amendment challenge premature on appeal from enforcement order; appellant must present himself for questioning after enforcement and as to each question elect to raise or not to raise the defense).

The appropriate device for compelling answers to incriminating questions is a government grant of use immunity. See Sharp, 920 F.2d at 1172.

That need to assert the privilege question by question leads to the funny news clips where people tend to look increasingly guilty for repeating over and over that he or she relies upon the protection of the Fifth Amendment. The video explains that totally, and after you watch it, you'll never assume guilt again, just because someone asserts the Fifth Amendment.

Graphic from the National Archives' online collection, where those of you who wish to learn more can find it.

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