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The origin of the principle is miscalculated by at least 2500 years. Due process is established in the Bible e.g.,
Deuteronomy 19:15 “One witness shall not rise against a man concerning any iniquity or any sin that he commits; by the mouth of two or three witnesses the matter shall be established. 16 If a false witness rises against any man to testify against him of wrongdoing, 17 then both men in the controversy shall stand before the LORD, before the priests and the judges who serve in those days. 18 And the judges shall make careful inquiry, and indeed, if the witness is a false witness, who has testified falsely against his brother, 19 then you shall do to him as he thought to have done to his brother; so you shall put away the evil from among you." (NKJV)
This explicitly states or infers:
- A court with judges rather than self-vindication - The requirement for evidentiary standards (e.g., witnesses) - A hearing where inquiry is made of the evidence - A determination by the judge based on the evidence presented
Are these not "due process"?
Additionally, this principle is further supported from Scripture by:
Deut 17:6 Whoever is deserving of death shall be put to death on the testimony of two or three witnesses; he shall not be put to death on the testimony of one witness. (NKJV)
John 7:51 “Does our law judge a man before it hears him and knows what he is doing?” (NKJV)
Num 35:30 Whoever kills a person, the murderer shall be put to death on the testimony of witnesses; but one witness is not sufficient testimony against a person for the death penalty.
Also, as the verses indicate, due process applies most importantly to cases involving "life" (i.e., death penalty offenses). It should also be obvious that it also applies to cases involving "any iniquity or sin" for example:
"liberty cases"; for example: - kidnapping
"property cases"; for example: - theft
Micah6v8 (
talk) micah6v8@usmail7.com
02:10, 13 September 2008 (UTC)
It wasn't clear in the article can you take the fifth during a deposition? My husband I were arguing over this we both read a lot. Do you have to answer every question and is it illegal to be coached on your answers? —Preceding unsigned comment added by 71.236.243.22 ( talk) 21:37, 21 November 2007 (UTC)
I oppose it as well, and seeing as the merger discussion has been going on for over a month and a half, I'm removing the tags. I hope I am not being too bold for you all, if you disagree feel free to put the tags back up. Radagast83 07:45, 14 November 2006 (UTC)
I've been hearing some rumblings here and there about how this White House proclamation nullifies the 5th amendment (or much of it). Is there any truth to this claim? Esn 07:00, 20 July 2007 (UTC)
Doesn't Nullify it, but it certainly reinterprets sections of it. Locke 08:00, 20 July 2007
Whether or not Google news picks it up. This is from the White House's own press-release page, which makes it a more than credible source. In fact, this is where Google news would get their information. Since the Executive order clearly affects individuals that would otherwise be under the protection of the 5th amendment, (See Executive Order regarding "U.S. Persons", U.S. Citizens are included), I feel the wikipedia has a responsibility to report the current state of events on the amendment. Locke 09:00, 20 July 2007
Fair enough, but I think its a fine point. Perhaps it would have been better to initially write "Recent Changes may include...." The content of the order is steeped in 5th amendment lingo, so whether or not they specifically address the amendment, they are trying to work inside its framework. Locke 20:10, 20 July 2007
Dear readers: I'm missing something. What does this this White House proclamation have to do with the Fifth Amendment? What part of the Fifth Amendment? I don't even see a reference to the Fifth Amendment in the text.
Oh, and here's a clue: As a general proposition, there is no procedure under the American legal system whereby an executive order can "nullify" a Fifth Amendment right. Looks like maybe someone posted the wrong link. Famspear 16:57, 25 July 2007 (UTC)
PS: See comments by editor Timmyboy22 above. That pretty much says it. Famspear 16:59, 25 July 2007 (UTC)
This article refers to the right to not self-incriminate oneself as a "privilege". Isn't it technically a right? -- 67.165.6.76 02:34, 12 October 2007 (UTC)
No one seems to have responded to this, but the article was changed (inappropriately). While it may appear arbitrary (as many of the intricacies of the rules of evidence may), "rights" allowing legal persons to withhold testimony or otherwise refuse to produce evidence are generally referred to as "privileges" -- like the attorney-client privilege, priest-penitent privilege, etc. Just read the major Supreme Court decisions listed in the article -- Malloy, Miranda, et al -- for illustrations. (Why do the Miranda warnings refer to a "right to remain silent"? Maybe because Miranda turns as much on the right to counsel as the Fifth Amendment privilege.) Minos P. Dautrieve ( talk) 05:04, 20 January 2008 (UTC)
This article needs alot more sourcing. Whole sections have no references. With this in mind, I have added a tag at the top of the article calling for more sourcing in the article. -- SMP0328. ( talk) 01:13, 26 March 2008 (UTC)
The article says that the Miranda Warning is given at the time of the arrest. However, isn't it true that it is given before interrogations? Ummonk ( talk) 19:05, 3 April 2008 (UTC)
With the current White House/CIA/Justice Department attitudes on "enhanced interrogation", whether the following portion of the 5th Amendment is a prohibition on torture seems to be a relevant item for inclusion in this article, assuming any background material can be found.
nor shall be compelled in any criminal case to be a witness against himself.
4.156.27.227 ( talk) 03:40, 23 February 2008 (UTC)
A quote from the Virginia Debates on the Ratification of the Constitution regarding the prohibition on torture by the clause that "no man can give evidence against himself" in the bill of rights. The Bill of Rights in question is the English one. The one in the US Constitution had not been written at the time this comment was made. Found in Elliot's Debates, Volume 3 page 452
Mr. GEORGE MASON replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition. —Preceding
unsigned comment added by
4.156.27.206 (
talk)
02:59, 11 June 2008 (UTC)
The issue could also be whether "torture" constitutes "a deprivation of one's liberty". Brown v. Mississippi, 297 U.S. 278 (1936), even when there is no confession. But as there are police brutality statutes, the preference is that cases will be decided on the statutory grounds first. —Preceding unsigned comment added by 70.22.42.124 ( talk) 21:13, 13 May 2009 (UTC)
References
Shouldn´t the article say that the 5th applies to non-US citizens only within the United States? It seems to imply that all people of the world have claims to constitutional rights, let´s say uhhh ... when dealing with the US military in a foreign country, if that isn´t too much to the point. —Preceding unsigned comment added by 76.196.75.176 ( talk) 03:36, 27 April 2008 (UTC)
Also feel with respect to non-U.S. citizens, this is not at all 'settled law.' The Bill of Rights was clearly intended to protect U.S. citizen's rights, and not foreigners at all until they achieved citizenship. Nor corporations (remember the East India Company, and warnings the founders had with respect to granting them any 'legal' status due to the 'sway' they had over King George). Although the Supreme Court has ruled otherwise, it has done so for political reasons, in reaching their conclusions without also factoring in the founder's intent (which in any 'contract' is to be done - and using the clear language (not reinventing the language) of the 'contract' in interpreting it's terms. We have and have had almost since the inception a 'political' rather than 'Constitutional' Supreme Court....so would not say that the 'facts' presented here in granting either foreigners or corporations Fifth Amendment protection are in any way, shape or form 'settled law.' —Preceding
unsigned comment added by
71.15.46.185 (
talk)
07:57, 18 May 2008 (UTC)
Added language to article from Councelman v Hitchcock. Councelman was referenced in Miranda in glowing language. —Preceding unsigned comment added by 68.163.105.54 ( talk) 23:14, 24 January 2009 (UTC)
Added reference to a Boyd v US ruling in "Other" section of the article. The ruling is a combination 4th and 5th Amendment. Boyd was also referenced in Miranda. 68.163.105.54 ( talk) 15:04, 25 January 2009 (UTC)
Hello!
I recently edited this article to remove the definite article from Magna Carta. This has since been reverted. Could the editor who reversed this please give an explanation? Magna Carta should not be rendered "The Magna Carta" since Magna Carta is Latin for "Great Charter" and there is no definite article in Latin. Convention is therefore to refer to this document without the definite article. If nothing else, adopting this usage would make this article consistent with the entry on Magna Carta, which uses the formal convention without the definite article. Thank you. Rubisco ( talk) 10:55, 5 April 2009 (UTC)
The Puritans were not fleeing to the New World to escape persecution. They only came to the colonies after residing in the Netherlands for over a decade and finding Dutch society too tolerant for their tastes. Please stop spreading the common myth that fled to the New World from persecution. Wikipedia should be above grade school lies-to-children nonsense. 99.6.225.149 ( talk) 14:21, 21 June 2010 (UTC)
Perhaps someone could expand the article using the information from Star Chamber#The Star Chamber and the US Constitution. -- œ ™ 11:34, 11 September 2010 (UTC)
Someone with more legal knowledge than I should update this section. First, in the Fricosu case, it's not a "computer password," it's a password or passphrase that allows data to be decrypted. I think the heading should be changed to "Encrypted Computer Data" or something similar.
Second, there are more recent developments. In February, the 11th U.S. Circuit Court of Appeals ruled that forcing someone to reveal an encryption passphrase is unconstitutional. Shortly afterward, the Feds in the Fricosu case miraculously "cracked" Fricosu's password, rendering the judge's order moot. I suspect, but cannot show, that the Feds got the password from Fricosu's ex-husband, also a defendant, but who is cooperating with the prosecution. I conjecture that they did not do that earlier because they were hoping to establish a precedent. That got blown out of the water by the 11th Circuit Court of Appeals. Bob Brown ( talk) 01:29, 6 March 2012 (UTC)
This section incorrectly cites the case of Yarborough v. Alvarado. The SCOTUS ruled in that case that a state court had reached a correct conclusion in custodial analysis. They noted that age could be a subjective criteria, but they did not rule more broadly and say that age is always a subjective criteria. The Court clarified this point in a recent ruling, J.D.B. v. North Carolina, where the Court found age to be an objective factor in custodial analysis. I have updated this section to properly reflect these facts. Sailing to Byzantium ( talk) 19:18, 21 June 2011 (UTC)
I think this issue is a pretty substantial one and should probably have it's own article (similar to Double jeopardy for example). Someone started a Custodial interrogation article a while back and I'm definitely willing to clean it up and expand it. Thoughts? Sailing to Byzantium ( talk) 19:51, 21 June 2011 (UTC)
This was obviously written before anyone even considered having an airforce what effect does this have on the law? 82.40.4.248 ( talk) 00:49, 4 September 2011 (UTC)
The statement ascribes an opinion to "legal scholars", but the source ( Frank Miniter) doesn't appear to match that description. Another source might be available TEDickey ( talk) 23:35, 5 December 2011 (UTC)
I deleted an erroneous reference to the case of United States v. Doe, no. 11-12268 and no. 11-15421 (11th Cir. 2012). The Doe decision does not "contradict" the earlier cited case. The facts in the two cases are different. Famspear ( talk) 02:23, 29 February 2012 (UTC)
Generally, a person cannot sucessfully assert the Fifth Amendment privilege against being compelled to be a witness against himself merely because the information (such as data on a computer hard drive) is incriminating.
However, there is an exception to that rule that relates to the Act of Production Doctrine. If the very act of producing the material has a "testimonial aspect" related to the existence, custody or authenticity of the data, then it is possible to successfully assert the privilege.
The mere fact that in one case a court ruled that someone had to produce a password or de-encrypt (is that a word) a hard drive and that in another case a court ruled that someone did NOT have to do the same thing does not mean that one case "contradicts" the other case. The two cases can be applying the same law and reach different results because the FACTS of the case are different. Famspear ( talk) 02:27, 29 February 2012 (UTC)
On a pure law standpoint, you are right. One ruling in a certain case cannot contradict a ruling in a different case. But I wrote this from a journalistic POV, the two cases being very similar. The section Computer Passwords is currently written in such a way that one thinks Computer Passwords are not protected by the Fifth Amendment, never, in all cases. This is simply not true — Preceding unsigned comment added by 93.182.169.163 ( talk) 09:34, 29 February 2012 (UTC)
Well, no, we're not talking about speculation or personal opinion.
The vast majority of legal issues are never presented to or decided by the U.S. Supreme Court. The fact that the Supreme Court has not ruled on a particular issue does not make a lower court ruling on that subject "speculation" or "personal opinion."
The point I made -- that the Fifth Amendment does not protect passwords, per se -- is not speculation or personal opinion. It's a statement on what the law is. However, I agree with editor Neosider that the material in question is just as well removed from the article. Famspear ( talk) 16:43, 10 March 2012 (UTC)
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I would like to suggest a source to support some of the information in this article. I see that the first paragraph of the Eminent domain section is entirely unsourced. I believe that an article from The Heritage Foundation's Constitution Guide could be used as a reference here. However, I am asking for help in making this change because I work for The Heritage Foundation. Below is the paragraph as it exists in the article and the code for the citation:
<ref name="Kmiec Takings">{{cite web |url=http://www.heritage.org/constitution#!/amendments/5/essays/151/takings-clause |title=Takings Clause |author=Douglas W. Kmiec |date= |work=The Heritage Guide to the Constitution |publisher=The Heritage Foundation |accessdate=Oct 1, 2012}}</ref>
If this source looks appropriate as a reference for this information could someone please add it into the section? Thanks! Thurmant ( talk) 19:23, 9 October 2012 (UTC)
The Bill of Rights, being the first ten articles of amendment to the Constitution of the United States is law. It is not just some mere description of the rights and privileges enjoyed by the people, but rather instructions that guarantee their protection. It is these instructions that apply when a person is involved in a legal proceeding, excepting the possibility of subordinate instructions of a state constitution applying as well (which is handy when you don't approve of the Federal Rules of Procedure, as a person can often obtain remedy in those venues easier). It matters not whether there is a right or a privilege when there are no instructions that actually protect them.
Also, I noticed that the citation that was used to support the statement didn't actually support the statement, so it was promptly removed. Please use a better authority that actually bears relevance to the whole statement, rather than just a particular part of the subject. If you only wish to cite just that part of the subject, then place your citation there, as wikipedia doesn't require you to make citations at the end of a sentence.
You should also be informed that the fifth amendment to the Constitution of the United States is actually the fourteenth article of amendment. It is impossible to be plain and clear without adequate precision. — Preceding unsigned comment added by 68.54.102.157 ( talk) 18:59, 16 January 2013 (UTC)
Examples:
Definition, From the Legal Information Institute at Cornell University:
See [1].
From the Federal Rules of Evidence:
--from Rule 608(b), Federal Rules of Evidence.
From Barrons Law Dictionary:
--from Barrons Law Dictionary, p. 434 (2d ed. 1984).
The term is "privilege," not "instruction," and the privilege definitely exists. Famspear ( talk) 19:12, 16 January 2013 (UTC)
Are you really trying to make the claim that it is incorrect to call the fifth article of amendment instructions, but to rather call this a privilege? As you have already stated, this article (or amendment to use your words) only relates in part to this privilege. Not only does this law only relate in part, it merely relates, by your own statement. My words are a bit more plain and clear in this matter and I encourage you to reflect upon this. I am not disputing whether resisting or refraining from compulsory testimony is a privilege, as this bears no relevance. It does not matter what the nature of this action is, as it is the law that is actually applied, not the privilege. The law is applied when the privilege is recognized.
BTW, you are doing a really good job today! I haven't been this pleased in quite a while! :) — Preceding unsigned comment added by 68.54.102.157 ( talk) 19:22, 16 January 2013 (UTC)
While the rest of y'all here at wikipedia do not desire a lecure from me, I have been instructed by wikipedia to discuss this matter on this talk page in order to obtain a consensus to resolve the dispute, which is what I am going to do until a consensus is reached. This is the procedure that must be followed to keep from being blocked and preventing an edit war. You have so far failed to explain why my edits are incorrect, but you excelled at informing me that my edits were not backed by any citations. I will remedy this the next time I edit the page, after these proceedings upon this talk page are concluded.
When I get some spare time, I will review your citations and explain the deficiencies within them. Thank you for helping me! :) — Preceding unsigned comment added by 69.89.211.101 ( talk) 20:14, 16 January 2013 (UTC)
A discussion is ongoing about the lead to the Second Amendment to the United States Constitution article. Please help form a consensus at Talk:Second Amendment to the United States Constitution#Proposal for lead.-- Mark Miller ( talk) 13:14, 4 November 2013 (UTC)
I've notice that a couple of new users have been changing the text to read Fifth Amendment "right" rather than Fifth Amendment "privilege" -- possibly under a mistaken perception about how the term "privilege" is being used here in a technical legal sense. The word "privilege" is used here in the sense of an evidentiary privilege -- not in the sense in which people normally use the term.
When we were kids, we may have heard a parent or teacher say something like: "Driving is a privilege, not a right. Your privilege can be taken away from you if you don't do your homework" or whatever. I think that may be the source of the confusion. When Mom used the term "privilege" that way, she was using it to mean something quite different.
The correct term is "Fifth Amendment privilege." Famspear ( talk) 02:11, 6 February 2013 (UTC)
This section references 3 court cases but offers only 2 quotes. It is unclear which quotations belong to which cases.
It looks reasonable that the first quotation belongs to the first case mentioned, but then it's followed by a court case reference. I do not have the legal research abilities to confirm which decisions contained which quotes before editing for clarity.
Current text
In United States v. 50 Acres of Land (1984), the Supreme Court wrote that "The Court has repeatedly held that just compensation normally is to be measured by "the market value of the property at the time of the taking contemporaneously paid in money." Olson v. United States, 292 U.S. 246 (1934) ... Deviation from this measure of just compensation has been required only "when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public." United States v. Commodities Trading Corp., 339 U.S. 121, 123 (1950).
Tzimnoch ( talk) 14:23, 31 January 2016 (UTC)
Is there a reason why the Due Process section is empty, save the main article link? It there's no objection, I'll add a few summary sentences. jxm ( talk) 19:13, 27 August 2017 (UTC)
Could that be revised slightly to have not just an NPOV but a realistic one too? A lot of it basically slants to the Kelo side of the recent decision. Unless there is actual proof that there's a plan to take all the church land. — Preceding unsigned comment added by RobbieFal ( talk • contribs) 07:06, July 1, 2005 (UTC)
I know you don't have to incriminate yourself but how about if someone was there and possibly witnessed the activity? Does the witness have to talk if questioned? I know about the lawyer situation....Just wondering if the witness can choose not to speak at all. Please let me know at (email removed) Thanks for your help. — Preceding unsigned comment added by 132.25.0.206 ( talk) 19:51, October 10, 2006 (UTC)