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You No Longer Have A Right To Remain Silent…

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Is it just me, or has the speed of our decline from what was to what will be increased? Today The supreme court eviscerated the Fifth amendment officially. Anyone who has not been living in a cave knows informally this has been the case since sweeping legislation post 9/11 attacks. Over the last decade we have witnessed the decline of personal liberty and the rise of the police state infrastructure. Their isn’t any conspiracy to it, and any person born before the mid 90’s surely can see it themself.

Today though the Supreme Court decided that you no longer have a right to remain silent. Why is this important you ask? First let’s make sure everyone understands what all the Fifth amendment covers.

Taken Verbatim from The Cornell University Law School – Legal Information Institute

 

FIFTH AMENDMENT: AN OVERVIEW

The Fifth Amendment of the U.S. Constitution provides, “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.”

The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Process Clause from the Magna Carta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: grand juries for capital crimes, a prohibition on double jeopardy, a prohibition against required self-incrimination, a guarantee that all criminal defendants will have a fair trial, and a promise that the government will not seize private property without paying market value. While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has interpreted the Fifth Amendment’s provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment.

GRAND JURIES

Grand juries are a holdover from hundreds of years ago, originating during Britain’s early history. Deeply-rooted in the Anglo-American tradition, the grand jury originally served to protect the accused from overly-zealous prosecutions by the English monarchy.

Congressional statutes outline the means by which a grand jury shall be impaneled. Ordinarily, the grand jurors are selected from the pool of prospective jurors who potentially could serve on a given day in any juror capacity. At common-law, a grand jury consists of between 12 and 23 members. Because the Grand jury was derived from the common-law, courts use the common-law as a means of interpreting the Grand Jury Clause. While state legislatures may set the statutory number of grand jurors anywhere within the common-law requirement of 12 to 23, statutes setting the number outside of this range violate the Fifth Amendment. Federal law has set the federal grand jury number as falling between 16 and 23.

A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct “fishing expeditions” or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may make a presentment. During a presentment the grand jury informs the court that they have a reasonable suspicion that the suspect committed a crime.

DOUBLE JEOPARDY

The Double Jeopardy Clause aims to protect against the harassment of an individual through successive prosecutions of the same alleged act, to ensure the significance of an acquittal, and to prevent the state from putting the defendant through the emotional, psychological, physical, and financial troubles that would accompany multiple trials for the same alleged offense. Courts have interpreted the Double Jeopardy Clause as accomplishing these goals by providing the following three distinct rights: a guarantee that a defendant will not face a second prosecution after an acquittal, a guarantee that a defendant will not face a second prosecution after a conviction, and a guarantee that a defendant will not receive multiple punishments for the same offense. Courts, however, have not interpreted the Double Jeopardy Clause as either prohibiting the state from seeking review of a sentence or restricting a sentence’s length on rehearing after a defendant’s successful appeal.

Jeopardy refers to the danger of conviction. Thus, jeopardy does not attach unless a risk of the determination of guilt exists. If some event or circumstance prompts the trial court to declare a mistrial, jeopardy has not attached if the mistrial only results in minimal delay and the government does not receive added opportunity to strengthen its case.

SELF-INCRIMINATION

The Fifth Amendment protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may “plead the Fifth” and not answer if the witness believes answering the question may be self-incriminatory.

In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. 384 U.S. 436 (1966). Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights. Known as Miranda rights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violative of the Fifth Amendment’s protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of the Miranda rights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement.

After Congress passed the Crime Control and Safe Streets Act, some felt that the statute by implication overruled the requirements of Miranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt thatMiranda represented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. In Dickerson v. United States the U.S. Supreme Court rejected this arguments and held that the Warren Court had directly derived Miranda from the Fifth Amendment.

DUE PROCESS CLAUSE

The guarantee of due process for all citizens requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive a person of life, liberty, or property. Due process essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding. While the Fifth Amendment only applies to the federal government, the identical text in the Fourteenth Amendment explicitly applies this due process requirement to the states as well.

Courts have come to recognize that two aspects of due process exist: procedural due process and substantive due process. Procedural due process aims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensures that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the 20th century as protecting those right so fundamental as to be “implicit in the concept of ordered liberty.”

JUST COMPENSATION CLAUSE

While the federal government has a constitutional right to “take” private property for public use, the Fifth Amendment’s Just Compensation Clause requires the government to pay just compensation, interpreted as market value, to the owner of the property. The U.S. Supreme Court has defined fair market value as the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property’s good and bad attributes, would pay. The government does not have to pay a property owner’s attorney’s fees, however, unless a statute so provides.

In Kelo v. City of New London, the U.S. Supreme Court rendered a controversial opinion in which they held that a city could constitutionally seize private property for private commercial development. 545 U.S. 469 (2005).

That is quite a read, and I am sure that most of our readers and listeners will already be familiar with our Bill Of Rights… That being said let’s see what the ruling today changes.

Essentially in a nut shell the Supreme Court is now placating to the powers that be by endorsing the mentality of “if you didn’t do anything wrong you have nothing to hide”. Privacy is dead, and that is a dead horse I won’t beat right now. Miranda v. Arizona extended the right to remain silent from not just post charges and indictment, but to the investigation and testification phases.  What is the first rule? NEVER TALK TO LAW ENFORCEMENT. YOU HAVE A RIGHT TO REMAIN SILENT. Always use a lawyer don’t ever try to prove your own innocence their job is to find something you are suspected of doing and bring you up on charges. This does not mean being a raving asshole and quoting the constitution to your local law enforcement. Instead be respectful and give no reason to be under suspicion. That being said we are all versed in what to do should that not go as it should. “Am I being detailed? Am I under arrest?” We will probably dedicate an entire article to this in the near future given the circumstances.

Basically in Salinas v. Texas two brothers were shot their home in Houston Texas. Conveniently their were not witnesses just some shotgun shell casings at the crime scene. Their was a party at the house in question with one of the Salina’s brothers attended. The police obviously invited him down to the station and had “polite conversation” for an hour. He was not arrested or read his Miranda warning. The brother agreed to give the police his shotgun for testing against the shells and any other evidence they may have had. At this point the law enforcement officers asked if the gun would match the shells  from the scene of the murder. The law enforcement officers have stated at this point that Salinas, “stopped talking, shuffled his feet and bit his lip and started to tighten up”.

Later at trial Salinas did not testify, but the DA prosecutor described the previous uncomfortable reaction to the police’s questions from earlier about the gun. Salinas argued this violated his Fifth Amendment rights. He had remained silent, and the Supreme Court of the land has made crystal clear that prosecuting district attorney’s can not bring up a defendant’s refusal to answer any questions at any point.

Fast forward: Justice Samuel Alito slyly stated that Salinas was “free to leave” and did not assert his right to remain silent.

WAIT WHAT? He was silent by all accounts?!?! But since he didn’t affirmatively invoke his right it didn’t count? Two other justices should be counted this day as well for agreeing with the aforementioned… justice Clarence Thomas and justice Antonin Scalia joined the “judgment albeit for supposed different reasons… They simply state their reason being that he had no rights at all to invoke before his arrest. BY THE WAY they also object to Miranda itself…

So from this point forward I’d add I Have the right to remain silent, I am affirmatively asserting my right to not self incriminate by remaining silent until a lawyer is provided. Otherwise you may be this “justice” systems next victim.

We wont even go into all of the wonderful legislation that allows our justice system to bypass all forms of the constitution and illegal secret detainment with secret courts and judges with sealed documentation.

braveheartradio – who has written posts on BraveHeartRadio.Net.


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