Evolution of the Fifth Amendment

5thAmendmentIn the uproar over the SCOTUS decision on the Defense of Marriage Act (DOMA) and California’s Prop 8, was what I feel is a pretty significant decision on our Fifth Amendment rights. Most of us are familiar with our Fifth Amendment rights, “You have the right to remain silent. Anything that you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you…” These are, hopefully, familiar to us because we like to watch police procedurals like Law & Order. The actual text of the Fifth Amendment 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 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.”

In Miranda v Arizona (1966), the Supreme Court ruled that people that were being arrested or were in custody had to be advised of their rights under the Fifth Amendment. As Chief Justice Warren put it, “we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.” In delivering the majority opinion, Chief Justice Warren cited numerous cases in which defendants were detained by policy, subjected to lengthy “interrogations” and ultimately provided statements to the policy that led to convictions. Further, the Court issued these procedural safeguards:

“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”

In 2010, the Supreme Court walked back some of those safeguards in the Berghuis v. Thompkins case in 2010. Specifically, the Court ruled that individuals had to specifically invoke their Fifth Amendment rights. The mere act of remaining silent was no longer sufficient. One had to enumerate that the silence was an invocation of those rights. Last month, the Court went even further in backtracking on the Miranda decision.

In Salinas v. Texas a defendant was asked a number of questions about a murder case and voluntarily answered those questions. When asked about whether ballistics testing would match his shotgun to the one at the crime, the defendant refused to answer questions. During trial, the prosecution used this refusal to answer questions as evidence of guilt. The Criminal Court of Appeals rejected his counsel’s argument that his refusal to answer the question was the equivalent of invoking his Fifth Amendment rights. The Supreme Court affirmed that decision – not only do you have enact your rights, as decided in Berghuis v Thompkins, but failure to specifically state that you’re invoking the right to remain silent means that prosecutors can use that silence against you.

Posted on July 23, 2013, in U.S. Constitution and tagged , , , , , , . Bookmark the permalink. Comments Off on Evolution of the Fifth Amendment.

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