Crossville Chronicle, Crossville, TN

March 27, 2013

Scout Report: You have the right to remain silent

By Clinton Gill
Glade Sun editor

CROSSVILLE — The Fifth Amendment to the United States Constitution reads:

“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.”

When most people think about the Fifth Amendment, the first thing that comes to mind is probably the self-incrimination clause; however, there are several equally important protections included in this amendment. Among these are the grand jury clause, double jeopardy clause, due process clause and the eminent domain clause.

The self-incrimination clause is a very important protection. If you've ever watched one of the popular court-based television shows, like Law & Order, then you've probably seen clever defense attorneys invoke the Fifth Amendment to get charges against their guilty clients dropped because of a "technicality."

As previously discussed, the framers of the Constitution did not write in these protections to shield criminals from justice. Rather, they were intended to be a guarantee against tyrannical government abusing the citizenry. The purpose is to keep the government from forcing a confession through force, coercion or deception.

The right to be excluded from self-incrimination has roots in English law, dating back to the 17th century trial of John Lilburne. Lilburne was a Puritan who opposed the hierarchy of church government being imposed across England. In 1637, he was prosecuted for attempting to smuggle Puritan pamphlets into England. Lilburne was sent before the Star Chamber, which was a court that had become infamous for oppressing political and religious dissidents. The Star Chamber met in secret, tortured witnesses and sentenced those it found guilty with anything unpleasant they could think of short of death – including mutilation, life imprisonment and exorbitant fines. 

Sensing that the court was trying to trap him, Lilburne refused to take an oath requiring him to answer truthfully any question asked of him. As a result, he was put in the pillory (a device similar to stocks but evidently more painful; the main purpose is humiliation), whipped and sentenced to be imprisoned until he conformed and confessed to his crime. Lilburne spent three years in prison, during which time he wrote pamphlets detailing the injustices committed against him. Eventually, King Charles was forced to order his release because of the public outcry Lilburne created. In 1641, the Star Chamber was abolished.

The framers realized that unbridled government had virtually limitless resources to use against its citizens. Historically, victims of injustice had little recourse in redressing their innocence. Even in the colonies (prior to the ratification of the Constitution), torture was sometimes used to extract confessions in cases involving capital crimes – extreme pain, however, does not discriminate against the guilty. The Fifth Amendment necessarily puts the burden of proof on the prosecution.  

In 1966, the Supreme Court decided on the historic Miranda v. Arizona case, under which persons who are taken into police custody must be informed of their Fifth Amendment rights. Miranda rights are one of the main "technicalities" trivialized on cop shows; often being spoken of with disdain. Technically speaking, there is no such thing as "Miranda rights" – your rights are already guaranteed by the Fifth and Sixth Amendments. The correct term is actually "Miranda warning." Police are required to issue this warning to anyone taken into custody before they can be questioned:

1. You have the right to remain silent.

2. Anything you say can and will be used against you in a court of law.

3. You have the right to an attorney.

4. If you cannot afford an attorney, one will be appointed for you.

Failure of the police to issue the Miranda warning advising suspects of their Fifth Amendment rights generally makes any evidence collected against them inadmissible in court. This includes confessions as well as any physical evidence discovered as a result of a confession, as it is presumed to be involuntarily submitted.

I cannot emphasize enough how this "technicality" should not be marginalized. The presumption of innocence is an essential principle of the justice system. However, the reality is that no one would face trial if everyone presumed them to be innocent. Police may assume your guilt and attempt to provide the prosecution with enough evidence to convict you. If the police assume your guilt, they aren't going to submit any evidence that could be used to prove your innocence. Notice, the Miranda warning does not state "anything you say can and will be used for you in a court of law." Even innocent people can be tricked into being guilty, which is why you should never, under any circumstances, talk to police without your lawyer present.

In case you were wondering, Miranda was actually retried after the Supreme Court overturned his case and was sentenced to 20-30 years in prison for kidnapping and rape, even after his confession was omitted. These protections were not included to shield criminals from justice, they were wisely included to protect you from injustice.