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Category Archives: Fifth Amendment

Separation of judiciary still elusive in Bangladesh – newagebd.net

Posted: March 31, 2021 at 4:28 am

The separation of the judiciary from other organs of the state remains elusive even after 50 years of Bangladeshs independence as successive governments have amended the constitution to control the judiciary.

Legal experts said that Article 96 of the constitution on the removal of Supreme Court judges for misbehaviour or incapacity was amended on eight occasions between January 1975 and September 2014 while Article 116 on the control and discipline of the lower judiciary was amended on three occasions in 1975, 1979 and 2011.

It is painful that we are deprived of getting full independence of the judiciary from the executive, even though the establishment of an independent judiciary was one of the core objectives of our 1972 constitution, Dhaka University law professor Md Mizanur Rahman told New Age.

Although the law ministry is consulting with the Supreme Court to deal with administrative affairs in the subordinate judiciary, questions can be raised on how much the consultation is effective, he added.

He said that it is not a good sign for a democracy and such deviations bring no blessings for a country and a nation. When the judiciary is kept under the executive, democracy the first casualty, he pointed out.

The power to remove SC judges was vested in the president through the parliament in 1972, then in January 1975, through the Fourth Amendment to the constitution, the president became the sole arbiter.

Later in 1977, the president and the chief martial law administrator were authorised to exercise the power through the chief justice-led Supreme Judicial Council and the system of Supreme Judicial Council was ratified by the fifth amendment to the constitution in 1979, and the power was again vested in the chief martial law administrator in 1983.

All the martial law proclamations, including the Supreme Judicial Council of the fifth amendment, were revived through martial law proclamation in 1986 with the power vested in the chief martial law administrator.

All the martial law proclamations were declared unconstitutional by the High Court on August 29, 2005 in a Bangladesh Italian Marble Works Ltd case, but the Appellate Division in February 2010 retained the Supreme Judicial Council until December 31, 2012 with the observation that the parliament would make necessary amendment to the constitution regarding issues related to the Article 96.

On June 30, 2011, the parliament upheld the Supreme Judicial Council by amending the constitution through the 15th amendment.

In 2014, the government through the 16th amendment vested the power again in the parliament but the High Court on May 5, 2016 declared 16th amendment unconstitutional and restored the Supreme Judicial Council and the Appellate Division to upheld the HC verdict on July 3, 2017.

Jurist Shahdeen Malik told New Age that though the government has yet to amend the constitution to restore the Supreme Judicial Council on the ground that its appeal against the Supreme Courts ruling awaits a hearing, the online version of the constitution incorporated the parliaments authority to remove SC judges.

He said that the separation of the lower judiciary from the law ministry on November 1, 2007 remained on paper because the ministry continued influencing the subordinate judiciary.

He said that the process of recruitments of SC judges was not transparent and partisanship became the norm since early 2000 as no law has been framed yet to set up the qualifications of the judges as per Article 95 of the constitution.

Consequently, there are always some doubts in independent functioning of the higher judiciary, he said.

There is dual control of subordinate judges by the law ministry and the Supreme Court, said Shahdeen, who also added that the law ministry should not have any control over the judiciary as per the constitution.

Although the judiciary has been developed on paper, the independence of the judiciary could not be achieved in reality, SC lawyer and right activist Md Asaduzzaman said.

He said that the judiciary became relatively weaker and more affected since former chief justice Surendra Kumar Sinha was removed as it is him who penned the 16th amendment verdict in 2017.

Judges have been appointed on the political choice of the governments in absence of any law or rules and this is why the higher judiciary has become questionable sometimes, he said.

Asaduzzaman said that the partisan judgements on this occasion come from the judges.

He said that the government wanted to control the judges without making any law for setting out qualifications for Supreme Court judges.

The Appellate Division in the 16th amendment case also restored Articles 115 and 116 from the 1972 constitution.

The governments petition seeking a review of the 16th amendment verdict still awaits a hearing.

The authority of control and discipline of judges and magistrates shall vest in the Supreme Court as per Article 116 of the 1972 constitution.

The Supreme Court lost the authority as the government vested the authority in the president amending the constitution through the fourth amendment.

The Supreme Court lost its authority over lower court judges after the Appellate Division upheld the High Courts verdict that had declared the fifth amendment unconstitutional.

On June 30, 2011, the government restored the fifth amendment provision relating to Article 115 and 116 paying no heed to the Appellate Divisions observation in its verdict on the fifth amendment to reinstate original Articles 115 and 116.

Article 115(1) of the 1972 constitution empowered the president to appoint district judges on the recommendations of the Supreme Court and other persons after consultation of the Public Service Commission and the Supreme Court.

The Supreme Court also lost the authority to appoint district judges and magistrates as the government through the fourth amendment empowered the president to exercise the power in accordance with rules made by him.

The president still retained the power.

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Separation of judiciary still elusive in Bangladesh - newagebd.net

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The Fight Over Minimum Wage Has a Long History in the US. Here’s What to Know About It – NBC 6 South Florida

Posted: at 4:28 am

While the COVID-19 relief bill brought the $15 an hour minimum wage.

Looking back in history, the fight for a minimum wage has been full of political struggle and labor conflict. Here are some notable developments in U.S. history.

The first state-level minimum wage law was passed by Massachusetts in 1912. Soon, other states followed suit over the next two decades. But the state laws were reversed by the Supreme Court in a case called Adkins v. Childrens Hospital of D.C., which ruled that a minimum wage violated employers and workers rights to liberty of contracts under the Fifth Amendment.

In 1938, at the height of the Great Depression, the first federal minimum wage was passed under Franklin D. Roosevelt. Congress passed the Fair Labor Standards Act to improve workers living condition and boost their purchasing power amid the colossal disruption in the American economy. The rate was set at 25 cents per hour, which is worth about $4 today.

Since then, Congress has raised the minimum wage 22 times under 12 different presidents. Most times, Democrats held a majority when Congress approved a minimum wage increase. The current level is at $7.25 an hour, set in 2009.

States and cities have the right to set their own minimum wage standards. Now, 29 states and D.C. have minimum wages above the federal level.

Since 1938, the federal minimum wage went up bit by bit every few years. However, the increase stopped in the 1980s, mostly under the Reagan administration. At the time, America ushered in a wave of conservative thinking that bolstered the idea of the free market. The argument against increasing minimum wage is that it would result in a decrease in jobs, because businesses would be less inclined to hire more workers.

The minimum wage has caused more misery and unemployment than anything since the Great Depression, Ronald Reagan said in 1980 about the Fair Labor Standards Act.

Reagan also suggested that employers should be able to pay young people at a rate lower than the federal minimum wage. He said that teenaged workers tend to be unskilled and a lower-than-minimum wage would help relieve the high youth employment rate, which was more than 18% in 1980.

In 1989, Congress passed an amendment to the 1938 law so that it applies only to businesses with a $500,000 annual revenue. It also mandates small retail businesses to pay its workers the minimum wage and overtime pay in any work week in which they either engage in commerce or make products that will be sold in another state.

The increase of federal minimum wage picked up again in the 1990s, rising from $3.35 an hour in 1989 to $5.15 an hour in 2007. That year, President George W. Bush signed into law the Fair Minimum Wage Act to raise the minimum wage to $7.25 an hour in three stages over two years. It marked a victory for the Democrats who had been pushing for a change for the past decade. However, since 2009, the federal minimum wage has stagnated at $7.25 an hour, while the cost of living has become higher and higher.

In November 2012, a couple hundred fast food workers, backed by Service Employee International Union (SEIU), demonstrated under the banner of $15 in New York City. It marked the beginning of the Fight for $15 grassroots movement to demand a $15 hourly wage, a wage that people can live on.

At first, the demand to almost double the federal minimum wage was a fringe idea in Washington, even within the Democratic party. President Barack Obama endorsed a raise to $10.10 an hour in 2014. Hillary Clinton said that she favored a $12 an hour minimum wage in 2015, before endorsing the Fight for $15 effort shortly after.

The movement mainly focused at the state and city level. Seattle became the first city to adopt the $15 standard in 2014, following the victory of Ed Murray, a mayoral candidate backed by SEIU. New York and California, two large progressive states home to many of the members in the Fight for $15, also followed suit. Progressive activists then moved to moderate and conservative states like Illinois and Arizona. Since January 2014, 28 states and D.C. have raised their minimum wages.

Besides fighting on a local level, Fight for $15 also targeted big businesses like McDonalds, Walmart, and Target.

Now, the movement has long extended beyond fast food and retail. A $15 an hour minimum wage nationwide has become a mainstream idea widely embraced by the Democrats.

The most recent debate about federal minimum wage sees a divide among three camps, not conforming expected ideological or business groupings.

As for the long-held belief that a raise in minimum wage would kill jobs, the Congressional Budget Office said in February that a rise in the minimum wage to $15 an hour would result in 1.4 million job losses by 2025. Other studies have shown mixed results. Some even indicate that higher minimum wages increase employment.

That Congressional Budget Office assessment also estimated that raising the minimum wage would lift 900,000 people out of poverty.

Since the beginning of 2021, 20 states have raised minimum wages. Many fast-food and retail giants, including McDonalds, Amazon, Target, and Costco have committed to paying workers at least a $15 minimum wage.

But the fight for higher pay and labor rights continues. Experts say the new battlegrounds could lie in hero pay, tipped minimum wage, and joint employment.

The pandemic has highlighted how many people in America are living close to the financial edge. For years, working one full-time job has not been enough for many minimum wage workers to get by. Should a full-time job in America guarantee a living wage? NBCLX storyteller Cody Broadway explores how the system is working against our essential workers.

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The Fight Over Minimum Wage Has a Long History in the US. Here's What to Know About It - NBC 6 South Florida

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USCIS: Uvarov’s request for injunctive relief moot; passport returned and he has departed NMI – Marianas Variety

Posted: at 4:28 am

U.S. Immigration and Customs Enforcement has asked the federal court to dismiss Denis Uvarov's lawsuit.

A 33-year-old Russian national, Uvarov sought the return of his passport and demanded $80,000 in compensation for his suffering and for punitive damages.

Uvarov, in his complaint, named officials from Immigration and Customs Enforcement and the Department of Homeland Security as defendants.

Through the U.S. Attorneys Office for the Districts of Guam and the NMI, DHS and USCIS told the court that Uvarovs passport was released to him on Feb. 8, 2021 and therefore his Fifth Amendment claim for injunctive relief is moot.

Uvarov also boarded a plane on March 19, 2021 outbound to Seoul, South Korea, the U.S. Attorneys Office said.

It added that ICE Supervisory Detention and Deportation Officer Chris Danaher approached Uvarov and positively identified him.

Uvarov informed Danaher that he planned to travel to Ukraine, the U.S. Attorneys Office added.

Thus, plaintiffs stated goal of departing the United States was accomplished, it said.

The U.S. Attorneys Office also reiterated that ICEs retention of Uvarovs passport was a reasonable exercise of its broad authority over immigration.

In November 2017, Uvarov arrived in the CNMI as a tourist. When he sought political asylum or refugee status, he said ICE confiscated his passport.

After waiting for two years and never having received an asylum interview, he said he had changed his mind.

On July 10, 2020, Uvarov demanded the return of his passport so that he could leave the island.

When ICE and the USCIS Los Angeles Asylum Office failed to return his passport, Uvarov filed a complaint in federal court, but it was dismissed for lack of jurisdiction on Oct. 26, 2020.

On Dec. 2, 2020, Uvarov filed an amended complaint.

He also received an email from USCIS Los Angeles Asylum office, which informed him that we are unable to schedule non-detained interviews in Saipan at this time. When we are able to resume interviews you will be contacted and scheduled for an interview.

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USCIS: Uvarov's request for injunctive relief moot; passport returned and he has departed NMI - Marianas Variety

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Lawyer tries to throw out confession of Killeen woman charged in Vanessa Guillen case – The Killeen Daily Herald

Posted: at 4:28 am

A defense attorney filed a motion this week attempting to keep a jury from hearing an alleged confession of a woman who is accused of helping her boyfriend cover up the murder of a 20-year-old Fort Hood soldier almost a year ago.

Cecily Aguilar, 22, was being held without bond in the McLennan County Jail on Thursday. She is accused of helping Army Spc. Aaron Robinson, 20, dispose of the body of Vanessa Guillen after he had killed her with a hammer on April 22, 2020, according to a federal criminal complaint.

Spc. Aaron David Robinson is the man who took his own life while being a suspect in the disappearance of Spc. Vanessa Guillen, Fort Hood officials said.

During a hearing next month, U.S. Magistrate Judge Jeffrey C. Manske is set to rule on a 16-page motion to suppress that was filed by Aguilars defense attorney on Wednesday.

According to the motion, Aguilar made statements during an interview with police on June 30, 2020, without being advised of her Miranda rights, which would be a violation of her Fifth Amendment rights against self-incrimination.

The officers did not provide Aguilar (with) Miranda warnings until after three hours of questioning, the motion reads. Instead, they encouraged her to tell them about the alleged crime in order to help herself, without ever informing her that what she said could be used against her in court

Aguilars defense attorney claims that her Fourth Amendment protections against illegal search and seizure were violated before the statements were made, when police performed a traffic stop on a vehicle in which she was a passenger.

The detention morphed into an arrest. (The traffic stop) was not supported by a warrant or reasonable suspicion, according to the motion. Any evidence obtained from the illegal seizures and fruits therefrom should be suppressed.

A hearing on the motion to suppress will be held on April 27 at the federal courthouse in Waco.

Aguilar pleaded not guilty on July 14, 2020, to one count of conspiracy to tamper with evidence and two substantive counts of tampering with evidence. If convicted, she faces up to 20 years in federal prison for each count, according to the U.S. Attorneys Office, Western District of Texas.

So far, four trial dates most recently for March 8 have been set in her case. As of Thursday, no new trial date has been set.

Vanessa Guillen case

The case dates back 11 months. Guillen was reported missing on April 23, 2020.

Months later, on June 30, 2020, her remains were discovered by contractors working along the Leon River near Belton.

The criminal complaint alleges that Robinson murdered Guillen on April 22, 2020, with a hammer and that Aguilar helped him attempt to dispose of the body.

Robinson died on July 1, 2020, from a self-inflicted gunshot wound after he was confronted by Killeen police, officials said.

Aguilar initially lied to police to cover for Robinson, but later helped investigators by letting them record several phone conversations with him, according to the complaint.

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Lawyer tries to throw out confession of Killeen woman charged in Vanessa Guillen case - The Killeen Daily Herald

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Bill would protect juveniles’ Fifth Amendment rights | Serving Carson City for over 150 years – Nevada Appeal

Posted: March 21, 2021 at 5:33 pm

The view outside the Nevada Legislature on Sunday, Aug. 2, 2020.

Assemblywoman Lisa Krasner, R-Reno, joined by public defenders across the state, called on lawmakers to pass legislation designed to make sure juveniles younger than 18 dont waive their Fifth Amendment rights without first talking to a parent, guardian or an attorney.Kendra Bertschy of the Washoe County Public Defenders Office said more than 40 percent of juveniles waive those rights without understanding the consequences. AB251 would require police with a juvenile in custody get them in contact with a parent, guardian or attorney before asking any questions.But Chuck Callaway, representing the sheriffs and police, said if officers cant question juveniles, officers will just arrest everyone. The Nevada DAs Association also came out against AB251 as did several juvenile officers.Bertschy responded saying she was disappointed that law enforcement thinks their only option is arresting everyone.Krasner said the bill would also seal a juveniles arrest record at age 18 to give them a clean slate as they become adults under the law. She said a series of misdemeanors on juveniles records can impact their ability to get a job, go to college and other things.Serious crimes in a juvenile record, including sex offenses, would not be sealed.Alex Ortiz of Clark Countys financial office said he has no problem with the policy in the legislation but is concerned about its potential cost. He said the county would have to open, staff and run another juvenile housing unit at a cost of $2 million a year.The committee took no action on the bill with Krasner saying she would work with stakeholders to resolve some of their issues while still trying to protect juvenile suspects from themselves when taken into custody.

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Bill would protect juveniles' Fifth Amendment rights | Serving Carson City for over 150 years - Nevada Appeal

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SCOTUS to Decide Whether There Is a Fundamental Right to Kick People Off Your Property – Law & Crime

Posted: at 5:33 pm

The Supreme Court of the United States will hear oral arguments Monday in Cedar Point Nursery v. Hassid, a case about the union rights of farmworkers. It could impact the future of anti-discrimination law and much more.

The plaintiffs in the case are two California fruit producers who are suing over a 1975 state regulation that allows union organizers to have temporary access to an agricultural employers property during non-work hours. The laws rationale is to support workers right to unionize by allowing workers access to their workplace premises for after-hours meetings.

California law requires agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The state contends that the regulation is necessary in the specific context of farming: farmworkers tend to be inaccessible to union organizers through other channels, and farm properties lack parking lots or public areas that other workers typically use for gathering. From Californias brief:

[Farmworkers] are highly migratory, moving to follow the harvest every few weeks or months; they often live in temporary housing, sometimes on their employers property; they frequently lack access to modern telecommunications technology; many speak only indigenous languages; and many are illiterate even in their native language. The Boards regulation authorizes a limited number of organizers to access the property of agricultural employers, for brief periods, during non-work hours, solely for the purpose of discussing organizing with employees, and only after notifying the Board and the employer.

Cedar Point Nursery and Fowler Packing Company sued to have the law invalidated, and their argument is based on land use. They say that the law allowing union organizers to meet with workers on their property is an easement that amounts to a per se taking something that would require compensation under the Fifth Amendment.

The after-hours union meetings dont disrupt the employers businesses, and the state of California isnt actually taking the property so to make a Fifth-Amendment argument, the plaintiffs needed to frame their loss as interference with a guarantee that is constitutionally protected. They chose the right to exclude unwanted persons. In other words, the California unionizing regulation deprives the owners of their inherent property right to kick people off their land.

A panel of the Ninth Circuit sided with California, as did the district court. The panel said that because the regulation didnot amount to a physical taking because it did notallow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.The panel also ruled that the statute wasnt a regulatory taking because the only property right affected was the right to exclude and thats simply not enough.

Now, SCOTUS will decide whether the Fifth Amendment protects a right to exclude on par with other inherent property rights. If the justices side with the landowners and agree that the regulation amounts to a taking, it would mean the regulation cannot continue to operate without California paying compensation for its taking of the land. Thats novel in itself, but theres far more drama to be had outside the arena of farming and unionizing.

The fruit-producer plaintiffs argue that the right to exclude should take its rightful place among the most sacred of protected interests: fundamental rights.

When a right is fundamental, any law abridging that right triggers the highest level of constitutional scrutiny. Accordingly, a state regulation that interferes with a fundamental right must be narrowly tailored to achieve a compelling state interest in order to pass constitutional muster. In short, state regulations fail almost always fail this test, because the right being protected has been deemed basically untouchable. (Other fundamental rights include the right to marry, the right to privacy, freedom of religion, and freedom of assembly.)

In an email to Law&Crime,Pacific Legal Foundation attorney Wen Fa, who represents the petitioner fruit sellers in the litigation, explained his clients position in the case:

The Constitution prohibits government from requiring you to allow unwanted strangers into your property. The California regulation here is unconstitutional because it forces property owners to allow unwanted union activists onto their property, and violates the property owners fundamental right to exclude trespassers.

However, Aaron Tang, a constitutional law professor and former clerk to Justice Sonia Sotomayor, warned in a Washington Post piece Thursday that as devastating as a ruling for the plaintiffs would be in the context of unions, its real danger lies outside far outside the context of employment law.

Tang writes:

The disputethreatenshavoc just as great outside the union context. Considerstate lawsthat permit child protection inspectors to make unannounced home visits. Now suppose a homeowner suspected of abuse or neglect wants to keep the inspector out. Under the challengers logic, such individuals would have a Fifth Amendment right to do so unless the government paid the suspected abuser to access the property. The same problem would ensnarenursing home visitsandfood safety inspections.

Indeed, we have seen anti-discrimination ordinances challenged on the grounds that they interfere with First Amendment rights; a ruling that the right to exclude is fundamental would mean an entirely separate basis for bringing legal challenges, rooted in property law (a legal landscape far less politically-charged than religious freedom). The cases potential for broad impact is underscored by the more than 30 amicus briefs submitted to the Court by interested yet uninvolved parties.

As for the justices, their position in the case poses some intriguing questions. The Court decided a landmark union case in 2018; it ruled that an employee who is not a member of a union could not be forced to pay union fees for the collective bargaining done on his behalf. In that case, conservative justice Samuel Alitopenned a decision joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch. JusticesSotomayor, Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer dissented.

A conservative majority might similarly side against the pro-union ordinance in the Cedar Point litigation. However, if decided on Fifth Amendment grounds, such a decision threatens to create just the kind of chaos the conservative justices usually endeavor to avoid.

Oral arguments in the case are scheduled for at 10:00 a.m. on Monday, March 22, 2021.

[Photo by Samuel Corum/Getty Images]

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5th Amendment – Definition, Examples, Cases, Processes

Posted: March 7, 2021 at 1:22 pm

The term 5th Amendment refers to the more well-known aspect of the Fifth Amendment to the U.S. Constitution, which states that no one can be forced to testify against himself in court. The 5th Amendment also ensures that no one can be tried a second time for a crime of which they were already acquitted. This is referred to as double jeopardy. To explore this concept, consider the following 5th Amendment definition.

Noun

Origin

1791 American Constitution

The 5th Amendment is the amendment to the Constitution that protects people from being forced to testify against themselves. On legal television shows, a character may say I plead the fifth! This means that he is invoking his right under the Fifth Amendment to not be forced to say anything on the stand that could incriminate him.

Unfortunately, while it is a persons right to plead the fifth, many believe that someone who pleads the 5th may, in fact, be guilty. Their opinion is that, if he has nothing to hide, why wouldnt he just testify and clear his name? Why would he make it harder for the attorneys to prove their case unless he had something he didnt want them to know.

The 5th Amendment also protects people from something called double jeopardy. Double jeopardy is the process by which a person who was accused of a crime, and found innocent, would then be charged with that same crime again. The 5th Amendment prevents this from happening. Once a person is found innocent by a jury of his peers, even if new evidence is raised after the fact that proves he is actually guilty, he cannot be tried again for that same crime.

The Fifth Amendment right to counsel provides that someone who is being interrogated by police has the right to have an attorney present during the process. This goes hand-in-hand with someone being read his Miranda rights (If you do not have an attorney, one will be provided for you.). In fact, the Fifth Amendment also requires that someone who is being arrested be read his Miranda rights (More on that later).

The right to counsel section of the Fifth Amendment has been invaluable to those who have been charged with a crime. Entire cases have been thrown out when defendants lawyers have shown that their clients werent read their Miranda rights upon being arrested.

For example, the 5th Amendment protects a defendant who provides police with information during an interrogation, which happened after not being read his Miranda rights. In such a case, all of the information he gave to the police can be considered inadmissible and thrown out even if he confessed to the crime.

This is why the right to counsel is so important. Without a good lawyer by his side, a defendant might not even know that certain evidence may be inadmissible, which is crucial to whether his case proceeds or gets thrown out.

There is an equal protection clause in the 5th and 14th Amendments that protects U.S. citizens right to life, liberty and property without interference from the government. For example, the 5th Amendment 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 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 section covers three equal protection clause rights in particular:

On the other hand, the 14th Amendment says that all persons born in the U.S., or provided with U.S. citizenship, are to be considered U.S. citizens, and no one can make a law that deprives a person of his right to life, liberty and property without due process of law. Due process of law is the entitlement that all U.S. citizens have to be treated fairly in the judicial system. Fair treatment includes, for instance, the right to a trial by jury upon being accused of a crime.

Both amendments are similarly worded with regard to their treatment of the equal protection clause. The main difference between them is that the 14th Amendment is more specific with regard to the inclusion of due process. With the 5th Amendment, due process takes place within the court system. With the 14th Amendment, however, due process is a natural right that protects American citizens from government interference with their ability to live their lives, unless what theyre doing is illegal.

For example, the 14th Amendment further protects a persons right to freedom of speech under the Bill of Rights to the Constitution. Therefore, while a protestor may anger a lot of people by burning the American flag, he has the right to do so under the 14th Amendment. What he is doing is not illegal, and therefore the government cannot interfere.

An example of the 5th Amendment at work can be found in the case that started it all when it comes to Miranda rights: Miranda v. Arizona. In 1966, Ernesto Miranda was arrested in Phoenix, Arizona on evidence that supposedly proved he was involved in a crime involving kidnapping and rape. After an interrogation that dragged on for hours, Miranda confessed to the charges. He also signed a statement acknowledging that he was voluntarily making the confession.

At no point before or during the interrogation was Miranda made aware of the fact that he had the right to have counsel present during the interrogation. He was also unaware of the fact that he had the right to remain silent, and he did not know that the statements he was making could be used against him during his trial. Upon learning this, he objected to the usage of his written confession at trial. He argued that because he was unaware of his rights under the 5th Amendment, his confession must be thrown out as involuntary.

Mirandas objection was overruled, and he was convicted of both crimes and sentenced to 20-30 years in prison. His written confession played a major role in his conviction. Miranda appealed his conviction, once again citing the involuntarily-made confession. The Arizona Supreme Court denied his appeal.

In June 1966, Miranda brought his case to the U.S. Supreme Court. The Court then had to decide whether the protections afforded to U.S. citizens under the 5th Amendment could be extended to cover police interrogations as well. The Court ruled in Mirandas favor, 5 4. Specifically, the Court held that:

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendments privilege against self-incrimination.

The Court also included more detailed criteria to support this argument, including:

The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating, and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

And

The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system, and guarantees to the individual the right to remain silent unless he chooses to speak in the unfettered exercise of his own will, during a period of custodial interrogation.

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5th Amendment - Definition, Examples, Cases, Processes

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What is the Takings Clause of the 5th Amendment? – Pacific Legal Foundation (PLF)

Posted: at 1:22 pm

In 2013, the government forced Rose Knick to grant the public access to her farmland after it was rumored to be the location of a former burial site.

Rose was offered no compensation in exchange for this requirement to allow would-be grave seekers to trespass on her private farma violation of her constitutional rights.

Youve just come face-to-face with the legal principle of takings, under which a government entity takes your private property for public use, either directly by an eminent domain seizure, or indirectly by regulation.

If theres good news in this scenario, its that as a property owner in the United States, youll still enjoy certain rights when youre faced with a property taking, including a right to full compensation and a right to challenge the seizure in court.

In Roses case, Pacific Legal Foundation represented her free of charge, ultimately resulting in a victory at the Supreme Court.

But what is the actual concept of a taking, and why is it so important in our system of government?

As with so many contemporary legal questions, the origin of the debate over property rights stretches back to the very founding of our nation.

Among the key goals of our nations founding documents was to protect individual rights and to place strict limitations on the powers of both the federal and state governments. The Founders well understood that protecting private property rights was of paramount importance in meeting those goals.

While the colonists were still living under British rule, property rights were routinely violated. Writs of Assistance subjected colonists to invasive searches and seizures by British troops under the guise of searching for goods that may have been imported illegally and on which taxes had not been collected. This is precisely why the Fourth Amendment came into existence.

Several other key provisions in the Constitution recognize the fundamental purpose of property rights. For example, the Takings Clause of the Fifth Amendment, which limits the power of the federal government, provides that nor shall private property be taken for public use, without just compensation.

Or consider the Due Process Clause of the Fourteenth Amendment, which similarly limits the power of state and local governments by commanding that nor shall any state deprive any person of life, liberty, or property, without due process of law.

These provisions recognize the fundamental nature of the rights we call propertythe right to tell otherskeep out; the right to develop and use land; and the right to derive income from that property. These rights were critically important, both to the Founders who adopted the original Constitution after the Revolution and the drafters of the Fourteenth Amendment after the Civil War.

And this is where takings come in. The usual situation where the governments power is limited is when it acquires private property by eminent domain. As the Supreme Court has recognized, all sovereign governments have the power of eminent domain by which they can force the owner of private property to sell it to the government.

But that power is limited: it can be executed only as long as the taking is for public use, and the government provides the owner with just compensation. If the public benefits from taking someones private property, it is only fair that the entire publicand not a lone property ownerbear the cost.

That is exactly how the Supreme Court summed it up more than 50 years ago:

The Fifth Amendments guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

A half-century later, that assessment remains a sound basis for limiting government power and protecting property owners in disputes over takings.

The typical situation is where private property is taken for some public use, such as a highway, post office, or military base, and the government agrees to compensate the owner. It may not seem fair to be forced to give up property, but at least the owner can be confident theyll be justly compensated for the loss, thanks to the aforementioned Fifth Amendment guarantee.

Thats one kind of taking. But the other kind of taking is perhaps a greater threat to property rights because it is more subtle and insidious: regulatory takings.

In a regulatory taking, the government simply adopts regulations that have the effect of restricting the use and value of the property, rather than outright seizing the property. Regulatory takings include things like severe environmental restrictions, outlawing otherwise legal uses, or requiring that the owner allow members of the public on their land.

And critically, even where a regulation severely limits the uses of the property or seriously devalues it, the government does not recognize any obligation to provide the owner with compensation. In such cases, officials will typically say they are only regulating property, not taking it, even though from the owners perspective, the effects on use or value are so severe that government might as well have taken it through eminent domain.

As it turns out, these regulatory takings are eminent domain in all but name, as PLF has proven in court repeatedly.

Nearly a century ago, in Pennsylvania Coal Company v. Mahon, the U.S. Supreme Court recognized the governments constitutional obligation to pay just compensation when it regulates property so severely that it has a devastating effect on the owners use or value.

PLF has drawn on that critical precedent, as well as the language of the Fifth and Fourteenth Amendments to the Constitution, when representing property owners in takings cases, including Supreme Court victories in Nollan v. California Coastal Commission, Knick v. Township of Scott, Pennsylvania, and other cases.

In the most recent example, Cedar Point Nursery v. Hassid, a case now pending at the Supreme Court, PLF represents a California nursery that is being forced by state labor regulations to open its land and allow union representatives on the property to make their pitch to workers.

But what about the owners right to tell others to keep out? Dont California property owners have that right, and why dont Californias rules recognize that there are other places where union organizers can reach these workers just as easily? If California wants to use Cedar Points land as a venue for labor organizing, isnt that essentially the same thing as a taking by eminent domain?

Those are the very questions at the heart of Cedar Point Nurserys challenge to the State of California, in which PLF is arguing that the states union access rule amounts to yet another form of regulatory taking. In so doing, well be adding a new chapter to the long defense of private property rightsa story thats been in development for some two and a half centuries.

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What is the Takings Clause of the 5th Amendment? - Pacific Legal Foundation (PLF)

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Ghost of March 4 inauguration back to haunt us – Olean Times Herald

Posted: at 1:22 pm

The last time that we wrote about a president being inaugurated on March 4, it was in 1933: Frank Roosevelt takes office today; and Mr. Roosevelt enters the White House when the country is at what we all hope is the bottom of the worst depression it has ever suffered.

You see, March 4, used to matter. A lot. It was when Congress and the president began their terms. But the date has been a relic of history since the 20th Amendment, ratified that same year, 1933, moved the inauguration up six weeks to reduce the lame duck period from early November.

Starting in 1937, the presidential action has been on Jan. 20, with Congress beginning on Jan. 3.

Weve cracked open the archives because some crazed supporters of Donald Trump believed he would be sworn in Thursday, that March 4 is still all-important. Because the last time Trumps crazed supporters believed a nutty theory about presidential succession, they sacked the Capitol.

The lunacy goes like this: When ratified in 1868, the 14th Amendment supposedly did something that caused everything that followed to be not legitimate, including the 20th Amendment. Were not sure if the 14th still counts, but anything later is void, from the 15th to the 27th. No more rights of Blacks (15th) and women (19th) to vote. No more income tax (16th).

Hmm. Maybe the correct theory is that only the original Constitution is actually real, meaning no Bill of Rights, no free speech, no Fifth Amendment criminal rights, and there still would be slavery.

March 4 was in the 12th Amendment, not the 1787 Constitution. The Continental Congress picked the date for the new government. But the new government didnt make it. The first House met April 1, 1789, the first Senate on April 6, when they jointly counted the electoral votes. Washingtons inauguration was April 30. We guess hes not legitimate either.

New York Daily News/TNS

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What you need to know as Chauvin trial starts Monday – TwinCities.com-Pioneer Press

Posted: at 1:22 pm

The trial of Derek Chauvin, the former Minneapolis police officer charged with murder and manslaughter in the death of George Floyd, starts Monday.

The trial is expected to attract heavy attention from national and international media as Floyds death sparked mass protests and unrest.

Heres what you need to know.

Monday is the first day of jury selection, which is scheduled to last for three weeks. Also Monday, a motion hearing is scheduled for 8 a.m.

On Friday, the Minnesota Court of Appeals said that Hennepin County Judge Peter Cahill, who is overseeing the trial, erred when he refused to reinstate a third-degree murder charge against Chauvin that the prosecution wanted.

The matter has been sent back to Cahill for him to reconsider, and Cahill may issue a decision this weekend or early next week. It is unclear if Mondays hearing is about the third-degree murder charge or what effect a third-degree charge will have on the start of trial, if any.

The process of selecting a jury is called voir dire, which is French for to see and to say. Prospective jurors will take an oath promising to answer questions truthfully. Questions can be asked to the jury in a written questionnaire and orally in the courtroom. The prosecution and defense can challenge potential jurors for cause if they think there is a clear reason why they should not qualify.

If a potential juror isnt dismissed for cause, then the prosecution and defense can decide if they want to use a peremptory challenge to strike someone from the jury without needing to provide a reason why. Prosecutors have nine of these challenges while the defense has 15.

Something that may come up during jury selection is a Batson challenge, which occurs when either side suspects the other side is striking potential jurors based on race or sex. The judge decides if the potential juror should stay if this challenge is used. The Batson challenge has no limit on the amount of times it can be used.

Jury selection is expected to last about three weeks, but it could be shorter or longer than that. Due to COVID-19 restrictions, the process will likely take longer than usual because fewer people can be in the courtroom at one time.

The 12-person jury will be made up of individuals who live in Hennepin County. And there will be up to four alternate jurors. Jurors are required to consider all evidence presented to them instead of their feelings and beliefs.

Richard Frase, a professor at the University of Minnesota Law School, said that while it may be hard to imagine how to find jurors who dont have their minds made up on the case, it is possible.

Hennepin County is a large county, Frase said, and it includes rural areas in addition to urban ones. Some who live in rural parts of the county may not be as aware of the case or follow Twin Cities media as closely as those living in Minneapolis.

The further out you are, the less things that happen in Minneapolis concern you, Frase said. So theres gonna be plenty of potential jurors that really dont know much about this case.

However, Mark Osler, a professor at the University of St. Thomas School of Law, said he believes it will be hard to find jurors who arent up to speed on the case. Osler said the judge likely will be careful and meticulous when questioning the jury, and it may well take longer than an average jury selection.

Chauvin is charged with one count of second-degree felony murder and one count of second-degree manslaughter in the May 25 death of Floyd, 46. Heres a deeper look into the charges Chauvin will face at trial.

Prosecutors also tried to reinstate a third-degree murder charge and Fridays Court of Appeals ruling opens the door to that. Legal experts say that prosecutors likely want to have as many shots at a conviction as possible.

Yes, he will be present as well as his attorney, Eric Nelson.

The prosecution team consists of Assistant Attorney General Matthew Frank, Special Attorney for the State Neal Katyal and a number of others.

Minnesota Attorney General Keith Ellisons office is prosecuting the case, but Ellison is not expected to make legal arguments during the trial, although he may be in the courtroom at times.

Its unknown at this time if Chauvin will testify. His attorney is not required to give notice if Chauvin intends to until the time comes for him to testify.

Thats maybe the biggest mystery in this case, Osler said.

Defendants are not required to testify under the Fifth Amendment of the U.S. Constitution.

The trial will be held at Hennepin County Government Center in downtown Minneapolis.

As part of security measures, fences and barricades are being put up around the government center and Minneapolis City Hall. Officials are planning to bring thousands of sheriffs deputies, police officers as well as the Minnesota National Guard to the area.

Osler said security at this trial is unlike anything seen before at a court proceeding in the Twin Cities.

Due to COVID-19 regulations and the high-profile nature of this case, access in the courtroom is extremely limited.

There are two seats for members of the media, which will be rotated out each day. Other media members will work across the street.

There also is one seat in the courtroom available for a member of Floyds family each day, and one seat for a member of Chauvins family. Benjamin Crump, an attorney for the Floyd family, said in a tweet that the Floyd family was disappointed that only one family member is allowed inside the courtroom at a time.

Members of the general public will not be admitted into the courtroom as the trial will be broadcast.

Minneapolis Mayor Jacob Frey said at a news conference on Feb. 24 that there will be designated areas outside of the Hennepin County Government Center for individuals to protest and gather.

Activists have criticized the citys plans to have a large police presence downtown.

Yes. Cahill ordered in November that the trial will be recorded, broadcast and live-streamed in audio and video. Most local and some national television news organizations are expected to carry the trial live.

According to Cahills Nov. 4 court order, members of the jury will be kept anonymous from the public.

They will be partially sequestered during the trial, and will be escorted to and from their vehicles before and after each trial day. They will be ordered to avoid speaking with the media. Jurors may be fully sequestered during the trial if the partial sequester plan isnt effective in keeping jurors from outside influence, the court order says.

The jury will be fully sequestered while they deliberate the verdict.

The names, addresses and other identifying information of jury members will be kept private during the trial.

Opening statements in Chauvins case are scheduled to begin no earlier than March 29.

The prosecution will present their opening argument first, as they carry the burden of proof because Chauvin is presumed innocent until proven guilty.

During opening statements, prosecuting attorneys will give an overview of what they will be arguing during the trial, and what types of experts or witnesses they will call and what evidence they will present. The defense may make their opening statements as soon as the prosecution finishes theirs, or they can wait until the prosecution argues their whole case.

The prosecution and defense will call witnesses and experts and present evidence as part of their arguments.

As with opening statements, the prosecution will go first. Each witness or expert will be directly examined by the side that called the person to the stand, and the other side will have an opportunity to cross-examine them.

The prosecution and defense will then make closing statements, with the prosecution going first again. However this time, the prosecution may also speak after the defense gives their closing statement, giving the final word before the trial ends and the jury deliberates.

The prosecution has about 360 names on their witness list, while the defense has more than 200. Not all of those witnesses need to be or will be called.

The prosecutions list includes the three other former officers charged in Floyds death, as well as Minneapolis Police Chief Medaria Arradondo; Darnella Frazier, the woman who recorded video of Floyds death outside Cup Foods; and Floyds brother Philonise Floyd.

According to legal experts, a lot of emphasis will be placed on Floyds autopsy and what caused his death.

Because Floyd had fentanyl and methamphetamines in his system when he died as well as underlying health conditions, according to the autopsy, the defense is expected to argue those factors contributed to his death, rather than Chauvins actions. The defense likely will also argue that the force Chauvin used to restrain Floyd was necessary.

The video that widely circulated online of Chauvin kneeling on Floyds neck also is expected to be shown. Legal experts say the video greatly helps the prosecutions case.

Several legal experts agreed that this case is in the prosecutions favor. The video of Floyd as well as the nature of Minnesotas second-degree murder statute make the prosecutions case strong.

However, some legal experts say the case against the other three former officers who will be tried at a later time is much weaker.

Following three weeks of jury selection, there will be an estimated two to four weeks of trial.

This means a verdict from the jury could be expected around early to mid-April, but that timeline could change and stretch into May.

Its hard to predict what will happen until the jury reaches a verdict. If Chauvin is acquitted, the prosecution will not be able to appeal the case. If Chauvin is convicted, he can appeal.

Should Chauvin be found guilty by the jury, he will later be sentenced. The maximum sentence for second-degree murder is 40 years and the maximum sentence for second-degree manslaughter is 10 years. If Chauvin is convicted, he will only be sentenced for the most severe charge.

The other three former Minneapolis police officers charged in connection with Floyds death J. Alexander Kueng, Thomas Lane and Tou Thao are scheduled to go to trial starting Aug. 23. They are all charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter.

Legal experts say this trial is perhaps the most important trial of Minnesotas modern era.

First, because police officers are rarely charged in court. Its also rare for them to be convicted. In recent years, the only officer to be convicted of killing someone while on duty in Minnesota was Mohamed Noor, the former Minneapolis police officer who shot and killed Justine Ruszczyk Damond in 2017. He is currently serving a 12-year prison sentence.

Second, race is a significant part of this case, Frase said. Chauvin is a white man who kneeled on Floyd, who was Black, for about nine minutes. Floyds death sparked mass protests across the country and the world against police brutality.

The result of this trial may have a significant impact on this movement worldwide.

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What you need to know as Chauvin trial starts Monday - TwinCities.com-Pioneer Press

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