Issue 16.15
The Fifth Amendment is the cornerstone of protections for a person who is suspected or accused of a crime. Much of TV is concerned with crime drama, heralding the defenders of the public safety and their efforts to find and punish those who break the law. Sometimes those on these shows bend the law to get the “bad guy”. It is important to honor and respect those who protect and serve as they put their lives on the line to keep us safe and bring evil people to justice while protecting our rights and our way of life. It is equally important that they in turn respect the rule of law and the Constitution they are sworn to uphold. Without the protections carefully engineered in the Bill of Rights, we could quickly devolve into a police state where the rights of the individual, especially the innocent but suspected, are sacrificed on the altar of expedience and public safety. The result of that mindset is conviction and intimidation of law-abiding citizens by those who see themselves as above the law because the ends justify the means. Thankfully, those that fit this description in law enforcement and the legal system are not common.
The balance between finding and stopping or punishing those who break the law on the one hand, and not punishing or threatening those who have not committed crimes on the other is a careful balance – one the Fifth Amendment seeks to protect. Here we find the basis for the Miranda warning that is routinely given to anyone arrested for a crime. The specific wording of the Amendment is “No person… shall be compelled in any criminal case to be a witness against himself…” In other words, law enforcement people cannot use intimidation, threat or violence to coerce a person into admitting to a crime. The person cannot be compelled to give evidence against themselves. In legal proceedings in which a person might be otherwise compelled to give evidence against someone else, they can opt to refuse if, in their opinion, the evidence they would give would also implicate themselves in criminal activity. If any of these safeguards are violated, the person in question can have the decision of the court or jury overturned because the evidence thus obtained is tainted and perhaps false, because it was obtained by compulsion or threat.
Because of these concerns and the results of a trial (Miranda vs. Arizona) where a suspect was treated incorrectly, law enforcement people now have a script that they must follow when arresting someone. They also must be sure the person heard and understood that script before questioning them. The words used in most states are, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” The suspect then must clearly state that they understand these rights before any questioning can occur – thus indicating they are of sound mind and able to understand the questioner.
Anyone arrested for a crime and being questioned must be given this understanding. If not initially questioned but simply arrested, this is not required, but it is required before any questioning, even if it happens later on in the process. They must have the opportunity to have an attorney present and to consult with an attorney before and during questioning if they so choose.
It is true that these restrictions make the job harder for those who work to convict criminals, but it is deemed worth it. The chance of letting an occasional criminal go free because of the difficulty of proving their guilt has to be measured against the possibility of convicting someone who is innocent when these safeguards are ignored. Those who are criminals are likely to continue to break the law and eventually be caught and punished. You can’t give back to the innocent the time, expense and loss of privacy and reputation that occurs when they are wrongfully convicted.
The Fifth Amendment addresses a number of additional protections which we will continue to look at next time.
Lynn West is a thinker, a teacher and a patriot. You can reach him through email at forgingthefuture2021@gmail.com or through this newspaper. Liberty is a state of being which must be continually created. These articles can help all of us discover the ways we can contribute to that outcome.