On 04/26/2011 11:24 PM, Steven Morrey wrote: > > To answer that look at the origins of the 5th amendment and it's actual > wording. > > "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." > > Not to get political, but notice that it does say "person" not > "citizen", thats why it's called a human right and not just an > american right, but gitmo is a subject for another debate. > > The key phrase here is "nor shall be compelled in any criminal case to > be a witness against himself" > > Compelled in any criminal case to be a witness against himself. > > This stems from the old tactic of torturing a confession out of > someone. The point being you can't make someone divulge the contents > of his heart and mind. The contents of his papers and effects however > are subject to search and seizure given a specific warrant. > > In a murder trial handing over blood soaked evidence would be covered > under evidentiary procedures, not constitutional procedures. Where it > gets hairy (pun intended) is when you compel a suspect to hand over a > DNA sample via the use of force. The jury is still out on that one. > My opinion is that DNA should not be forcefully collected from > convicts and should be removed from any and all databases should the > convict be subsequently exonerated. On the other hand I have also > been reading a lot on the reliability of DNA evidence or lack thereof, > and the thought of it's use as the sole piece of evidence to convict > someone and lock them away for life or most of their life, is rather > unsettling. On the other hand the lack of laws allowing convicts to > voluntarily submit to DNA testing in an effort to exonerate themselves > is also unsettling and seems like it violates something that I can't > quite put my finger on. > > Sincerely, > Steve > The really troubling part for me is not so much how they arrived at that judgement, but that they arrived at that judgement at all:
In /Dickerson v. United States/ 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed.2d 405 (2000), the U.S. Supreme Court concluded that the /Miranda/ decision was based on Fifth Amendment principles and therefore that it could not be over-turned legislatively. Congressional anger at the Miranda decision had led to the passage in 1968 of a law, 18 U.S.C.A. ยง 3501, that had restored voluntariness as the test for admitting confessions in federal court. However, the United States department of justice, under attorneys general of both major political parties, has refused to enforce the provision, believing the law to be unconstitutional. The law lay dormant until the Fourth Circuit Court of Appeals ruled in 1999 that Congress had the constitutional authority to pass the law. Chief Justice william rehnquist, a frequent critic of the /Miranda/ decision, joined the majority in rejecting the Fourth Circuit interpretation. Although members of the Court might not agree with the reasoning and the rule of /Miranda/, Rehnquist acknowledged the essential place that /Miranda/ has in U.S. law and society. He pointed out the importance that the judicial system places on Stare Decisis <http://legal-dictionary.thefreedictionary.com/Stare+Decisis>, a concept that counsels courts to honor judicial precedents to ensure stability and predictability in decision-making. A court should only overrule its case precedents if there is, in Rehnquist's words, "special justification." The Court in Dickerson concluded there were no special justifications. http://legal-dictionary.thefreedictionary.com/fifth+amendment --Henry /* PLUG: http://plug.org, #utah on irc.freenode.net Unsubscribe: http://plug.org/mailman/options/plug Don't fear the penguin. */
