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Fifth Amendment First Principles: The Self-Incrimination Clause Essay

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Updated: Jun 18th, 2021

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). . Boston University Law Review, 97, 893-933. Web.

Kim, J. (2017). . 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.

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IvyPanda. (2021) 'Fifth Amendment First Principles: The Self-Incrimination Clause'. 18 June.

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