To most people, the Fifth Amendment to the Constitution is the “you have the right to remain silent” amendment. This provision, which we examine below, may be the most important provision in this amendment. But the other four are right on its heels. Furthermore, the rights guarantees go well beyond the ability to keep one’s mouth closed during police interrogation or while on the witness stand.
The Fifth Amendment is also the first amendment in the Bill of Rights to specifically address the criminal justice system. So, to a Marietta criminal defense lawyer, the Fifth Amendment is basically a framework for criminal courts and how they must function. If authorities violate the Fifth Amendment, the case against the defendant cannot move forward, whether or not the defendant “did it.”
Grand Jury
Before federal prosecutors charge a person with an “infamous crime,” which usually means a felony, a grand jury must indict the defendant.
Many people dismiss this important provision. It only applies to federal prosecutions, and in most cases, a grand jury indictment is a mere formality. The grand jury indictment rate is over 99.9 percent.
But let’s not be so hasty. Georgia’s state procedure mirrors federal procedure. Except in rare cases grand juries must indict felony defendants. That requirement sharply limits prosecutorial powers. The state doesn’t need much evidence to obtain a grand jury indictment, but it must present something substantive. In these charged times, this requirement often puts the brakes on politically or personally motivated prosecutions.
Furthermore, grand jury indictment establishes the principle that, in this country, courts operate according to certain rules. Everyone must follow these rules.
All that being said, because the indictment rate is so high, defendants should never voluntarily appear before a grand jury so they can “explain things.” Marietta criminal defense lawyers often deal with this attitude when people are investigated for financial crimes. No matter what you say, it won’t be enough to stop the rock from rolling downhill.
Double Jeopardy
No, this isn’t the part of the game when dollar values double and scores can really change. Double jeopardy is being charged twice for the same, or substantially similar, offense. This issue is commonplace.
Possession and enhanced possession (e.g. unlawfully carrying a weapon and unlawfully carrying a weapon in a prohibited place) may be the best example. Prosecutors must pick one or the other. This Fifth Amendment provision also prohibits fallback prosecutions. If prosecutors lose a DUI case, they cannot then charge the defendant with reckless driving.
Self-Incrimination
This right normally applies during formal criminal investigations, criminal prosecutions, and any other time the defendant is under custodial interrogation.
- “Custody” means the defendant doesn’t reasonably feel free to leave. Most people don’t reasonably feel free to leave the moment a police officer approaches them for any reason, or when they receive a subpoena to testify in court.
- “Interrogation” basically means any attempt to obtain information. Investigators often ask indirect questions, like “Where are you heading?”, to lull suspects into a fals sense of complacency.
Usually, the declarant’s (person making the statement) life, liberty, or property must be at stake. The Fifth Amendment doesn’t allow people to protect each other, regardless of their relationship. However, if possible criminal charges are on the table, a Marietta criminal defense lawyer can often expand the right to remain silent.
Furthermore, the right against self-incrimination also applies to non-verbal communication, such as appearing in a lineup or posing for a picture.
When suspects assert their Fifth Amendment rights during criminal investigations, officers almost inevitably file charges. However, at this point in an investigation, charges were probably coming anyway, regardless of what the suspect does or doesn’t do.
The Fifth Amendment also protects privacy rights against government intrusion. The right to privacy, which is implied in the constitution, has been used over the years to “keep the government out of the bedroom.”
We should add that, under current law, people must affirmatively assert their Fifth Amendment rights. If they simply remain silent during questioning, that silence is a waiver of that constitutional right. As a result, when the suspect breaks, whatever s/he says is admissible in court.
This provision of the Fifth Amendment only applies in criminal cases. Many criminal matters involve civil proceedings. DUI drivers’ license suspension is a good example. During the administrative license revocation process, drivers may be compelled to be witnesses against themselves. This occasionally happens if the arresting officer is unable to provide testimony and a Marietta criminal defense lawyer isn’t on hand to get the matter reset.
Due Process
In contrast, the requirement of notice and hearing applies ot any government attempt to limit “life, liberty, or property.” This fundamental right is the basis of our system of government.
“Notice” usually means personal service. Someone must place a written notice in the hand of the person the subject of the hearing. A few exceptions apply in a few cases. The notice must explain the nature of the proceedings in such a way that the respondent knows what to expect, knows what’s at stake, and knows how to prepare a defense.
A “hearing” must be prompt, thorough, transparent, and fair. No part of any hearing, a criminal trial, a civil trial, a workplace disciplinary hearing, or anything else, may be conducted behind closed doors. The outcome of that hearing must be based solely upon the evidence presented at that hearing.
Eminent Domain
Many times, property condemnation is an alternative to asset forfeiture. Drug houses are a good example. Condemning a property as a dangerous drug house is a politically acceptable alternative to seizing someone’s house.
Note that the only constitutional limitation on eminent domain/condemnation is the payment of just compensation. Once the city, or another governmental entity, decides to take property for any reason, the only issue is the amount of compensation. Owners cannot stop eminent domain proceedings.
Democracy works best if everyone knows their rights. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
