I’m hearing rumors about another of our constitutional guarantees: The Fifth Amendment…

I’m shaking the tree folks because it appears next week at a local courthouse near you, a new band called Freaky Freddie and the Heebe Jeebies will be debuting their first song the Fifth Amendment Blues.  As soon as I get more info I’ll pass it along.

sop

3 thoughts on “I’m hearing rumors about another of our constitutional guarantees: The Fifth Amendment…”

  1. In anticipation I present for your edification a Wikipedia excerpt explaining the 5th:

    Excerpted from Wikipedia
    The Fifth Amendment (Amendment V) to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215. For instance, grand juries and the phrase "due process" both trace their origin to the Magna Carta.
    “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.”
    SELF INCRIMINATION
    The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties or forfeiture.
    Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions. These protections were brought to America by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights.
    Protection against self-incrimination is implicit in the Miranda rights statement, which protects the "right to remain silent." This amendment is also similar to Section 13 of the Canadian Charter of Rights and Freedoms. In other Commonwealth of Nations countries like Australia and New Zealand, the right to silence of the accused both during questioning and at trial is regarded as an important right inherited from common law, and is protected in the New Zealand Bill of Rights Act and in Australia through various federal and state acts and codes governing the criminal justice system.
    GRAND JURY
    Grand juries, which return indictments in many criminal cases, are composed of a jury of peers and operate in closed deliberation proceedings; they are given specific instructions regarding the law by the judge. Many constitutional restrictions do not apply during grand jury proceedings. For example, the exclusionary rule does not apply to evidence presented to a grand jury; the exclusionary rule states that evidence obtained in violation of the Fourth, Fifth or Sixth amendments cannot be introduced in court. Also, defendants do not have the right to have their attorneys present in grand jury rooms during hearings; they would normally have such a right during questioning by the police while in custody. The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment; in other words, it has not been ruled applicable to the states. States are free to abolish grand juries, and many (though not all) have replaced them with preliminary hearings.
    Whether a crime is "infamous" is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed; however, crimes punishable by death must be tried upon indictments. In United States v. Moreland, 258 U.S. 433 (1922), the Supreme Court held that incarceration in a prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime. Currently, federal law permits the trial of misdemeanors without indictments. Additionally, in trials of non-capital felonies, the prosecution may proceed without indictments if the defendants waive their Fifth Amendment right.

    DOUBLE JEOPARDY
    The fifth amendment refers to being put in "jeopardy of life or limb." The clause, however, has been interpreted as providing protection regarding "every indictment or information charging a party with a known and defined crime or misdemeanor." The clause, it has been held, does not prevent separate trials by different governments, and the state and federal governments are considered "separate sovereigns". Therefore, one may be prosecuted for a crime in a state court, and prosecuted for the same crime in another state, a foreign country, or (most commonly) in a federal court.
    The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed by the courts. Sentence increases may not, however, be made once the defendant has already begun serving his term of imprisonment. If a defendant's conviction is overturned on procedural grounds, the retrial may result in a harsher penalty than the original trial.
    LEGAL PROCEEDING
    The Fifth Amendment privilege against compulsory self-incrimination applies when an individual is called to testify in a legal proceeding. The Supreme Court ruled that the right against self-incrimination applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court,, and whether the proceeding itself is criminal or civil.
    The right was asserted at grand jury or congressional hearings in the 1950s, when witnesses testifying before the House Committee on Un-American Activities or the Senate Internal Security Subcommittee claimed the right in response to questions concerning their alleged membership in the Communist Party. Under the Red Scare hysteria at the time of McCarthyism, witnesses who refused to answer the questions were accused as "fifth amendment communists". They lost jobs or positions in unions and other political organizations, and suffered other repercussions after "taking the fifth."
    The amendment has also been used by defendants and witnesses in criminal cases involving the Mafia.
    The right against self-incrimination does not apply when an individual testifies before a self-regulatory organization (SRO). SROs, such as the National Association of Securities Dealers (NASD), are generally not considered as state actors subject to the restraints of the fifth amendment. Department of Enforcement, United States v. Solomon, 509 F. 2d 863 (2d Cir. 1975); D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., 132 F. Supp. 2d 248, 251-53 (S.D.N.Y. 2001), aff'd, 279 F.3d 155, 162 (2d Cir. 2002), cert. denied, 537 U.S. 1028 (2002); Marchiano v. NASD, 134 F. Supp. 2d 90, 95 (D.D.C. 2001). SROs also lack subpoena powers, so they rely heavily on requiring testimony from individuals while wielding the threat of a bar from the industry (permanent, if decided by the NASD) in the case of noncompliance.
    REFUSAL TO TESTIFY IN A CIVIL CASE
    While defendants are entitled to assert that right, there are consequences to the assertion of the Fifth Amendment in a civil action.
    The Supreme Court has held that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). “[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, ‘Silence is often evidence of the most persuasive character.’” Id. at 319 (quoting United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-154 (1923)). “‘Failure to contest an assertion…is considered evidence of acquiescence…if it would have been natural under the circumstances to object to the assertion in question.’” Id. (quoting United States v. Hale, 422 U.S. 171, 176 (1975)).
    In Baxter, the state was entitled to an adverse inference against Palmigiano because of the evidence against him and his assertion of the Fifth Amendment privilege.
    GRANTS OF IMMUNITY
    If the government gives an individual immunity, then that individual may be compelled to testify. Immunity may be "transactional immunity" or "use immunity"; in the former, the witness is immune from prosecution for offenses related to the testimony; in the latter, the witness may be prosecuted, but his testimony may not be used against him. In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that the government need only grant use immunity to compel testimony. The use immunity, however, must extend not only to the testimony made by the witness, but also to all evidence derived therefrom. This scenario most commonly arises in cases related to organized crime.
    RECORD KEEPING
    CORPORATIONS may also be compelled to maintain and turn over records; the Supreme Court has held that the Fifth Amendment protections against self-incrimination extend only to "natural persons." The Court has also held that a corporation's custodian of records can be forced to produce corporate documents even if the act of production would incriminate him personally. The only limitation on this rule is that the jury cannot be told that the custodian personally produced those documents in any subsequent prosecution of him or her, but the jury is still allowed to draw adverse inferences from the content of the documents combined with the position of the custodian in the corporation.

  2. Assert the 5th in a civil proceeding. Not good, Freddie, not good. If I were the attorney on this case, I would go to the whip and get a trial date. Juries hate when a witness asserts the 5th in front of them!

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