Amendment 5
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 offence 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. (X)
What does this mean?
Well, let's take it into parts.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]
This means that a person cannot be tried in court unless the Grand Jury sees that there is enough evidence to put the person on trial.
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What is a Grand Jury?
It is comprised of 16-23 citizens and it is then decided by them if there is enough evidence to put the person on trial.
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[E]xcept in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger[.]
If a person in the Armed Forces commits a crime during war & national emergency then the above [ evidence supplied & decision made by a Grand Jury to place said person on trial] does not apply; they can be put on trial without the decision coming from the Grand Jury.
(In terms of Armed Forces - The Uniform Code of Military Justice is used)
[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]
A person cannot be be put on trial for the same crime twice.
To give some historical context - When America was property of Great Britain, The Crown could order the same person to put on trial again just because The Crown didn't like that person & was not satisfied with the outcome.
However, there are 2 courts in the United States: The Civil Court & The Criminal Court. If a person gets put on trial in The Criminal Court and is deemed innocent they cannot be put on trial again in the Criminal Court BUT they can be put on trial for the same crime in The Civil Court. (X)
[N]or shall be compelled in any criminal case to be a witness against himself[.]
This prevents the person accused of a crime from testifying against themselves. So, the decision is left to the government to decide if a person is innocent or guilty based on factual evidence. (X) (X)
This is where the phrase - "Innocent until proven guilty." comes from.
1. Right to remain silent.
2. Have the right to an attorney present during questioning.
3. The right to have a government-appointed attorney if the suspect cannot afford one.
If law enforcement fails to inform the person in question of their rights then any statements from said person violates the person's Fifth Amendment rights.
Why?
Because the person cannot testify against themselves.
[N]or be deprived of life, liberty, or property, without due process of law[.]
We'll start with what exactly is 'Due Process of Law':
Essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding.
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SPEEDY TRANSLATION: Everyone is treated equally & fairly regardless of who the person is - the law of the land must be followed (X).
As stated in Due Process Clause:
The due process clause also demands that the judge be impartial. If the judge is familiar with any party involved in the proceeding, they are required to recuse themselves.
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Basically, to ensure a person is given a fair chance at court, if the judge knows the person or anyone involved in the case they have to excuse themselves from the case.
To sum up this specific point I'd suggest taking a look here: It prohibits the government from taking away individual's constitutional rights to life, liberty, and property.
Below is a screenshot of the definition of Due Process that was helpful for me to understand:
Basically: there are procedures the Federal Government must follow
UPDATE 18 MARCH 2017
There are 2 types of Due Process:
Procedural Due Process
This basically requires the Federal Government to follow certain procedures in criminal & civil manners.
Substantive Due Process
This ensures protection to an individuals rights to privacy & security.
REALLY GENERAL SPEEDY TRANSLATION OF DUE PROCESS:
Fair Procedures
END UPDATE FROM 18 MARCH 2017
- Based on research, there is also a reference to Due Process in Amendment 14 -
[N]or shall private property be taken for public use, without just compensation[.]
If the government takes property to use for the public, the government must pay the owner the amount that it is worth.
Translation: The Federal Government cannot just come to your home & say here's five dollars for your house, we're creating a public road through here.
To summarize:
‣ A Grand Jury is needed to determine if there is enough factual evidence to put a person on trial.
‣ If someone in the Armed Forces commits a crime during war or national emergency, the Grand Jury is not needed for them to be put on trial - they have their own thing called The Uniform Code of Military Justice.
‣ A person cannot be put on trial for the same crime twice.
‣ The suspect of a crime cannot testify against themselves. The government determines if a person is innocent or guilty based on evidence.
‣ Law Enforcement must inform the suspect in custody of their Miranda Rights.
‣ Government must follow procedures (Due Process) & ensure the individual is treated fairly.
‣ The Federal Government can take your property for public use BUT must give you the amount that it is worth as compensation.
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In what ways has President Trump & his administration done something that pertains to this Amendment:
UPDATE 15 MARCH 2017
1.
This is an updated version of the Muslim Ban signed on March 6, 2017 which barres people from 6 predominantly Muslim countries: Iran, Libya, Somalia, Syria, Sudan, Yemen.
How does this pertain to the 5th Amendment?
As mentioned by The United States District Court of Hawai'i:
[It is a] [v]iolation of the equal protection guarantees of the Fifth Amendment's Due Process Clause on the basis of religion, national origin, nationality, or alienage.
END OF 15 MARCH 2017 UPDATE
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UPDATE 25 APRIL 2017
2.
Trump's latest Executive Order signed on 25 January 2017- "Enhancing Public Safety in the Interior of the United States
The order was meant to cut Federal Funding to States that would not assist/cooperate with immigration authorities. In California, a judge blocked this Executive Order.
It violates this Amendment in two ways:
One:
As mentioned by the United States District Court Northern District California:
A law is unconstitutionally vague and void under the Fifth Amendment if it fails to make clear what conduct it prohibits and if it fails to lay out standards of enforcement.
The Executive Order does not make clear what conduct might subject a state or local jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to determining how to modify their conduct, if at all, to avoid the Order's penalties.
SPEEDY TRANSLATION: How can you hold someone (a State in this case) to a standard without giving them the rules of the do's and don'ts'.
Two:
As mentioned by the United States District Court Northern District California:
The Counties assert that the Executive Order fails to provide them with Procedural Due Process in violation of the Fifth Amendment.
The order was meant to cut Federal Funding to States that would not assist/cooperate with immigration authorities. In California, a judge blocked this Executive Order.
It violates this Amendment in two ways:
One:
As mentioned by the United States District Court Northern District California:
A law is unconstitutionally vague and void under the Fifth Amendment if it fails to make clear what conduct it prohibits and if it fails to lay out standards of enforcement.
The Executive Order does not make clear what conduct might subject a state or local jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to determining how to modify their conduct, if at all, to avoid the Order's penalties.
SPEEDY TRANSLATION: How can you hold someone (a State in this case) to a standard without giving them the rules of the do's and don'ts'.
Two:
As mentioned by the United States District Court Northern District California:
The Counties assert that the Executive Order fails to provide them with Procedural Due Process in violation of the Fifth Amendment.
As mentioned above - Procedural Due Process requires the Federal Government to follow certain procedures in criminal and civil manners.
As mentioned by the United States District Court Northern District California:
A state or local government has a legitimate claim of entitlement to congressionally appropriated funds.
SPEEDY TRANSLATION: The Federal Government can't sweep in like the Grinch & not provide the States with Procedural Due Process.
There should be procedures to follow - however the Executive Order does not provide a process for:
‣ Notifying the State about determination of cutting funding.
‣ And also, there is no process for the State to present its point of view & be heard.
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END OF 25 APRIL 2017 UPDATE
-if needed this will be updated from time to time.-
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This is a series that is ongoing - Every Wednesday [ #WednesdayAmendment ] there will be an Amendment Explanation paired with what President Trump & his administration have done that pertains to the Amendment discussed.
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Hi.
DeleteI hope the description of this amendment was thorough and easy to understand and was not as much of a jargon as was often the case when I was searching & understanding it myself and essentially translating it from an enigma to something easily understood!