The Fifth Amendment: Self Incrimination AND Due Process Research Papers Example

The Fifth Amendment to the US Constitution is part of the Bill of Rights. Like other amendments that make up the Bill of Rights, it was introduced to Congress on September 5, 1789 and ratified by the necessary number of states on December 15, 1791. It states that a person charged with a penal offense has the right to due process, he should not be held responsible twice for the same offense and shall not be compelled to incriminate himself, and that the government "has no right to take private property without fair compensation." It should be noted that in the American law there is a guarantee of re-bringing to responsibility, rather than re-sentence. This means that if a person has been acquitted by the court, re-charged him with the same crime is not possible.
The Fifth Amendment to the US Constitution consists essentially of two important provisions that serve to protect the legitimate rights and interests of individuals in legal proceedings. First, no one can be forced to admit his guilt in committing offense. Secondly, no one can be forced to give explanations, statements which may constitute grounds for suspicion, accusations in committing offense. These two provisions can be viewed as a whole and separately, but in any case they are not only a common basis of legal proceedings, but also safeguard against abuse by persons engaged in legal proceedings. A person shall not be held liable for refusing to testify or to explain anything about him, family members or close relatives, as defined by law, and in fact establishes a legal institution, as witness immunity. Under the law of witness immunity should be understood exemption of certain persons from prescribed by law obligation to testify and give explanations about him or persons, whose range is determined by law.
The right not to incriminate oneself implies, in particular, that the prosecution side trying to prove his version in respect to the accused can not use evidence obtained through coercion or oppression in defiance of the will of the accused. In addition, the admissibility as evidence of statements obtained by torture, in order to establish the relevant facts leading to his injustice in general, regardless of the probative value of such evidences have crucial importance for condemnation of the defendant by the court. Considering the right against self-incrimination, the right not to answer questions and not to incriminate oneself can not be interpreted as providing general immunity (with respect to actions motivated by a desire to avoid an investigation).
The right not to incriminate oneself is primarily concerned with respect for the will of the suspect not to answer questions related to the legal proceedings in respect to him and the use of information obtained under duress. However, each activity, applied in order to encourage a person to provide information to authorities, should be regarded as unlawful coercion. In itself, this law does not prohibit coercive powers by requiring persons to provide information, for example, about their financial assets, although their failure to provide can be punished, or, as in this case, compulsory powers to require persons to provide information by parliamentary investigation commission, since it would be difficult to imagine how such a commission functioned effectively without such authority. (Amos N. Guiora 65-70)
The law says that a suspect, the accused has the right to give explanations, testify about suspicions, accusations, or at any time refuse to give them. A witness has the right to refuse to testify about him that may be grounds for suspicion, accusations in committing a crime by him. A person's right not to say anything about the suspicions or accusations against him should be promptly and fully explained by the authorized persons at any stage of the legal proceedings. About these rights a person shall be immediately notified by the investigator, prosecutor or judge. They must explain to him before carrying out the investigative actions. Investigator judge, the court, in which arrived or delivered a suspect or the accused to participate in the examination of an application of a preventive measure, it is obliged to explain the right to refuse to give explanations, testimony about the suspicion or accusation.
During the detention the authorized officer shall immediately inform the detainee in language which he understands the grounds for detention and in the commission of what crime he is suspected, and to clarify the right to have a defense counsel, to give an explanation, testimony or not to say anything about the suspicions against him. Judicial manager shall give the persons, involved in the case, the memory of their rights and obligations under the Constitution. Moreover, the presiding officer finds out whether is clear to them their rights and responsibilities and, if necessary, explains them again. Explanations of the above law has a fundamentally important character, because if during the pre-trial investigation or court proceedings it is established that this right was not clarified to persons, such testimony can not be recognized as acceptable evidence in legal proceedings. (J. Harr et al. 365-373)
Lawyer in order to ensure adequate protection of the rights and legitimate interests of citizens, called for questioning by officials of the body of initial inquiry or preliminary investigation, recommends fully exercise the right to appear for questioning with the lawyer and to receive from him the proper help and advice. This recommendation stems from the fact that the witness can not always anticipate and determine what information can be used in the future against himself or his close relatives. In addition, the lawyer strongly advises to seek legal assistance from the bar association on the allegedly unlawful conduct by officials of the body of initial inquiry or preliminary investigation or in other cases, when these officials abuse their right. As a witness to give testimony may be called any individual who may be aware of any circumstances that are important for tax control. At the same time, can not be questioned as a witness people who, because of young age, their physical or mental defects are not able to correctly perceive circumstances that are important for tax control, as well as persons who have received the information necessary for the tax control in connection with the performance of their professional duties, and similar information related to professional secrecy of such persons, in particular a lawyer, auditor.
The officials for getting information from citizens can use a variety of psychological and other techniques and methods. It is no coincidence in many law schools is taught the topic "Psychology of interrogation" and other investigative actions. Negative effects can be fraught with proposals to "give a little explanation, clarification," "provide information", "verbally answer a few questions," even on the phone, "just to talk", "comment on a particular situation". Sometimes they offer to talk "without recording" or "out of office", "outdoors". Such a "conversation" can be recorded using audio or video technology or later legalized by law enforcement officers in the form of report or questioning of interlocutor that is not prohibited by law. In the future, such documents may be considered reliable evidence and refute them will be very problematic. (Ioannis G. Dimitrakopoulos 160-172)
For the prevention of crime and illegal actions the police officers conduct a whole complex of operational search activities that are official and unofficial. To official operatively-search actions, that is when the person in respect of which they are held, informed about their conduct can be attributed, for example, survey and inspection of the premises, buildings, terrain sectors and vehicles. Unofficial operatively-search actions are the activities carried out without the knowledge of the person against whom they are held (for example, inquiries, purchase of tests, the identification of the individual, control of postal items, telegraph and other communications, wiretapping of information from technical communication channels; controlled delivery, operational experiment and others). In practice, there are cases when employees of bodies of the operative-search activity do not want to allow lawyers to conduct official search operations, citing the fact that the lawyer is allegedly necessary only after the criminal case. Such an assertion, as suggested by counsel in criminal cases is a violation of constitutional rights and interests of citizen. Illegal actions of police officers who have committed illegal restriction of freedom of movement of citizens and his retention, illegally delivering him to the bodies of inquiry and investigation or detention in isolation without any contacts, including preventing the use of telephone and other means of communication, or his unjustified detention and preventing to him a lawyer, and any other actions that substantially restrict liberty and security of the citizen may be appealed to a superior prosecutor or in court.
In the United States 5th and 14th amendments to the Constitution prohibits the government from depriving "any person of life, liberty, or property without due process"; they are interpreted primarily as a requirement to comply with fair and impartial procedure. In addition to this general guarantee, the US Constitution establishes some specific procedural rights, especially for those accused of crimes. The right to a fair trial is a generally recognized international legal norm, directly related to human rights. It is inextricably linked to the right to an effective restoration of violated rights and recognition of the fact that the most appropriate body able to ensure that recovery is a court. Therefore, all the authoritative international legal instruments secure primarily the right to judicial protection, and access to justice. The right to a fair trial establishes guarantees for individuals, not states. This means that the Court will not consider a complaint against the violation of the guarantees of a fair trial, which caused damage to the state or in civil proceedings or in criminal proceedings. (Brian Duignan 36-40)
Justice - the category of moral and legal, social and political consciousness, the concept of due process, historically associated with changing notions of inalienable human rights. It is a requirement of correspondence between the real significance of the various individuals and their social position, between their rights and obligations, between the act and reward, employment and remuneration, crime and punishment, and so on. The discrepancy in these relations is assessed as injustice. The requirement of compliance as the main content of fairness in relation to justice in law is expressed in its implementation on the basis of full equality. This condition is emphasized in the authoritative international legal instruments securing the mandatory minimum requirements for court proceedings in criminal cases. One of them is the right to be tried in his presence, and to participate in the proceedings on the basis of full equality.
The participation in legal proceedings on the basis of complete equality in terms of procedural law is referred to the adversarial principle. The main purpose of this principle is to ensure the rights of a person accused of a crime at some point in the case against him to have a proper trial and a proper opportunity to challenge any evidence incriminating his witnesses. In this regard, the Court considers that, in principle, all the evidence in a criminal case should be presented in the presence of the accused at public proceedings for the purpose of conducting the adversarial debates. The essence of the interpretation of the law is that it is aimed at ensuring equality between the prosecution and the defense in court, not only to the fact that the accused may require call and examine any witness. This, essentially, is about the attitude of the court to any application, to any rights of the parties in legal proceedings.
Although justice and the adversarial are not identical concepts, the American community considers one of the most important requirements of a fair trial its implementation based on the adversarial and full equality of the parties. Thus, among the fundamental features of fairness which are important for the understanding of its actions, the most important is the principle of "equality of initial conditions", according to which all parties in the legal proceedings should have an equal opportunity to present their case and none of the parties shall enjoy any advantage compared with the opposing party. The equality of initial conditions is a procedural equality of the accused and the prosecutor, which is an integral element of a fair trial. The separation of basic procedural functions defines a particular type of process. Court acts as an arbitrator between the parties - the prosecution and defense, which are competing with each other, represent to the court evidences to support their arguments. Only the court directs the process, determines the admissibility of evidences and makes a decision in favor of one party. The court has not a duty of a full and complete investigation of the circumstances of the crime and to establish the truth of the case - it should do the party. Therefore, the court does not compensate gaps in the evidences, admitted by the parties and does not require on its own initiative any additional evidence.
Court proceedings will be really competitive, and hence fair, when the functions of the prosecution, defense and settlement of the case will be divided between the parties; the parties will have absolutely equal rights in the process. Currently, the prosecutor in legal proceedings has some pre-emptive rights over the defender, which contradicts the principles of fairness and equality of the parties. If the defender has the right to express his views on emerging during the trial issues, the same right has the prosecutor. This actually puts the latter in the position of the expert on legal issues. The prosecutor may appeal against any unlawful or unjustified sentence of the court, even if he did not support the public prosecution in the case. Defender also has this right only in case of his participation in the legal proceedings. The prosecutor is obliged in all stages of the process to take legal measures to eliminate any violations of the law, no matter from whoever these violations may come, including the court, and the defender does not exercise such rights. Therefore, the prosecutor is considered as the supervisory authority over the legality in the court and lawyer (and even the court!) is the object of this supervision. (John D. Leshy 57-68)
Miranda v. Arizona. Miranda vs. Arizona is a historical case considered by the Supreme Court of the United States of America. It was considered from February 28 to March 1, 1966, the decision was announced on June 13, 1966. The decision in this case the court established that any testimony as incriminating and exculpatory can be used in court only if the prosecution party can prove that the suspect before the interrogation was informed of the right to a lawyer and the right not to incriminate himself . In March 1963, for the abduction and rape was arrested a native of Arizona named Ernesto Arturo Miranda. After two hours of arrest and interrogation, he confessed in raping a young woman. At trial, as evidence were presented the testimony of the victim of Miranda with his own confession. As a result, Miranda was convicted of kidnapping and rape for 30 years. Miranda's lawyer appealed to the Supreme Court of Arizona. Arizona Supreme Court found no violations and confirmed the earlier made decision. (Liz Sonneborn 4-27)
Supreme Judge Earl Warren, former prosecutor, taking into account that the questioning has always coercive character, found confessions obtained during police interrogation not relevant to the Fifth Amendment and inadmissible as evidence, except in the case when the suspect knowing about his right to silence, voluntarily renounced from the lawyer.
“Before questioning the suspect must be clearly and unambiguously informed of his right to remain silent and that everything said can be used against him in court. The suspect must be clearly and unambiguously informed of his right to counsel, the right to give evidence during interrogation in the presence of a lawyer, and that if the suspect is unable to pay for a lawyer, they will be provided at the expense of the treasury.” (Fifth Amendment to the Constitution)
Despite pressure from the American Civil Liberties Union, the court did not do mandatory the presence of a lawyer at all interrogations. The court also did not include the text of the decision on the recommendation to call a lawyer at first interrogation, since both of these provisions threatened to make interrogations meaningless. It was obvious that any competent lawyer would advise his client to remain silent. Warren drew attention to the fact that the notice of the right to counsel and to remain silent has become a practice in the FBI, and that the Military Law Code contained provisions that required to notify detainees of the right to silence.

Works Cited

Amos N. Guiora. Constitutional Limits on Coercive Interrogation. Oxford University Press, 2008. Print.
Roger Miller, Mary Meinzinger. Paralegal Today: The Essentials. Delmar Cengage Learning, 2014. Print.
J. Harr, Kären Hess, Christine Hess Orthmann, Jonathan Kingsbury. Constitutional Law and the Criminal Justice System. 2013. Print.
Ioannis G. Dimitrakopoulos. Individual Rights and Liberties Under the U.S. Constitution: The Case Law of the U. S. Supreme Court. Koninklijke Brill, 2007. Print.
Brian Duignan. The U.S. Constitution and Constitutional Law. Britannica Educational Publishing, 2013. Print.
John D. Leshy. The Arizona State Constitution. Oxford University Press, 2013. Print.
Liz Sonneborn. Miranda V. Arizona: The Rights of the Accused. Rosen Publishing Group, 2004. Print.
Paul Ruschmann. Miranda Rights. Infobase Publishing, 2007. Print.