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Liberty or Laws? – Fifth Amendment

If the intent were to obtain incriminating evidence prior to the act of custody, it would be as unacceptable to the Framers as it would be after one was taken into custody.

Liberty or Laws? – Fifth Amendment

Liberty or Laws? – Fifth Amendment

“nor shall be compelled in any criminal case to be a witness against himself”

by Gary Hunt
June 6, 2016

The principle element in this discussion is the Fifth Amendment to the Constitution:

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 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.

The provision that is of concern is, “No person… shall be compelled in any criminal case to be a witness against himself.”  And, we must begin by understanding that, as the Preamble to the Bill of Rights says,

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Clearly, the Fifth Amendment, then, is a prohibition against the government, “to prevent misconstruction or abuse of [the federal government’s] powers

To understand the role of the Supreme Court, at least for nearly the past century, we need to review what Justice Brandeis explained in Ashwander v. Tennessee Valley Authority (1936), in which he explained the “rules” that the Court had adopted to avoid “passing upon a large part of all constitutional questions pressed upon it for decision.”  (See About Ashwander v. TVA)

The pertinent rules from that decision are:

2.  The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it… ‘It is not the habit of the court to decide questions of a constitutional nature unless necessary to a decision of the case

3.  The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied….

4.  The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

7.  ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided

To summarize the pertinent rules:

  • The Court will not decide on the constitutionality, unless absolutely necessary – rules 2 & 4.
  • When the Court does rule on the constitutionality, that ruling will be as narrow as possible – rule 3.
  • The Court will, whenever possible, rule on statutory construction to avoid ruling on constitutionality – rule 7.

Now with this in mind, they won’t rule on the constitutionality, unless necessary, and if they do rule on constitutionality, they will make that ruling as narrow as possible.  We will look at a Supreme Court decision that we are all familiar with, Miranda v. Arizona (1966).

In Miranda, which requires that law enforcement officers notice the person being investigated for possible criminal activity be advised that he have the right to refuse to talk and to have an attorney present.  However, in keeping with Ashwander rule #7, the ruling deals only with those in custody.

So, the question arises, why would one’s right only apply to when one is in custody (they narrow ruling)?  If one the right to not incriminate oneself, “to be a witness against himself”, would that not apply once suspicion was raised against him, or does it only apply after he is in custody?.  Wouldn’t it really be a prohibition against government, both before and after one was in custody?

If a law enforcement office, in uniform or plain clothes, with the intent of trying to elicit a confession, or information that would incriminate someone, while in custody, was prohibited by the Fourth Amendment and confirmed by the Supreme Court, then why would we assume that that prohibition did not also extend to when one was under suspicion?  After all, when one is under suspicion, the law enforcers are just a small step away from putting someone in custody.  Why would that prohibition only come into play when the actual act of custody was implemented?  Is it possible that those who ratified the Amendment intended for that form of chicanery to be acceptable?  Or, was their intention to prohibit divisive means of acquiring incriminating evidence in apparent conflict with the wording of the Amendment?

Now, we need to visit a little historical background to carry the ramifications of the intent into an understanding of changes in practices between the Eighteenth Century and modern law enforcement, to put a proper perspective on how the intent of the Amendment is circumvented.

In the Eighteenth Century, spying, intelligence gathering, and other such undercover work was carried out in higher levels of government, only.  The consequence for being caught practicing such infamy was death.  Consequently, those willing to lay their lives on the line for the greater cause of national politics carried out such work.  The idea of spying on their own citizens was out of the question.  After all, it is the job of any decent government to protect its citizens, not to treat them as they would an enemy.  The idea that such practices could be used in the lower elements of society, in pursuit of criminals rather than state secrets or wartime intelligence, was not a practice, as honor was conscientiously upheld.  To deceive alleged criminals would be to stoop to the level of criminals.

We have looked at the possibility of law enforcement officers, in plain clothes or uniform, and whether it applies to them, prior to custody.  It would seem that such practice, if the intent were to obtain incriminating evidence prior to the act of custody, would be as unacceptable to the Framers as it would be after one was taken into custody.

So, while we are here, let’s go a bit further.  As explained in two previous articles (Informants Amongst Us? and Vortex – The threat that keeps us apart), law enforcement uses both agents and informants to obtain information.  An agent is an employee of the government, so we can include him in the discussion that follows.  Informants, however, are of three general categories.  There are informants that we might call “wannabe spies”.  One of those was Oliver Murphy, the friend that turned traitor to Schuyler Barbeau, and who received “over $3,500″ (See Search Warrant Affidavit or Fishing License) to work as an agent” for the government.  Then there are those who have been charged with a crime and have “adjudication withheld”, subject to performance of certain tasks for the government, which if deemed satisfactory, the charges are dismissed.  This is what the government attempted to do with Randy Weaver, and the result is a form of compensation, dismissal, for performance.  The third type of informant is the one that becomes disenchanted, or develops moral objection, and then runs to government with information that would incriminate others, however, there is no compensation except the satisfaction or gratification that informant achieves by his actions.

Of the three, it is the first two that we are concerned with, as the third is not acting as an agent of the government (law enforcement).  However the first and second are receiving consideration, either in cash or other benefits.

Pulling this together, we have the possibility of a paid agent, a paid informant, or an otherwise compensated informant.  Each of them becomes what is legally referred to as an “agent”.  Now, to understand this, we will look to Black’s Law Dictionary, Fifth Edition, to verify that they do come under the legal definition of agent, and then on to understand the legal aspects of that “agency”.

AgentA person authorized by another to act for him, one intrusted with another’s business.  One who represents and acts for another under the contract or relation of agency…  One who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter, and to render an account of it.  One who acts for or in place of another by authority from him; a substitute, a deputy, appointed by principal with power to do the things which principal may do.

Co-agentOne who shares authority to act for the principal with another agent and who is so authorized by the principal.

Independent agent.  One who is an independent contractor exercising his own judgment and subject to the one who hired him only for the result of the work performed.

SubagentOne authorized by agent to help perform functions for principal.  Generally, absent express or implied authority, an agent has no authority to appoint a subagent.  The subagent is subject to control by both agent and principal.

Undercover agentA person who works as an agent without disclosing his role as an agent.  In police work, one who makes contact with suspected criminals without disclosing his role as an agent of the police.  He gathers evidence of criminal activity which may later be used at trial of the criminals.

So, regardless of which capacity, yes even undercover agent, there is a legal relationship with the principal.

Now, let’s look at Agency (also referred to as the law of agency).  First will be a common Internet definition of law of agency.  That will be followed by definitions from the same Black’s Law Dictionary.

The law of agency is an area of commercial law dealing with a contractual or quasi-contractual, or non-contractual set of relationships when an agent is authorized to act on behalf of another (called the Principal) to create a legal relationship with a Third Party.

AgencyRelation in which one person acts for or represents another by latter’s authority, either in the relationship of principal and agent, master and servant, or employer or proprietor and independent contractor.

Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.

Special agency.  One in which the agent is authorized to conduct a single transaction or a series of transactions not involving a continuity of service.

So, a legal relationship is created and the agent is subject to the principal’s control.  Now, if that legal relationship thus created were considered, then the agent would be as bound to the law as the principal.

We need to consider whether the intent of the Amendment is applicable to those in law enforcement who are bound by the amendment, even before custody.  Remember, the Court admits to the narrowness of the decision — as it was presented by the Court in Miranda.  However, if we consider that even absent custody, the suspicion is sufficient to warrant divisive means in an attempt to obtain incriminating evidence from the suspect, and therefore is an effort to entice the suspect to bear witness against himself, in violation of the Amendment.  For, whether before or after custody, it is making the suspect a witness against himself.

So, if an agent, or an informant working in the capacity of agent (see definitions above), is seeking that information (evidence — witness against himself), is he not legally bound by the prohibition embodied in the Fourth Amendment?

In another article (The Public’s Right to Know), we looked at a policy that we would normally consider being the secret police practices that we would expect to see conducted by the KGB or the Stasi.  Surely, even though the Court has not yet broadened its edict into the expanded misapplication of the Fourth Amendment, it must weigh heavily upon our conscience to accept that the practices suggested herein would fit comfortably within the minds and morality of those who gave us this once great nation.

We need to see with a broader view of what Miranda’s limitations are, to hear the words of the Framers, and to understand their intent when they put those words to paper.  Recall, from the Preamble to the Bill of Rights:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The Fourth Amendment is one of those restrictive clauses that apply to the federal government.  It is for us, then, to assure that the government does abide by the Bill of Rights — as much as a part of the Constitution as those Articles that created the government.