This post is the third in our series covering the concept of due process as relates to prosecuting and defending criminal law actions. In the first two posts we addressed the concept of due process rights generally, as well as the Fourth Amendment to the U.S. Constitution in particular. In this post we will take a closer look at the Fifth Amendment.
The term “due process” as it is understood in American jurisprudence originated in the Fifth Amendment, which among other protections requires that due process of law be incorporated into certain state actions against an individual. Although it is only a single paragraph long, this amendment packs a considerable array of protections, including:
● The requirement for a grand jury indictment to precede prosecution for serious crimes. The main role of the grand jury is to determine if sufficient grounds (“probable cause”) exist to bring a criminal charge in the form of an indictment against a person. It is not the same thing as a criminal trial jury, the responsibility of which is to decide questions of evidentiary fact during the actual prosecution of the case, but rather is more of an investigatory body. In Oklahoma, generally the State files an “Information” which is basically tells the person what they are charged If the person is charged with a felony, the person is entitled to a Preliminary Hearing which is basically a probable cause hearing.
● The safeguard against double jeopardy. One potential way to abuse the judicial system would be for government prosecutors to continue to try the same person for the same crime over and over again – as either a mechanism of harassment or a crude form of “jury shopping”, going from one acquittal to the next until they finally find 12 people who will go along with them. Instead, the Fifth Amendment requires that the prosecution take its best shot one time only. If it fails to secure a conviction, it cannot retry the defendant for substantially the same offense.
● The safeguard against having to testify against oneself. The Fifth Amendment prohibits prosecutors from calling a criminal defendant to the stand to testify, which would allow it to effectively make the defendant into a witness against himself. The “right to remain silent” that police officers must inform a criminal suspect of at the time he is taken into custody is a reminder to that person of this important Fifth Amendment right, as are the other “Miranda rights” that include the right to consult with an attorney before and during questioning and to have an attorney appointed to him by a court if he cannot afford to hire one, as well as the warning that any statement he makes can and will be used against him at trial.
Note, however, that if the defendant chooses to testify on his own behalf, the Fifth Amendment does not preclude the right of the prosecution to cross-examine him. Also, if the government grants to an individual immunity from prosecution in a criminal case, then it can compel that person to testify as a witness even if the testimony would otherwise be self-incriminatory.
● The right to due process. The right to due process fundamentally means that a criminal proceeding must be undertaken fairly by an impartial judge, and allow the defendant the opportunity to fully present his defense during all phases of his involvement with the criminal justice system – from initial custodial questioning all the way through post-trial appeals.
It is essential for criminal defense attorneys to be intimately familiar with the due process protections afforded to their clients under the auspices of the Fifth Amendment to the U.S. Constitution, to ensure that their clients’ Constitutional rights are fully protected and that they receive the best possible legal defense.