Fifth Amendment: constitutional rights and protections

5th Amendment

The History of the 5th Amendment

Almost everyone has heard of the 5th Amendment to the United States Constitution. It is part of the Bill of Rights and most of what it says came originally from the Magna Carte in 1512. It is designed to protect a person from self-incrimination in that a person can 'respectfully decline to answer' any question that is put to him or her. What, however, is the rationale for and the history behind the 5th Amendment's right not to incriminate oneself or testify against oneself, why is it so important, and where is it going in the future?

There is a concern today that the constitutional provision of the 5th amendment, which was originally designed to preserve the liberty of the people, has actually been redesigned in such a way that it serves a different purpose. Because of that the worry spreads that it may be redefined yet again to serve another purpose, therefore rendering it much different from what it was originally intended to be. This is unfortunate and upsetting to those that feel the 5th amendment is vitally important to the lives and liberties of individuals in this country today, as the 'rules' that the Courts go by should remain strong and appropriate for everyone that becomes involved with them.

There have been numerous court cases that have dealt with this issue where the Supreme Court has given the privilege too much weight and/or has taken the words "in any criminal case" and almost removed them from the amendment by allowing the 5th amendment to be used in so many cases and so many different ways. These decisions began with Counselman v. Hitchcock (1891), moved through Quinn v. United States (1954), and Emspak v. United States (1954), and moved all the way through Bart v. United States (1954).

As the 5th amendment continued to evolve, congressional investigations were an area that it started to be used in. Unfortunately, many individuals do not agree on what constitutes a 'criminal case' and whether the 5th amendment should be able to be used in these types of cases. There are times that it seems as though the idea of the 5th amendment is being abused quite strongly by some of the individuals that are involved in the court system, and congressional investigations are certainly one of those times. An investigation is not the same as a criminal case, and allowing people to use the 5th amendment during them could be setting a dangerous precedent.

It is important, here, to take a look at a case where the 5th amendment was used as a discussion point for where it is going in the future. In the case that follows, Mapp v. Ohio (1961), the 5th and 4th amendments are tied in together and used in concert with one another, which is something that many individuals question.

The actual main issue of the case was: does the exclusionary rule discussed in the 4th amendment apply to the actions of a state? However, it will be seen where the 5th amendment ties in as well. The facts of the case are as follows:

On 23 May, 1957, three Cleveland police officers came to Mapp's home.

The officers had information that someone was hiding in the home, and this person was wanted for questioning related to a recent bombing.

There was also information to the effect that much of the equipment that had been connected with this bombing was also hidden in the home.

The officers demanded that they be allowed into the home that Miss Mapp refused on the advice of her attorney, who recommended that she not allow them entrance to her home without a search warrant.

After contacting their headquarters the officers began a surveillance of the house.

After a three-hour period in which the other officers arrived on the scene they once again requested entrance to the home.

There were several doors leading into Miss Mapp's home and at least one of these was forced open because she did not answer the door immediately.

On the arrival of Miss Mapp's attorney officers refused him entrance and did not allow him to see his client.

Although Miss Mapp lived on the second floor officers broke into a hallway which led to the basement.

The officers then produced a piece of paper that they claimed was a search warrant.

Miss Mapp took the paper from the officers and placed it in her shirt near her breast.

There was then a struggle between several officers and Miss Mapp and a piece of paper was recovered.

During this struggle Miss Mapp was handcuffed because officers stated that she was belligerent.

In handcuffing her one of the officers twisted her hand sharply and she informed him that it was painful and ask that he stop.

She was then forcibly led to the bedroom and her dresser, closets, suitcases, and chests were searched, as were personal papers and a photo album.

All of the other rooms on the second floor, including a living room, kitchen, dinettes, and child's bedroom were also then searched.

After this search the officers proceeded to the basement and located a trunk in which obscene materials were discovered.

There was no search warrant produced by the prosecution at the trial, and there was no discussion or explanation as to the failure to produce one.

Miss Mapp was convicted of possessing obscene materials.

During the discussion the Supreme Court of the state of Ohio was in doubt as to whether there was ever actually a search warrant and took note that the methods that were used to search Mapp and her belongings were offensive to most people's sense of justice. However, the conviction was ultimately upheld because it was ruled that the evidence taken from her was not taken by the use of offensive or brutal physical force.

The court held that the exclusionary rule of the 4th amendment does apply to actions taken by the state. In making their decision the court used several other cases as precedent. Most of these tied the 4th and the 5th Amendments together and discussed unreasonable search and seizure. Seizing information in the way that was done in the case of Mapp (1961) can result in self-incrimination and is considered to be similar to extortion.

However, this does not mean that the self-incrimination was protected in the same way that other types of self-incrimination are protected. Search and seizure information is not the same as speaking aloud and incriminating oneself in that way, nor is it the same as standing in front of a judge or a congressional committee. Other cases that were cited as precedent in Mapp v. Ohio (1961) found that there was a guarantee against unreasonable search and seizure and that this was indeed enforceable against individual states. The due process clause was also used to show how the right to privacy listed in the 4th amendment is enforceable against individual states. The 5th amendment issue that was used was largely ignored, however.

The vote of the court in this particular case was split 5 to 4. Of those dissenting, most of the arguments made related to the fact that using this remedy against the states was an imposition and that it overturned the case of Wolf v. Colorado, which was believed to be more sound in a constitutional sense then what was decided in this case. It was also argued that states should have their own rights and be free to make that determination as to whether they wanted to experiment with any kind of exclusionary rule. It would require police to be much more careful about gathering evidence, which could hinder law-enforcement, and would impose unnecessary evidence rulings on states.

What is the most troubling however, is the trend that this shows for the future. Obviously, the 5th amendment is very important because it does allow individuals that are involved in criminal cases to keep from deliberately incriminating themselves when they are testifying against others. Some would argue that these individuals should not get any kind of break and should not be allowed to avoid incriminating themselves, but this provision against self-incrimination has been around for a long time and will not be leaving.

Change, however, seems to be imminent and unavoidable. While change can be very good it is important to make sure that the changes are conducted in such a way as to be the most beneficial and to help the largest number of people. It is also important to make sure that the original intention of the 5th amendment is preserved, and it does not appear that this is going to remain the case.