Herrington: Due Process and the 5th Amendment

Chris Herrington, Contributing Writer

     Pleading the 5th and What That Really Means/420

     We have all been led to believe that faced with telling the truth about our guilt or our remaining silent about it, we have the option of “pleading the 5th.” This reading of the United States Constitutional 5th Amendment is, I believe, erroneous.

     Let’s examine the text and the context of the document and reframe, for the sake of the argument, the perhaps better reading, one that makes the court powerful enough to create a more substantial use of our judicial branch of government. Here is the text:

     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.

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

     I would further like to break the text at the adjoining semi-colons so that it graphically appears like this for our study:

     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.

     We have here then 4 sections:

     1. 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;

     2. nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

     3. 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;

     4. nor shall private property be taken for public use, without just compensation.

     I would further like to section out the 3rd part, having to do with “pleading the 5th.”

     3. 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;

     I would further like to take that section and hold it up to scrutiny for objectification by delineating the sub-sections within it by using the graphic filter of seeing each part as impinging on the rest, concepts relating to concepts, as in:

     3. nor shall (he) be compelled

…………….in any criminal case
…………….to be a witness
…………….against himself,
…nor (shall he) be deprived
…………….of life, liberty, or property,
……………………………………………………………….without due process of law;

     And so I would like to reread the text, taking the prepositional stance that “due process” is in fact a requisite for not only being deprived, but is also consequentially prerequisite for our being compelled to witness against ourselves on the stand, completing the circle of his testimony that he either confesses or perjures himself, in which case he is lending the need for further investigation and evidence gathering. Having entered a plea, he has already perjured himself if he is guilty. Certainly this is the stance of any interrogation, that the accused be asked to tell the truth, but that the interrogation is to proceed until either a confession is made or until substantial enough evidence is brought to bear against him. It seems odd that the Founders would simply create a loop hole that would allow the accused to simply wait out the trial to see if the investigators are in fact smart enough to catch the criminal they hold; the concept seems to be one of following the law, not forestalling the law.

     The text might then be read as follows in a more comprehensive rendition:

     3. 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;

     Or better yet:

     3. nor shall be compelled in any criminal case to be a witness against himself without due process of law, nor be deprived of life, liberty, or property, without due process of law;

     My graphics have been built around the substance that the clause, “nor be deprived of life, liberty, or property,” merely adds to the previous item, interrupting the flow of the sentence, in order to be contained in the list of two items that would require due process to be followed. Certainly, once due process is followed, the taking of life, liberty, or property is small in comparison to one’s having to tell the truth about what one has done, or at the very least making a claim or commitment concerning evidence within the trial process.

     There have been many cases where pleading the 5th has led to the accused’s being able to merely look their victims and accusers right in the eyes and silently pass by without having to be seen as the monsters they are. That this has happened is a crime in and of itself, a wrong to the system and the people as the ones correspondently under that system.

     For those rely on the 5th to skate by without owning up to their actions, who have plausible deniability on their side, they should not be allowed to remain silent; the rest of us await their honesty, and if that is not forthcoming, then they should at least be asked straightforwardly if they are guilty and of the evidence that would lead to their conviction. If due process is the end all and be all of the American judicial system, then it cannot be trumped by some lame excuse like, “I don’t want to look bad or guilty.” Perhaps I am naive about such things, not being a lawyer myself. I am no judge, and have never served on a jury. I have never served in the military. I am simply an American citizen asking the question, “Once we have followed due process, why can’t we compel those who are accused to make an accounting of themselves?” This would not force a confession, but it would force the accused to take a stand, that, yes, might later be used against him.

runningturtle87