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Notes from Roger Wall – The Fifth Amendment

While at first glance, one might think that the Amendment contains disparate language. 

It reads as follows: 

“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 seas 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 put twice in jeopardy of life and limb nor shall be compelled on any criminal case to be a witness against himself or be deprived of life, liberty, or property, without due process of law nor shall private property be taken for public use, without just compensation”.

Whew! That was a real month-full.

However, all three of these concepts have deep roots in English common law. In the 64 demands included in the Magna Carta, in which King John had his hand forced by his own nobles, all of these rights were included in the Magna Carta, “The Great Charter” of 1215.

Of course, King John’s nobles didn’t want their land taken unfairly, or their trees and wildlife taken without being “justly compensated.” Naturally, a jury would decide that question; a jury of peers, composed of their fellow noblemen. 

In today’s world you can’t be tried, acquitted for murder and then retried again even if new evidence becomes available to the State. Because of the “double jeopardy” doctrine encountered in the Fifth Amendment such duplication by the government is barred. 

But here’s an interesting point –– both Missouri and the Federal government have similar laws which prohibit the sale, ownership, and possession of firearms to felons. Did you know that because Missouri and the US government are considered separate sovereign jurisdictions, just as Missouri and Nebraska, etc., so in theory and in practice, an accused could have been tried and convicted once in a Missouri State Court and once in US Federal District Court, for the same charge. And it is held that this fact scenario does NOT violate the 5th Amendment’s prohibition against “double jeopardy”. 

The right to not incriminate oneself also comes out of English common law. This means that a forced confession, in and by itself, cannot not be utilized to convict someone based only on that confession. 

In 1966, the Warren Supreme Court in another landmark decision (Miranda vs. Arizona), held that once an accused was in custody, he or she had to be given certain legal warnings before their confession would be admissible in Court. 

You know – “you have a right to a lawyer and if you cannot afford one, one will be provided to you at no cost; you have the right to remain silent, and that cannot be used against you in a Court of law; but if you do say anything, that statement can be used against you.”  

However later cases have held that if one voluntarily testifies in Court, any pre-existing inconsistent statement may be utilized for cross-examination, even if taken in violation or with the absence of any Miranda warnings. One of the trick questions involved here is “when is someone “in custody” of law enforcement? 

In 1964, the Supreme Court had already laid the foundation for Miranda in Escobedo  v.  ILL.  The Court in Escobedo expanded the right to counsel which was first announced in the landmark decision of Gideon  v.  Wainwright (1963);  if a person was accused of a felony but couldn’t afford to retain legal counsel, they were entitled to appointed counsel. 

Pursuant to Escobedo, the right to counsel begins not with Court charges but rather with the initial police interrogation. 

As for taking one’s property without just compensation in one of his last legal writings, Antonin Scalia authored the opinion that the doctrine of eminent domain is where the State can only take your property for a well-intentioned public purpose, such as a park or highway access.   Just Compensation is an issue for a jury to determine as to the monetary value of the property in question. 

Note: (Dec. 13)  Well, another birthday has come and gone.  Mine is the 11th, just like Paul Uhlman except 10 years later. Happy Birthday, Paul!  Then Chris Swastosh on the 12th, and Dan Wade, the 13th. My sister in Virginia, who is an amateur astrologist, claims there is no wonder there has existed a history of acrimony in the  44th Judicial Circuit, with three headstrong Sagittarian  lawyers practicing law in the same town.

Yet, here I am well into my 70s, there was a time I seriously thought I would never live to see 30 –– so did a lot of my friends. 

A note of empathy for Joan Follis and family as my good friend and neighbor, the eccentric Fred Follis at age 78, has passed on.  Joan was an excellent teacher at Skyline School for a number of years.  God Bless. 

Now get up and go enjoy our beautiful Ozarks outdoors!