That Which Defines Us...Part IV: Amendments V & VI

	Before hunkering down with the longest amendment in the Bill of Rights, it may help to have some familiarity with some terms expressly contextual to the Fifth Amendment, and indeed law itself.
grand jury	A large jury, usually of 23 citizens, that determines if there is enough evidence to charge a defendant with a crime.
petit jury	A trial jury, usually of 6 to 12 citizens, that decides the facts in a civil or criminal case.
indictment	Formal criminal charge issued by a grand jury when a prosecutor has enough evidence for a trial.
presentment	Formal criminal charge issued by a grand jury independent of a prosecutor.
double jeopardy	Trying a defendant more than once for the same offense.
self-incrimination	Compelling a defendant to testify against himself.
inquisition	Questioning accused persons under oath to determine their guilt. [Nobody expects the Spanish Inquisition!]

Amendment V: Due Process of Law

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.

The Fifth Amendment guarantees, appropriately enough, five distinct yet varied rights: the right to a grand jury, the right to not be tried twice for the same offense, right to due process of law, right to just compensation for private property taken for public use, and perhaps the most notorious right in the Constitution--the right against self-incrimination in criminal cases. A seemingly scattered amalgamation, yet they all limit the power of government to take action against the individual. Grand juries originated in England during the twelfth century as a means to limit the government's power to charge an individual with a crime unless justified by evidence. For early America, they took on the added importance of insulating us from the crown's power. It's well worth noting that the Supreme Court has never held the grand jury provision to apply at the state level, only the federal level. Instead of grand juries, most states allow the prosecutor to file an information [no, I didn't misspell it], a sworn statement affirming that he or she has enough evidence to take the case to trial. Hang on, this deserves a touch of analysis, or at least...a rant!: What the *#!@ ?!?!? An "information"? While I have a tremendous amount of respect for the law, and I'm as far from being a lawyer as a rhino is from being an ant, this little gem of nomenclature absolutely stymies me. An "information"? With all its inherent complexities and murkiness at its depths, with all the usage of latin within the legal lexicon, why in the name of all that's perspicacious (look it up) would they settle on "information" for this? Here's a few quick examples of what already lives in many a dusty volume of litigation precedent: habeus corpus: A writ that is usually used to bring a prisoner before the court to determine the legality of his imprisonment. It may also be used to bring a person in custody before the court to give testimony, or to be prosecuted. pro se: A Latin term meaning "on one's own behalf"; in courts, it refers to persons who present their own cases without lawyers. nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned subpoena duces tecum: A command to a witness to produce documents. I could go on ad nauseum of course, but you get the gist. A prosecutor can file a sworn statement called an information...okay, and this weekend I'm going to fill my tank with a carbon. At least Dr. Suess would have made reading the law a lot more fun--but that's a rant for another time. As if an information wasn't enough fun, a judge must hold a preliminary hearing to evaluate evidence before an information can be filed. Grand juries meet in secret with only the prosecutor present to exhibit evindence. Advocates of the grand jury system assert the secrecy component is necessary to protect the reputations of people who are not actually indicted. Critics charge that grand juries almost always return indictments. One prominent New York judge reportedly said that nowadays a prosecutor could get a grand jury to "indict a ham sandwich." However, a grand jury can exercise a great amount of discretion, even refusing to bring charges against the accused based on humanitarian ground, such as when a distraught father removes life support for his brain dead son. Greek and Roman law are the progenitors of the Double Jeopardy Clause. It specifically addresses endangering "life and limb," a direct reference to an early American practice of punishment for crime by lopping off ears or damaging other limbs. Notably, the Surpeme Court has broadened this language to include prison sentences. There are a number of instances where double jeopardy does not apply, but I won't list them here, Taking the Fifth... Popularized in the 1950's during the McCarthy hearings, this is the infamous right against self-incrimination. McCarthy referred to people who refused to answer his questions as "Fifth Amendment communists." "I am deeply troubled about asserting these rights, because it may be perceived by some that I have something to hide." --Kenneth Lay **Lay was found guilty on six counts of conspiracy and fraud. In a separate bench trial, the judge ruled Lay was guilty of four counts of fraud and false statements. Lay faced anywhere from 20-30 years in prison, plus a possible additional term in prison for his conviction in the bank fraud case. However, in July 2006 Lay died of a massive heart attack. In America, taking the fifth is viewed as tantamount to admitting guilt, but this right actually stems from England, where there was abuse in the system of inquisition. A royal court would meet in secrecy, known as a Star Chamber, and require religious dissenters to answer questions about their faith. If they told the truth, they jeopardized their lives; if they lied, they risked their souls. A Puritan printer named John Lilburne refused to take the Star Chamber's oath, believing they lacked evidence against him yet were attempting entrapment through wily questioning. As a result of Lilburne's protest, Parliament later abolished the Star Chamber. Our criminal law is predicated on a system of accusation, in which the government must provide evidence proving a defendant committed a crime; hence, the presumption of innocence before proof of guilt. Coerced confessions are a direct violation of the right against self-incrimination, not to mention they typically provide unreliable testimony. The Supreme Court has ruled that admission of confession is valid only if it was truly voluntary. As a result of Miranda v. Arizona (1966), the Court has held that a defendant must know his rights before being able to waive them voluntarily. However, the Court has also placed limits on the effects of Miranda. In an Illinois case, the Court ruled Miranda warnings were not required when a jailed suspect confessed to a police officer posing as an inmate; the Miranda decision protected suspects from coercion, not deception, said the Court. Apples and Oranges The Fifth Amendment isn't all-inclusive, meaning it doesn't provide any sort of 'umbrella' protection for defendants. The Fifth Amendment applies only to testimonial evidence, not physical evidence. A defendant can't avoid producing physical evidence such as blood or handwriting samples, or fingerprints. A defendant can even be directed to stand in a lineup and repeat phrases at a victim's request. However, a polygraph test is considered testimonial, so the government cannot force the accused to submit to one. Recall that the Fifth Amendment applies at the federal level, meaning that it only restricts or limits the national government. The Fourteenth Amendment restricts the states. Due Process has its roots in the Magna Carta of 1215 which narrowed King John's power over his nobles. Conceptually, it holds that government should not act arbitrarily or capriciously, rather play by the established rules. Due Process has two categories: Substantive and Procedural. Substantive Due Process declares the content of a law must itself be fair. In questions of constitutionality the Supreme Court will examine the content of a law to determine whether it violates fundamental rights not specifically mentioned in the Constitution, that is, rights which may be implied or inferred. Procedural Due Process designates that the rules by which a law is implemented must be fair. Procedural Due Process mandates that the government prove its case "beyond a reasonable doubt." In civil cases, the Supreme Court has ruled that the government cannot deprive a citizen of certain liberty or property interests without due process of law. For example, in a 1970 case the Court held that the government cannot take away welfare benefits without notifying those affected and giving them the opportunity to be heard. In a similar instance five years later, they ruled that public school students were entitled to a certain level of due process before they were suspended. Think about all the infrastructure throughout the country today: bridges, interstates, railroads, and dams; all examples of projects accomplished through eminent domain--the power of the government to take private land for public use. The Just Compensation Clause limits this power. When taking is justified the government is only required to compensate the owner fair market value, not moving expenses or replacement costs in another neighborhood.

Did you know... Miranda Rights are part of popular culture now; anyone who has watched television in the last twenty years can recite them. What's not as popularly known is the case from which they took root. Arizona has contributed more to American political history than Barry Goldwater, Ev Meacham, John McCain, and Bruce Babbit. To wit, the story of a one Ernesto Miranda. Ernie was, by any definition, a reprobate, and had a brilliant future as a career criminal. Miranda was an ex-con, having served time both as a juvenile and as an adult, having been charged with sexual offenses. On March 13, 1963, funster Ernie had barely fallen asleep after working all night long at his produce job when Phoenix police officers came to his home while investigating a kidnapping and rape. They brought Miranda back to the station and questioned him for two hours, during which he confessed. Said Miranda years later, "They get you in a little room and they start badgering you one way or the other, 'you better tell us, or we're going to throw the book at you.'...And I haven't had any sleep since the day before." Even after his confession was thrown out by the Supreme Court, Miranda was convicted in a second kidnap and rape trial in 1967. After parole, he made extra money autographing the Miranda warning cards used by the police. In 1976 Ernesto was killed in a barroom brawl when he lost a knife fight. Serendipity stepped in... Police used a warning card from Miranda's pocket to advise one of the suspected killers of his rights.

Amendment VI: Right to a Fair Trial	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 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.
	This amendment echoes Article III's guarantee of a trial by jury in criminal cases, but also stipulates two other equally important rights: the right to subpoena favorable witnesses and the right to counsel. It strives to place the fulcrum of judicial power in-between the State, which pays for both law enforcement officers and the prosecutors to prove guilt, and the obligation of the individual to prove innocence. The Supreme Court has rejected a specific time frame for when a defendant must be tried to qualify as a 'speedy trial.' but they have established general guidelines which apply to both federal and state cases. Congress enacted the Speedy Trial Act of 1974 which stipulates that federal prosecutors must start their trials no more than 100 days after an arrest. If a prosecutor does not bring a case to court in an expeditious manner then they must drop the charges against the defendant. The proviso is also set forth for a "public trial." The framers could not have possibly imagined the pervasiveness of the media less than 200 years later. Some high-profile cases wind up pitting the First Amendment zealots against Sixth Amendment hardliners. The Supreme Court knocked both their collective heads together and said "listen you knuckleheads, the Sixth Amendment is for the benefit of the defendant, not the public or the media." The Court has also held that judges in such cases are beholden to take steps to ensure an impartial jury, such as changing the venue or sequestering the jury. With the help of Mr. Peabody and his boy Sherman we can use the Wayback Machine (again) to get from 1974 to 1765. King George III and his posse of heavies, Parliament, have just recently enacted the Stamp Act of 1765. The Stamp Act required the use of stamped paper for legal documents, diplomas, almanacs, broadsides, permits, commercial contracts, pamphlets, newspapers, and playing cards--pretty much anything paper-based. The presence of the stamp on these items was to be proof that the tax had been paid. The revenues accumulated from this tax were to be earmarked solely for the support of British troops protecting the American colonies; if you recall, the colonies were recently forced to quarter British troops as part of the Quartering Act...we didn't want a standing army then, either. Just a year prior we'd been sacked with the Sugar Act, a tax on trade. Things around the colonies were pretty tense. Colonists even threatened tax collectors with tarring and feathering (7)Stamps were generally ignored, and were often unavailable. Many times the Colonists would boycott the stamps and simply not buy them. Protest and discussion over these acts gave way to open violence in a number of instances. In Boston, an effigy of the stamp agent, Andrew Oliver, was hanged and then burned. His home was broken into, and his office, along with the stamps, was burned. (The elm tree used to hang Oliver's effigy later became known as the "Liberty Tree".) Organizations of protest sprang up throughout the colonies, later becoming known as the Sons of Liberty. Oliver resigned as stamp agent, and no one could be found to take the job. So you're thinking the whole Stamp Act thing came out of left field--not really. Parliament allowed juryless trials for violators of the Stamp Act. This outraged Americans. Moreover, Americans could be transported back to England for trial. Americans depended heavily on juries for justice independent of the crown, so to be denied this by the crown only served to put yet another iron in the fire...two actually. Both of these grievances were also listed in the Declaration of Independence: For imposing Taxes on us without our Consent... For depriving us in many cases, of the benefit of Trial by Jury... Standards are different between federal and state jury trials, according to the Supreme Court. The federal government must have twelve person juries that issue unanimous verdicts in crminal trials. States can have smaller juries that render non-unanimous verdicts--except in death penalty cases. For noncapital criminal trials, states must have at least six member juries and must issue a unanimous verdict. A jury trial is mandated only if the charge carries with it a maximum sentence of at least six months. "What if the jury doesn't return a unanimous verdict," you ask? Then by definition it's considered a mistrial due to a hung jury. In a hung jury, all it takes is one dissenting vote, which is why the "reasonable doubt" criteria is critical. Each member of that jury must be convinced--beyond a reasonable doubt--the charges have or have not been proven. Judges do their best to avoid mistrials, typically sending juries back into deliberations with an assurance (sometimes known as a "dynamite charge") that they will be able to reach a decision if they try harder. If a mistrial is declared, the case is tried again unless the parties settle the case (in a civil case) or the prosecution dismisses the charges or offers a plea bargain (in a criminal case).
voir dire: Questioning potential jurors to reveal their biases and knowledge of the case.	The Sixth Amendment also requires that juries be impartial. Prosecution and defense attorneys question potential jurors in a process known as voir dire. For example, if the case being tried involves a driver with a DWI, you wouldn't want to have people sitting on the jury who had family members who are alcoholics or who may have been involved in any type of alcohol-related incident. They would likely taint the eventual outcome of the trial based on personal experience. Either attorney may challenge a prospective juror for cause if evidence indicates the juror is biased. They can also exclude a number of jurors without giving any reason or rationalization, which is called peremptory challenge. You may think this opens the door for attorneys to discriminate in order to win a favorable verdict--for instance, exclude all blacks from a jury trial where a white man has been accused of civil rights violations. For good reason, the Court has ruled that such discrimination violates the Equal Protection Clause of the Fourteenth Amendment. Another requirement for meeting the impartiality test: a jury must be selected from a "representative cross-section of the community." Only the jury pool, not the final jury, must meet the "representation" standard to be Sixth Amendment compliant. The jury must also be local: "by an impartial jury of the State and district wherein the crime shall have been committed". This provision came about as a result of the British practice of sending parties across the sea to face unsympathetic juries. The framers wanted to prevent the same thing from happening here. The Sixth Amendment gives defendants the right to know the nature of the charge or charges against them; a necessary entitlement in order to prepare a proper defense. This notification is typically done at the time of arraignment. In the case of a felony, a grand jury must return an indictment before the defendant's arraignment. For a misdemeanor an arraignment is all that's required to meet the Sixth Amendment requirements. arraignment: a court hearing where the defendant pleads guilt or innocence. felony: a serious crime carrying a sentence of more than a year. misdemeanor: a minor offense with a sentence of a brief jail term or a small fine. The Confrontation Clause states that a defendant has a right "to be confronted with the witnesses against him"; this prevents a witness from testifying in secret against the accused, thus enabling said accused to challenge a witness's truthfulness in open court via cross-examination. This clause largely prohibits hearsay, the testimony from a witness based on what a third party said, as opposed to having directly observed it themselves. For example, Lisbeth says she heard from Earl that Buford broke the back window of Tate's truck and stole his gunrack. "Nevermind that he had to reach through the Confederate flag to get to it, I just know he done it," she stated. See, Lisbeth didn't actually see Buford do anything of the sort, which makes her statement (under oath, mind you) hearsay. Seems in this case neither Earl nor Buford are available to testify as Tate covered all his bases and beat both of them into convalescence--so they're not available for cross-examination. There are exceptions made to this rule, however. In this situation, Lisbeth's testimony may be allowed if Earl and Buford don't pull through, in which case Tate's got lotsa 'splainin' t'do. Besides hearsay, the Supreme Court will allow for other exceptions to defendant (or perhaps more appropriately, the defense) cross-examination. A witness can refuse to answer certain questions based on privilege, such as confidentiality of the confessional--when a priest hears confessions. The Court has emphatically ruled that a witness merely needs to be available for cross-examination by the defense, but they are not compelled to answer all questions. As for face-to-face confrontation within the courtroom, consider this: studies show a witness is more likely to lie about a defendant behind his or her back as opposed to being in the same room. Many states have laws, though, which protect certain types of witnesses, such as alleged victims in child abuse cases. In these instances, the court will allow the witness to testify without directly seeing the accused. During a case in Maryland, a child abuse victim was allowed to testify via closed-circuit television.
subpeona: a court order forcing a witness to testify or produce relevant evidence.	"...compulsory process..."; using a subpoena a defendant can gather the evidence necessary to present a valid defense. Think back to Article II -- remember that the Supreme Court has upheld the principle that the president has some inherent powers that do not need to be specifically mentioned in the Constitution, known as Executive Privilege Kinda ring a bell? While they ruled that such privilege or power is, in fact, constitutionally based, executive privilege does not outweigh the demand for evidence in a criminal trial if national security issues were not involved. This ruling arose out of the Watergate scandal, in 1974. In United States v. Nixon, the Supreme Court ruled unanimously the even the president must comply with a subpoena in a criminal case, unless military or diplomatic secrets are involved. President Richard Nixon had been subpoenaed and required to produce tape recordings of conversations in the White House. He refused on the grounds that such communications were privileged, and therfore protected under Article II. The Court didn't buy it, citing that the Sixth Amendment right of compulsory process overcame his general claim of privilege, which was not based upon any national security issues. Nixon was forced into turning over the tapes, exposing his very real participation in the Watergate coverup scandal. As a result, Congress levied three separate Articles of Impeachment against him: 1) Obstruction of Justice, 2) Abuse of Power, and 3) Contempt of Congress. The House Judiciary Committee approved the Articles on July 30, 1974 -- on August 9th, President Nixon resigned. The Sixth Amendment originally only protected the right to have a lawyer present, but now includes the right to have a court-appointed attorney provided if the accused cannot afford one. Although the Supreme Court has ruled that an indigent defendant is entitled to court-appointed counsel, there is nothing specifying the quality or experience of said counsel in criminal defense. The Court has simply held that a defendant must receive "effective assistance of counsel," which doesn't necessarily imply an error free defense...sorta like getting a cool electronic gadget for Christmas only to find out "batteries not included." Lastly, the Court has also held that a defendant's rights to counsel also applies during police questioning, not just during trial.

Don't give up now! Take a breather, bookmark the page, whatever--just be sure to keep moving forward. You got this far. Gen. George S. Patton would be proud of you--you're going through this "like s*** though a goose." Onward...the Seventh Amendment, and more!

⁽⁷⁾ _{excerpted from a Wikipedia entry on the Stamp Act of 1765}.