The Fifth Amendment of the United States Constitution May Protect You During an Arrest.

Fifth Amendment.

The Fifth Amendment of the United States Constitution is an important provision as it pertains to criminal activities and arrests by officers of the law.  Under the 5th Amendment “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.”

Due process clause.

The U.S. Constitutional rights, guarantees and protections are to be considered in accordance with all applicable statutes before the government can deprive any person of life, liberty, or property. Basically, a suspect will get a fair trial whereby courts have to recognize both: 1) procedural due process covering a party’s right to be heard, properly notified, and that court jurisdiction can provide a judgment to the crime; and 2) substantive due process covering the fundamental rights “implicit in the concept of ordered liberty” granted under the constitution.

The 5th Amendment had been a federal consideration at its inception but through the 14th Amendment in support of the “due process clause” is utilized at the state level for matters involving:

  1. The right to not self-incriminate, often used at trial to remain silent as the testimony may be harmful to that person;
  2. The right to a fair trial;
  3. The right to avoid being tried for the same crime twice (double jeopardy);
  4. The right to due compensation at market value of property seized by the government.

The only right that continues to be applied only at the federal level is the right to indictment by a grand jury.

How do police violate the 5th Amendment?

If the police do not inform a suspect of their rights when they are arrested, it is a violation of the 5th Amendment.  The tricky part here for the suspect is the officers must do this when they arrest you.  If a suspect gives out information immediately at the outset of an encounter related to the crime before police even determine an arrest will take place, there is a possibility that information could still be used against them.  This is the point where the services of a legal professional may be invaluable to a person’s continued freedoms.

The need to be informed of your rights is commonly referred to as the Miranda rights because this is the case that set precedent regarding a person’s right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one. In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the 5th Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. 384 U.S. 436 (1966).

When are police breaking the law?

  1. When they force a suspect to admit guilt to a crime they have not committed, and/or sign a formal confession under duress.
  2. When they do not read the suspect his rights, and if he/she is not familiar with the law, collect information that may be detrimental to their case.
  3. When they interview a suspect without an attorney present.
  4. When the offer of legal counsel is not made available despite the ability to pay for it.

When law enforcement individuals do not collect the evidence in compliance with the 5th Amendment requirements, the courts sometimes disregard that evidence in protection of self-incrimination, as long as the person did not voluntarily waive their rights as given under  Miranda.  The 5th Amendment does not cover business papers or tax returns because there was no coercion to give information at the time of arrest.

Seek legal counsel.

If you think your rights under the 5th Amendment of the United States have been compromised or denied, seek professional legal assistance by contacting a civil rights lawyer or someone deals with police brutality cases.





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