Part of Chapter Twelve

The Fifth and Sixth Amendments

Statements of the Accused

Discussion of the 5th and 6th Amendments are combined because I think the Court’s decisions regarding these provisions have had the most detrimental effect on society’s ability to protect itself from those who commit crime. The Court has determined what kind of a process it mandates, thinking it will accomplish what it calls justice, without allowing the public to rule itself as the Constitution requires. Could there be a more tyrannical assumption of power than for nine unelected individuals (sometimes only five) to micromanage how suspects are to be treated by law enforcement agents created to enforce laws to protect citizens and society as a whole?

The 5th Amendment

The 5th Amendment provision concerning statements by an accused states:

… nor shall any person … be compelled in any criminal case to be a witness against himself ….

The 5th Amendment resulted from the methods of questioning in the Courts of Star Chamber and High Commission (because there were stars on the ceiling) in England - British courts of equity that operated from 1487-1641. These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial method, meaning that prosecutors did not bear the burden of proving a case, but that sufficient “proof” came from browbeating confessions out of the accused. Under the inquisitorial method the person could be placed under oath and forced to answer questions. As a result, the 5th Amendment provision was established by our founders to assure the procedure would not be used by the federal government in the United States against people who were suspects.

Historically, the legal protection against compelled self-incrimination was directly related to the question of torture for extracting information and confessions.

The legal shift away from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th century in England. Anyone refusing to take the oath ex officio Mero (confessions or swearing of innocence, usually before hearing any charges) was considered guilty. Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly used to compel “cooperation.” Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburn refused to take the oath in 1637. His case and his call for freeborn “ rights” were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell’s revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levelers. The Levelers presented The Humble Petition of Many Thousands to Parliament in 1647 with 13 demands, third of which was the right against self-incrimination in criminal cases. These protections were brought to America by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights. 184

This, obviously, is where the right “not to be forced to testify against yourself” came from - the right to “take the fifth”. It is clear this provision was meant to protect anyone charged with a crime and on trial from being called to testify “as a witness” if they chose to remain silent. The provision makes sense because in the criminal process, under the accusatorial method, when a person is put on trial the prosecution must prove the case “beyond a reasonable doubt”. The process has protections built in so someone cannot be “railroaded” by the so-called “system” as occurs in some countries. Even though law enforcement personnel think a person is guilty of a crime, either a grand jury or a prosecution official must make a decision to file charges in order for the person to be put on trial.

You will notice the language of the 5th Amendment does not indicate one suspected of a crime cannot be questioned before a trial. The 6th Amendment does not say the suspect must be told he or she is entitled to an attorney prior to any questioning. The 6th Amendment does not say that the attorney will be provided free. The 5th Amendment does not say that before any questioning aThe Fifth and Sixth Amendments suspect must be told he or she has those rights before answering any questions and that those rights must be waived.

In other words, neither the 5th or 6th Amendments provisions do not hinder law enforcement authorities in any way from doing their job in trying to protect the safety of the public by apprehending those who choose to engage in suspected criminal behavior….