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US Constitution study guide: Difference between revisions
→Amendment 5
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===Amendment 5=== | ===Amendment 5=== | ||
''{{#tip-text:Fifth Amendment overview|Fifth Amendment: | '''{{#tip-text:Fifth Amendment overview|Fifth Amendment: | ||
* generally protects against abuse in criminal prosecutions | * generally protects against abuse in criminal prosecutions | ||
* as well as importantly requiring the government to compensate for property "takings" | * as well as importantly requiring the government to compensate for property "takings" | ||
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** compensation for "takings" (seizure) of private property for public use}}''' | ** compensation for "takings" (seizure) of private property for public use}}''' | ||
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a ''{{#tip-text:presentment or indictment of a Grand Jury|Grand Jury | No person shall be held to answer for a capital, or otherwise infamous crime, unless on a '''{{#tip-text:presentment or indictment of a Grand Jury|Grand Jury | ||
* = tribunals of citizens, usually 12-23 (16-23 under current Federal law) who decide or authorize criminal charges (indictments) | * = tribunals of citizens, usually 12-23 (16-23 under current Federal law) who decide or authorize criminal charges (indictments) | ||
* grand juries require simple majorities, i.e. +50% (as opposed to courtroom juries which require unanimous, or 100%, agreement for conviction) | * grand juries require simple majorities, i.e. +50% (as opposed to courtroom juries which require unanimous, or 100%, agreement for conviction) | ||
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** controlling the jury's access to witnesses and information (providing, as it were, "only half the story") | ** controlling the jury's access to witnesses and information (providing, as it were, "only half the story") | ||
** compelling witness testimony, especially in "fishing expeditions" | ** compelling witness testimony, especially in "fishing expeditions" | ||
** = when prosecutors use a grand jury to gather new information and not to merely to decide to bring charges on something already known}}''', ''{{#tip-text:except in cases arising in the land or naval forces, or in the Militia|military law | ** = when prosecutors use a grand jury to gather new information and not to merely to decide to bring charges on something already known}}''', '''{{#tip-text:except in cases arising in the land or naval forces, or in the Militia|military law | ||
* = the Constitution here distinguishes civil from military law | * = the Constitution here distinguishes civil from military law | ||
* i.e., the standards of behavior and criminality are different in the military than in civilian life | * i.e., the standards of behavior and criminality are different in the military than in civilian life | ||
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** growth in Federal criminal law duplicates much state law | ** growth in Federal criminal law duplicates much state law | ||
** creates opportunity for prosecutorial abuse (prosecutions that are intended to target someone and not merely uphold the law) | ** creates opportunity for prosecutorial abuse (prosecutions that are intended to target someone and not merely uphold the law) | ||
** raises questions about Governor or Presidential pardons, i.e., does a Presidential pardon for a crime also apply to a conviction for the same crime under state law?}}'''; nor shall be {{#tip-text: compelled in any criminal case to be a witness against himself|"witness against himself" | ** raises questions about Governor or Presidential pardons, i.e., does a Presidential pardon for a crime also apply to a conviction for the same crime under state law?}}'''; nor shall be '''{{#tip-text:compelled in any criminal case to be a witness against himself|"witness against himself" | ||
* = protection against "self-incrimination" | * = protection against "self-incrimination" | ||
* a person charged with a crime is protected against providing testimony | * a person charged with a crime is protected against providing testimony | ||
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= exercising one's right not to stand as witness against oneself | = exercising one's right not to stand as witness against oneself | ||
* prosecutors may not use this exercise of the Fifth Amendment as evidence of guilt | * prosecutors may not use this exercise of the Fifth Amendment as evidence of guilt | ||
** i.e, refusal to give testimony against oneself is not an admission of guilt}}''', nor be {{#tip-text:deprived of life, liberty, or property, without due process of law|"Due Process Clause" | ** i.e, refusal to give testimony against oneself is not an admission of guilt}}''', nor be '''{{#tip-text:deprived of life, liberty, or property, without due process of law|"Due Process Clause" | ||
* "due process" means that the law and protections in the Constitution must be followed completely for imposition of penalties ("deprived of life, liberty, or property") as a consequence of violating a law | * "due process" means that the law and protections in the Constitution must be followed completely for imposition of penalties ("deprived of life, liberty, or property") as a consequence of violating a law | ||
* = an important protection against arbitrary (random or select) application of the law and "fair" and "orderly" justice | * = an important protection against arbitrary (random or select) application of the law and "fair" and "orderly" justice | ||
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** even if those rights are not explicit in the law | ** even if those rights are not explicit in the law | ||
** ex., one's right to hold a job or a right to privacy | ** ex., one's right to hold a job or a right to privacy | ||
** substantive due process is problematic in that it involves Court "creation" of rights not in laws drawn by the Constitution or legislatures}}'''; nor shall private property be taken for public use, without just compensation|"Just Compensation Clause" | ** substantive due process is problematic in that it involves Court "creation" of rights not in laws drawn by the Constitution or legislatures}}'''; nor shall private property be '''{{#tip-text:taken for public use, without just compensation|"Just Compensation Clause" | ||
* = the government may seize property for "public use" | * = the government may seize property for "public use" | ||
** i.e., to build a park or a road | ** i.e., to build a park or a road | ||
* but the government must provide "just | * but the government must provide "just compensation" for that property, i.e. must pay a fair price for it (usually a current "market" price, i.e, what someone else would reasonable pay for the property) | ||
* = an important protection against arbitrary rule, under which a government can just take someone's property | * = an important protection against arbitrary rule, under which a government can just take someone's property | ||
** such power exists in many other countries, and their citizens are thereby subject to an arbitrary, or random/select, governmental power | ** such power exists in many other countries, and their citizens are thereby subject to an arbitrary, or random/select, governmental power | ||