GOP 101: Pleading the Fifth

Amendment V of the United States Constitution

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.

The Fifth Amendment is an extremely important piece of the Constitution. It covers guidelines for grand juries, double jeopardy, self-incrimination, and due process. It also allows for the military to process any criminal behavior through the military system, rather than through a regular court of law.

Grand Jury

A grand jury is made up of American citizens, usually 12-23, who sit on the panel for a specific amount time. The grand jury’s function is to decide if there is probable cause for a trail; this jury does not decide guilt or sentences. The prosecutor presents evidence of the case, and the jury decides if a trial is necessary. If a person is testifying at a grand jury hearing, their attorney is not allowed to be present.

Double Jeopardy

The Fifth Amendment also protects citizens against being tried for the same offense twice if there is an acquittal or conviction. For example, a person charged with manslaughter of another person cannot be tried for the same offense twice, but can be charged with another offense, say possession of narcotics. However, an individual can be charged again from another jurisdiction or court (ex. state vs. federal) without violating the double jeopardy clause.

Due Process

The Fifth Amendment protects an individual from having to testify against him or herself. We call this Pleading the Fifth. This protection is extremely important because it gives a person the ability to remain silent, rather than incriminate him or herself unwillingly.

Imminent Domain

This provision protects Americans from the government confiscating their property without just compensation. But it goes further in that the government cannot just knock on your door and say they need your property. One of the most controversial rulings on Imminent Domain by the Supreme Court is Kelo vs. New London. In this ruling, the determination that economic development gave reason for a local government to take possession of property was justified. Since then, many states and local jurisdictions have tightened laws to protect against this ruling.

This is a brief overview of the Fifth Amendment. It is important today because we recently witnessed Lois Lerner, the head of the tax-exempt organizations division of the IRS, plead the fifth when testifying before Congress during hearings on why the IRS targeted conservative groups from 2010 to 2012. Ms. Lerner gave a brief opening statement of her innocence. Then, when asked a question by Committee Chairman Darrell Issa (R-Calif.), she refused to answer based on her Fifth Amendment rights. The debate of whether or not she waived her Fifth Amendment right by making an opening statement claiming innocence and broadly speaking to the situation is now at the center of attention.

Paul Rothstein, a law professor at Georgetown University, in an interview with Politico stated, ““In that situation, when you voluntarily open up the subject they want to inquire in to, and it’s all in the same proceeding, that does result in a court criminal case … that would be a waiver.”

There will be great debates on the Fifth Amendment by political pundits over the next couple of weeks. It will be interesting to see how this plays out, and if Ms. Lerner is recalled to answer questions before Congress in the near future.

Read more: http://www.politico.com/story/2013/05/darrell-issa-irs-lois-lerner-91755_Page2.html#ixzz2UD5Z60HJ

By SB

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