 | ||
 | | |
 | ||
| | |
 | ||
| | |
Stones & Bones: civil rights, history / volume 9 number 7, July 2007 LIVE FREE OR DIE, part V. 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 of 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 draftsmen of the United States Constitution borrowed heavily against the 1689 British declaration: An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, also known as the English Bill of Rights. Their ideological base is obviously similar but the Framers of the US Constitution took pains in tooling ours to specify and protect certain personal freedoms that had been too easily infringed upon by the Crown. Guarding the American public from subjective law and unfair federal manipulation in the court was specifically important to the authors of the Constitution, as their Puritan roots had suffered under unchecked power. With five clauses, the Fifth Amendment is certainly the longest amendment in the Bill of Rights, and it details terms touching on both civil and criminal law. In West’s Encyclopedia of American Law (2nd edition) the five clauses of the Fifth Amendment are broken down into these layman’s terms: “(1) the right to be indicted by an impartial grand jury before being tried for a federal criminal offence, (2) the right to be free from multiple prosecutions or punishments for a single criminal offence, (3) the right to remain silent when prosecuted for a criminal offence, (4) the right to have personal liberties protected by due process of law, and (5) the right to receive just compensation when the government takes private property for public use.” The first clause of the Fifth Amendment grants civilians the right to a grand jury. (The sense of the term grand is taken from the French word for “large.”) The practice stems from twelfth-century England during the rein of Henry II, and was the first form of jury trial in England. Then called a “presenting jury,” the obligatory procedure was part of the Assize of Clarendon statute of 1166. This statue was the beginning of England’s conversion from judicium dei (trial by God) to the more humane evidentiary system we enjoy today. The practice of using divine intervention as proof of innocence can be traced back to Mesopotamia and the Code of Hammurabi but even in England trial by battle was not repealed until 1819. Grand juries today have no less than sixteen members and no more than twenty-three, are comprised of laymen, and held in private. Being conducted by the prosecution, their duty is to establish whether sufficient evidence exists against the accused to warrant legal action. If a case is found to be valid and holding proper evidence, the grand jury enters their formal charge as an indictment. A grand jury does not judge the accused of guilt or innocence, only if probable cause exists. Conversely, the grand jury clause does not apply to members of the armed forces (including militia), as they may be tried without indictment, in war or peace, for crimes committed. Under the Double Jeopardy Clause, once a defendant has been acquitted or convicted of their accused crime, they may not be re-tried for that same offence again. Massachusetts was the first American colony to provide this legal protection, but the law arose from the Roman courts and can be considered basic jurisprudence. The Massachusetts law stated, “No man shall be twise [sic] sentenced by Civil Justice for one and the same Crime, Offence, or Trespasse.” However, at the 1791 ratification of the Bill of Rights, Massachusetts was one of only two colonial constitutions that held protections against double jeopardy trial. The specificity of the clause was especially important because, in England, trial findings were frequently disregarded by the Crown if justice was not to the royal liking. This practice sat fresh in the minds of the Framers, and they drafted the clause to include protection from wrongful convictions doggedly pursued by government and from the social, fiscal, and personal suffering brought on by legal battle against endless prosecution. This clause does not apply to civil cases brought by private parties. Since there are two branches of the United States legal system, civil (awarding monetary compensation for grievances) and criminal (administering punishments for offences), a defendant may be tried in both courts for the same accusation without breaching the amendment. A fine example of this was the seemingly endless, eight-month, cake-and-circus trial of O.J. “the Juice” Simpson in 1995. He was acquitted of double homicide in the criminal trial but the 1997 civil case found him guilty and held him accountable for $33,500,000 in damages to the families of Nicole Brown Simpson and Ronald Goldman.
| ||
| | |
