Saturday, January 14, 2012

Importance of the 4th,5th and 6th Ammendments

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The need to govern people is not a new idea. Law has been around for thousands and thousands of years. There is detailed law of how we should act and behave that is written in the most common book in the world, the Bible. The Romans were successful in that they were one of the first to codify or write down their laws to make people aware and accountable for their actions. Punishments were attached to the crime to deter bad behavior. England mimicked the Roman system to a degree; the hierarchy became corrupt and that later drove our founding fathers to boldly secede from the old world. Since our secession, and creation of the Bill of Rights the 4th, 5th, & 6th amendments have played an important role in protecting the accused.


The Romans were one of the first to institute a system that codified and applied law. They had courts which heard issues from about every aspect that could be thought of during that era. Also, Rome had one of the first records of law for the benefit of the people.


Another group of people that incorporated part of the Roman legal system were the founding fathers of this country. The Founding Fathers of this country had battled and were victorious in seceding from England. Many if not all of these people had left England for various reasons. The overriding factor was that they felt that their government had let them down. They were persecuted for what we now consider basic fundamental beliefs and rights. With the knowledge possessed by these great men they had the blue print of the form of government that was so prevalent in the old world. They created a republic “for the people by the people”. It is true they incorporated what “they felt” was the most important pieces they had in the old world, and then continued to build on them, hence the Constitution of the United States was born.


The abuse of power in the old world left such a bad taste in the mouths of the framers’ that they felt a strong need to create a list of fundamental rights. Theses were attached to the constitution and commonly known as the Bill Of Rights. They protect the rights of the individual. How the framers knew that the constitution should be a living document is unknown, but the reality that it is a living document is proof of the increasing need for change and interpretation to continue. This necessary change and interpretation must and will continue in years to come to ensure the individual rights and freedoms we now enjoy.


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The Bill of Rights is something that is taught in all schools around the nation. Yet the importance of this bill is not completely understood or appreciated. Every amendment is important and cannot be overlooked, but in today’s society from a criminal aspect, the most sacred of sacred are the 4th, 5th, and 6th amendments. They deal with rights of the accused and the protection that is afforded them.


The forth amendment states


“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


The novel we read in class, The Trial, by Franz Kafka, painted a life-like picture of how our society would be if we did not have a bill of rights. A bill of rights only exists if it is truly believed and enforced by its citizens. Joseph K, time after time was a victim of a tyrannical oppressive government. I know that the legal system now is not as oppressive as it was 50 years ago. The people that run the system are still human and capable of making errors. In Joseph K’s situation the facts are so egregious that no matter how you interpret what is going on; the book is very oppressive. For instance, many times he asked to know what he was being charged with, even those in power would not tell him anything. What kind of government that claims so many fundamental freedoms, would keep news of his supposed “crime” undisclosed to the suspect? What kind of mental torture and anguish would this cause the accused? Need I go on? The need for protection against such entities is absolutely necessary.


Since the introduction of the 4th amendment, the refinement of the definition has been an ongoing process that has taken the Supreme Court nearly 50 years. Famous cases such as, Mapp v. Ohio, helped set precedence in tainted searches by establishing the exclusionary rule. This exclusionary rule states that when a search is not done in accordance to the constitution, the supreme law of the land, the court must throw out that tainted evidence in question. To include tainted evidence would make law useless if the process is unfair. The 4th amendment allowed the accused protection from a system that can be an overwhelming force. For example in Kafka’s book, Joseph K rented a room in a boarding house that had a common area for all the residing tenants. When the unidentified authorities searched K’s apartment they had no warrant, no probable cause and did not support the constitution of their land. Had this scenario taken place today, with today’s strict enforcement of rights the courts would have thrown out any and all evidence that might be incriminating. In my opinion the whole book is a travesty at a minimum. There were so many violations of the 4th amendment in the first chapter it was sickening.


The expectation of privacy here in the Untied States is unparalleled to that of any other country, yet it is not an absolute right guaranteed by the constitution. In the famous Katz v. United States, the issue set before the high court was Does the 4th amendment protection apply to intangible items? The court said that the amendment only applies to people and not places. Those things or items in plain public view are not protected. Many times in Kafka’s book, Joseph K had his privacy infringed on or invaded upon by the warders. He was free to go but in reality the warders knew exactly where he was. Joseph K knew that those in power were watching him. Is this not invasion of privacy? His warders told him that they would like to take care of his fine clothing, should he be incarcerated. Who gives them the right to take away another persons belongings with out compensation? That is a blatant violation of the 5th amendment.


The 5th amendment is anther holy of holies in the criminal system. It states


“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 subjected for the same offense to be twice put in jeopardy of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.


The 5th amendment violation is probably the most prevalent in Kafka’s story. From the opening sentence which starts out, by describing the beautiful day when he was arrested. Then it goes on to say that while trying to see what charges he was being arrested for he found no answers. They could not tell him because they had no clue. Are we supposed to act like cows, being driven by electric cattle prods? Being acted upon rather than acting for ourselves? Joseph K was definitely charged with some kind of capital punishment crime. What the charge was, we will never know, that is beside the point. The 5th amendment protects the accused from damning themselves by giving self-incriminating statements or any damaging evidence.


The high courts in this land have decided in Massiah v. United States, “that a defendants own incriminating statements, obtained by a federal agent after being indicted, can not constitutionally be used by prosecution as evidence against him at trial”.


The book was about the trial of Joseph K; in those pages a trial was held. He was not charged with anything but he was interrogated, prosecuted, convicted and was eventually killed for his crime. He did not know what had even gone on. The whole process happened in such an informal manner, that Herr. K never really had a chance to protect himself from the destructive coercive government.


In the United States each year there are thousands of accused persons who exercise their right to “plead the 5th”. I believe that we take for granted the power that is in the 5th amendment. The legal system is like a large-scale chess game, there are so many options to pursue and play the game. This strategy has an art; the expert artist or technician is the ever-popular attorney.


Probably the single most important or most famous case that has happened in the last 50 years is the infamous Miranda v. Arizona. Miranda set a new standard in questioning suspects throughout the whole United States. In times previous to Miranda the police were able to use whatever means necessary to retrieve “voluntary confessions”; the suspect new what he was being arrested for but often lacked the knowledge that he had rights to protect himself from an onslaught of damaging questions.


This pattern is also easily visible in Kafka’s work. Custodial interrogation occurred throughout the whole book. I like the part in the beginning where he found out he was being arrested, and when he asked if he could call his lawyer friend, the inspector said “but I don’t see what sense there would be in that, unless you have some private business of your own to consult him about”. Joseph K later retains an “ancient” who had political ties with the acting magistrates but foolishly fires him due to lack of action on his case.


The power of the 5th amendment is awesome for someone who has been accused. It puts a large burden on the state to be sure that the process of prosecution and evidence gathering is fair. The Highest court in the U. S. ruled in Miranda v. Arizona that prosecution may not use statements, inculpatory or exculpatory stemming from a custodial interrogation. The court also held that each suspect must be warned of his constitutional rights and protection under the law. Now law enforcement officers “mirandize” suspects to ensure that due process is not violated, and that the prosecution will not have to lose it’s case due to a technicality in the process.


Representation in this country has never really been an issue. The U.S. has millions of lawyers working in the private as well as public sectors. The American dream is to make money and live off the fat of the land. Many lawyers are stained with a reputation for being bottom feeders, being opportunistic money hungry selfish motivated s.o.b’s. This stigma puts a dark cloud of suspicion on many hard working attorneys. The need for representation in this country is so important that almost every aspect of work is somehow related to laws. There are laws for minors working, traffic law, business law, corporate law, environmental law, you name it there is a law or body that administers and interprets the law to benefit those who are willing to pay to settle disputes. The 6th amendment states


“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury to the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation to confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense”.


The more and more time we live on this continent, there will be people that will continue to interpret the constitution and it’s amendments to fit the need of a society at specific periods of time. For instance, when the framers created this living document, they said that all men were created equal and would have citizenship status. In the famous Dred Scott case, the Supreme Court said “separate, but equal” over a hundred years later the Supreme Court said, “separate, but not equal”. Today the necessity for counsel in criminal cases is virtually mandatory. That wasn’t always the case. Prior to Gideon v. Wainwright the right to counsel was not really enforced. It was a right but it did not apply to all cases. In Gideon, the courts held that the 6th amendment required the appointment of counsel in all felony cases. Now there are those that refuse the right to counsel, but that right can be waived if the accused does it knowingly, intelligently, and voluntarily. Since Gideon, other cases have clarified the need for court appointed counsel in cases such as Argersinger v. Hamlin, Scott v. Illinois, and Douglas v. California.


In the instance of Herr. K, it was a devastating blow to his defense and ultimately what cost him his life. I believe that had he not fired his lawyer, he may have gotten an ostensible acquittal. That is not true freedom but it is definitely better than the alternative.


The United States is moving into uncharted territory; forcing the judicial system to further interpret the constitution to protect us from our governmental big brother. The day we stop appreciating our rights is the day we become like Joseph K, irrational and as a lamb for the slaughter.





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