Daily Archives: August 9, 2015

A Guide to the Fifth Amendment

The Fifth Amendment, or Amendment V of the United States Constitution is the section of the Bill of Rights that protects you from being held for committing a crime unless you have been indicted correctly by the police. The Fifth Amendment is also where the guarantee of due process comes from, meaning that the state and the country have to respect your legal rights. The Fifth Amendment was introduced as a part of the Bill of Rights into the United States Constitution on September 5, 1789 and was voted for by of the states on December 15, 1791.

History of the Fifth Amendment

Once the United States won their independence from the British Parliament and monarchy that had acted like tyrants, the Framers of the United States Constitution did not trust large, centralized governments. Because of this, the Framers wrote the Bill of Rights, which were the first 10 amendments, to help protect individual freedoms from being hurt by the governmental. They included the Fifth Amendment, which gave five specific freedoms to American citizens.

Understanding the Fifth Amendment Line by Line

If you are confused by what each line means, here are some explanations to make the Fifth Amendment easier to understand:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury: No one can be put on trial for a serious crime, unless a grand jury decide first that there is enough proof or evidence so that the trial is needed. If there is enough evidence, an indictment is then issued, which means that the person who is charged with the crime will can put on trial for the crime.

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: People in the military can go to trial without a grand jury first deciding that it is necessary. This is the case if the military person commits a crime during a national emergency or a war.

Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb: If someone is put on trial for a certain crime and the trial ends, the person cannot be tried once more for the same crime. If a person is convicted of a crime and then serves his or her time in jail, or if the person is acquitted, he or she cannot be put on trial a second time.

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Fifth Amendment - Kids | Laws.com

The Fifth Amendment states that people have the right to have a trial if they are accused of a committing crime. The creators of the Bill Of Rights probably thought that people falsely accused should have their rights like anyone else. It also says that if their private property is taken for public use, the owners would get something in return.

The exact words in this amendment say, 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 offence 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.

This amendment was made in the 18th century, some time in 1791, to protect the privileges of the citizens over the cruel government. It was important then and still is now because it gives people the right to be tried by a jury for committed crimes, the choice to be tried twice for doing the same felony, and the opportunity to gain something from their loss of their private property due to being used for public use. For example: if part of your yard was to be demolished in order to build a new road on your street, you would have the right to receive something/compensation in return from the government because they took your private property for public use.

There is a term called pleading the fifth. When you plead the fifth, you are using your Fifth Amendment right to not incriminate yourself with testimony. The Fifth Amendment says you have the right to not testify and incriminate yourself. It means you don't want to say anything that might make you look bad or sound guilty....

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The Fifth Amendment - Term Papers - Nana2327

Amendment Text | Annotations

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Presidential Succession

The Twenty-fifth Amendment was an effort to resolve some of the continuing issues revolving about the office of the President; that is, what happens upon the death, removal, or resignation of the President and what is the course to follow if for some reason the President becomes disabled to such a degree that he cannot fulfill his responsibilities? The practice had been well established that the Vice President became President upon the death of the President, as had happened eight times in our history. Presumably, the Vice President would become President upon the removal of the President from office. Whether the Vice President would become acting President when the President became unable to carry on and whether the President could resume his office upon his recovering his ability were two questions that had divided scholars and experts. Also, seven Vice Presidents had died in office and one had resigned, so that for some twenty per cent of United States history there had been no Vice President to step up. But the seemingly most insoluble problem was that of presidential inability--Garfield lying in a coma for eighty days before succumbing to the effects of an assassin's bullet, Wilson an invalid for the last eighteen months of his term, the result of a stroke--with its unanswered questions: who was to determine the existence of an inability, how was the matter to be handled if the President sought to continue, in what manner should the Vice President act, would he be acting President or President, what was to happen if the President recovered. Congress finally proposed this Amendment to the States in the aftermath of President Kennedy's assassination, with the Vice Presidency vacant and a President who had previously had a heart attack.

This Amendment saw multiple use during the 1970s and resulted for the first time in our history in the accession to the Presidency and Vice-Presidency of two men who had not faced the voters in a national election. First, Vice President Spiro Agnew resigned on October 10, 1973, and President Nixon nominated Gerald R. Ford of Michigan to succeed him, following the procedures of Sec. 2 of the Amendment for the first time. Hearings were held upon the nomination by the Senate Rules Committee and the House Judiciary Committee, both Houses thereafter confirmed the nomination, and the new Vice President took the oath of office December 6, 1973. Second, President Richard M. Nixon resigned his office August 9, 1974, and Vice President Ford immediately succeeded to the office and took the presidential oath of office at noon of the same day. Third, again following Sec. 2 of the Amendment, President Ford nominated Nelson A. Rockefeller of New York to be Vice President; on August 20, 1974, hearings were held in both Houses, confirmation voted and Mr. Rockefeller took the oath of office December 19, 1974. 1

Footnotes

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Twenty-Fifth Amendment - U.S. Constitution - FindLaw

The Fifth Amendment dates back to the 17th century, in England. They used it to protect their citizens. It was designed to protect us just like it protected the people in England. It protects us against government authority in a legal procedure. Amendment 5 states, 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 completed 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.

Question #1 What specific constituencies supported the provisions of this amendment at the time of the Constitutional Convention? Who were they and why did they support it? The Federalists (James Madison) introduced and supported the provisions of the 5th amendment. Madison included a constitutional provision that an individual shall not be compelled to be a witness against himself. Congress added the words in any criminal case, meaning that the provision, which will become one of the Fifth Amendments clauses providing safeguards against abuse of criminal laws. Because the idea that double jeopardy was wrong was so widely upheld by the colonists, James Madison also presented the Double Jeopardy Clause to Congress.

Question #2 Were there any groups or persons that were against the inclusion of this amendment (or any part of it)? Who were they and why did they not support it? There were not any groups or persons that were against the inclusion of the 5th Amendment at the time of the Constitutional Convention. Question #3 Were there any changes or modifications proposed that were not included in the...

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Fifth Amendment - College Essay - Cmikell - StudyMode

Introduction The Takings Clause of the Fifth Amendment is one of the few provisions of the Bill of Rights that has been given a broader interpretation under the Burger and Rehnquist courts than under the Warren Court. It is a clause near and dear to the heart of free market conservatives.

Only certain types of takings cases present serious interpretive questions. It is clear that when the government physically seizes property (as for a highway or a park, for example) that it will have to pay just compensation. It is also clear that serious, sustained physical invasions of property (as in the case of low overflying aircraft, for example) require payment of compensation equal to the difference between the market value before and after the invasion. The difficult cases are generally those where government regulations, enacted to secure some sort of public benefit, fall disproportionately on some property owners and cause significant dimunition of property value.

The Court has had a difficult time articulating a test to determine when a regulation becomes a taking. It has said there is "no set formula" and that courts "must look to the particular circumstances of the case." The Court has identified some relevant factors to consider: the economic impact of the regulation, the degree to which the regulation interferes with investor-backed expectations, and the character of the government action. Still, as our cases suggest, there is a lot of room for argument as to how these various factors should be weighed.

Cases

Penn Central v. New York City (1978) Dolan v. City of Tigard (1994) Lucas v. South Carolina Coastal Com'n. (1992) Tahoe Preservation Council v Tahoe Regional Planning Agency (2002) Kelo v City of New London (2005)

David Lucas on his South Carolina property that the Supreme Court concluded was "taken."

Supreme Court Determines What is "a Public Use"

In June 2005, the Supreme Court decided an important case involving the meaning of "public use" in the Fifth Amendment. In Kelo v City of New London, the Court, voting 5 to 4, upheld a city plan to condemn homes in a 90-acre blue-collar residential neighborhood. New London plans to give the land to a developer for $1, with a 99-year lease, to build a waterfront hotel, office space, and higher-end housing. Justice Stevens, writing for the Court, found this donation of property to a developer to be a "public use." Stevens said that the Court's jurisprudence gave government "broad latitude" to determine what uses might be "public." In a concurring opinion, Justice Kennedy indicated that the Court still stood willing to review on constitutional grounds takings that are arguably simply the city favoring one private owner over another, rather than takings based on a good faith analysis of the public interest. Angry property rights advocates reacted to the decision by suggesting that local governments consider condemning the homes of justices in the majority and turning them over to private developers for construction of B & Bs.

Questions

After the State of Florida spent millions widening beaches to protect against shoreline erosion, a group of oceanfront owners in Destin sued, arguing that the new 75-foot strip of sand should be theirs, and not the government. The landowners argued that the Florida courts had redefined their land boundaries, which used to extend all the way to the tide line, in such a way as to constitute a taking of their property. The Court, 8 to 0 (Justice Stevens not participating because he owned a Florida oceanfront condo), held that the state's actions were not a taking requiring compensation to the owners, noting that the beach erosion project could be seen as an attempt to preserve property values. The Court split 4 to 4 on the question of whether courts could ever be financially liable for a taking. (Stop the Beach Renourishment vs Florida Dep't of Environmental Protection (2010).)

The rest is here:
The Fifth Amendment and Takings of Private Property

The Fifth Amendment to the U.S. Constitution grants citizens (1) the right to be indicted by an impartial grand jury before being tried for a federal criminal offense; (2) the right not to have multiple prosecutions or multiple punishments for a single criminal offense; (3) the right to have individual freedoms protected by due process of law; (4) the right to be free from government compelled self-incrimination; and (5) the right to receive just compensation when the government takes private property for public use.

It states: "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 offence [sic] 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."

It is part of the Bill of Rights that the courts have applied to states through the Fourteenth Amendment. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment. Grand juries and the phrase "due process" both trace their origin to the Magna Carta from 1215. To "plead the Fifth" is a refusal to answer a question because the response could form self-incriminating evidence.

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Fifth Amendment Law & Legal Definition

In a historic victory for gay rights, the Supreme Court ruled on Wednesday morning in United States v. Windsor that the 1996 Defense of Marriage Act is unconstitutional in a 5-4 decision split along partisan lines.

The majority opinion, written by Justice Anthony Kennedy, found that DOMA is a violation of the "equal protection" clause of the Fifth Amendment to the Constitution.

"[It's] no surprise to me that it was struck down," House Minority Leader Nancy Pelosi (D-Calif.)saidjust minutes after the ruling was announced.

"This admission by the court that this bill was unconstitutional was a very important decision for our country, for not only what it means in the lives of people, but also it sends a message of not to be frivolous with the issue of discrimination in our country, and that's what this is about: discrimination," she said.

The Defense of Marriage Act, a 1996 law signed by President Bill Clinton, defined marriage for legal purposes as the union between a man and a woman as husband and wife.

Section 3 of the act barred federal benefits for same-sex couples even in states where same-sex marriage is legal.

The plaintiff in the monumental Supreme Court challenge against DOMA, Edith Windsor, faced the brunt of this discriminatory act. 83-year-old Windsor, who was widowed when her wife Thea Spyer died in 2009, was forced to pay more than $363,000 in federal estate taxes on her partner's estate. She argued that she would have paid no federal state taxes had federal law deemed her marriage the same status as a heterosexual marriage and decided to sue the governmentafter the Internal Revenue Service denied her refund request for the $363,000 in federal estate taxes she paid.

Windsor's experience, however, was not an isolated case.

According to theHuman Rights Campaign,"DOMA singles out lawfully married same-sex couples for unequal treatment under federal law, allowing states torefuse recognitionof valid civil marriages and denying same-sex couples more than 1,100 federal benefits and protections."

The DOMA opinion, written by Justice Anthony Kennedy, declared that the 1996 law violated the Fifth Amendment's equal-protection provision.

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Fifth Amendment: How It Was Crucial in Getting Rid Of DOMA

Grand jury investigations

Before a person can go to trial when accused of a capital crime a grand jury must be presented with an indictment from the prosecuting attorney. The grand jury then decides whether or not there is sufficient evidence to go ahead with a trial or to drop the charges. The grand jury does not decide guilt or innocence, just whether or not there should be a trial. If they decide there is enough evidence to go to trial they return a "true bill of indictment." This is a key Fifth Amendment right.

Double jeopardy

This is a key Fifth Amendment right that protects individuals accused of committing a crime from being tried for the same crime more than once. Hence, once a defendant is found innocent in court they can never be tried for that crime again. However, if the jury gives back a "hung jury" decision the individual is not considered to have been in jeopardy and they probably will get a new trial. They may be tried in multiple courts such as federal, state, and local if they broke different laws according to those individual jurisdictions.

Freedom from self-incrimination - "pleading the fifth"

Many people are familiar with the phrase, "pleading the fifth." This phrase describes one of the key rights given by the Fifth Amendment. It means that individuals do not have to answer questions in court, to the police, and in many circumstances. They have the right to refuse to answer questions because they might incriminate themselves, whether they are on trial or if they are merely a witness. To incriminate yourself means to say something that might lead to your arrest, conviction, or determination of guilt for a crime that you committed. But, individuals can not refuse to answer embarrassing questions or to withhold evidence that might incriminate someone else.

The Fifth Amendment is included in the reading of your rights or your Miranda rights. When the police begin, "you have the right to remain silent," they are referring to your Fifth Amendment rights.

Immunity may be granted to compel witnesses to speak. Immunity grants individuals a guarantee that their testimony will not be used to prosecute them for any crimes they may have committed. Immunity is a way to protect from the overuse of the Fifth Amendment.

Physical evidence

The Fifth Amendment also extends to the protection of some physical evidence or searches. For example, the police can not rush you to the hospital to pump your stomach in search of evidence such as drugs. It does allows other evidence such as fingerprints, handwriting samples, blood, urine, breath tests to show drugs or alcohol, voice analysis, photographs, or police lineups.

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Fifth Amendment - How It's Used