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Grand Jury
Clause
“The
grand jury originated in England during the reign of Henry II (1154-89)”; it
was the result of a statute, the Assize of Clarendon, which compelled
subjects to appear before a court to accuse an individual of a crime
otherwise that person could not be prosecuted. This statute evolved into
English Kings using an accusatory body called a grand jury to spy on their
neighbors; specifically to find evidence for a King to use against those
with whom he disagreed or perceived to be a threat. Gradually, the role of a
grand jury evolved into one of a safeguard against the government, to
determine whether or not the accused should be charged.
In
America, grand juries helped protect Americans from unjust Royal laws. For
example, in 1734, John Peter Zenger, “a newspaper publisher who published
material critical of the Royal Governor of New York,” was accused of
seditious libel. Technically guilty, three separate grand juries refused to
indict Zenger because “they believed that citizens should be able to speak
freely.” Colonial grand juries also dismissed cases in which colonists “were
accused of violating taxation and importation laws,” regardless of guilt.
Today, it
seems as though Grand Juries have come full circle.
Grand
jurors are exempt from procedural or evidential rules. “Suspects [and
sometimes witnesses] have no right to have an attorney with them during the
proceedings and are not allowed to present witnesses in their favor.”
Sometimes they do not know they could be charged with a crime based on their
testimony. The accused are afforded little protection. “Grand juries have
such broad subpoena power that they can investigate alleged crimes very
thoroughly and often assist the prosecutor in his job.” Evidence uncovered
by a grand jury can be used against a suspect; therefore many “waive their
right to a grand jury because it offers little protection and might cause an
embarrassing investigation to take place.”
Because
it is so easy for a prosecutor to stack evidence, “grand juries almost
always indict people on the prosecutor's recommendation.”
Sources:
Revolutionary War & Beyond: Grand Jury Clause - 5th
Amendment
Double
Jeopardy
Though
English law prohibited double jeopardy in capital crimes leading to
the death penalty, the right was sometimes ignored and a defendant might be
tried. In the colonies, the Massachusetts charter provided, "No man shall be
twise sentenced by Civil Justice for one and the same Crime, offence, or
Trespasse”.
By
drafting the Double Jeopardy Clause, the Framers wanted to:
1)
Prevent the government from employing its superior resources to wear down
and falsely convict innocent persons
2)
Protect individuals from the financial, emotional, and social consequences
of successive prosecutions
3)
Preserve the finality and integrity of criminal proceedings, which would be
compromised were the state allowed to arbitrarily ignore unsatisfactory
outcomes
4)
Restrict prosecutorial discretion [absolute power to bring criminal charges]
over the charging process
5)
Eliminate judicial discretion [make decisions on some matters without being
bound by precedent or strict rules established by statutes] to impose
cumulative punishments not authorized by the legislature.
In
criminal cases, Double Jeopardy is subject to the "dual sovereignty"
doctrine, meaning a person may be tried by the federal government and by a
state government for the same crime because they are sovereign units with
their own laws and powers derived from different sets of people.
Source:
Revolutionary War & Beyond: Double Jeopardy Clause
Self-Incrimination
John
Lilburne, a Puritan who opposed Anglican religious uniformity across
England, is credited with the idea that there is a "natural right" not to be
forced to testify against oneself. In 1638, arrested for bringing Puritan
literature into England, he refused to take an oath requiring him to
incriminate himself. He was tortured and imprisoned for his refusal.
Parliament declared his punishment illegal and recognized the right against
self-incrimination. English Puritans who left England because of the
religious persecution carried Lilburne’s ideas to the New World. Still, in
Massachusetts and other colonies, colonists were subjected to inquisitorial
judicial proceedings in which they were to testify against themselves.
Torture was utilized to extract confessions. However, by the end of the
Revolutionary War, six states had anti-self-incrimination clauses in
constitutions. In addition, several states recommended an
anti-self-incrimination clause be added to the Constitution. Madison
obliged.
Source:
Revolutionary War & Beyond: Self-Incrimination Clause
Due Process
Before
the Magna Charta, Monarchs made the rules up at will. Sometimes a person
would be thrown into prison and not know what law was violated. The Magna
Charta provided, "No free man shall be seized, or imprisoned, or disseised,
or outlawed, or exiled, or injured in any way ... except by the lawful
judgment of his peers, or by the law of the land". Written constitutions put
an end to arbitrary and capricious practices. Government must follow written
laws.
No person
shall be "deprived of life, liberty, or property without due process of
law."
Q) How
much process is due in a particular hearing to satisfy the fairness
requirements of the Constitution?
R) The
government must give a litigant notice and the opportunity to be heard.
Q) What
is the nature and the scope of the liberty protected by the Constitution
before affording litigants a particular freedom?
R) The
word liberty cannot be defined by a definitive list of rights. Individuals
may lead their lives free from unreasonable and arbitrary governmental
impositions
Since
the New Deal began has given rise to the idea that certain government
services are "rights" that people deserve. Such things as welfare checks,
unemployment checks and drivers licenses fall into this category. Before,
these things were looked at as privileges, not as rights. The Court has
found a right to
privacy, a right to abortion and a right to same sex relations through its
ever expanding "life, liberty, or property" definition.
Source:
Revolutionary War & Beyond: Due Process Clause - 5th
Amendment
Private
Property
The Magna
Charta read, "no free man shall be...disseised [deprived] of his
freehold...except by the lawful judgment of his peers, or by the law of the
land." Owners were not entitled to compensation when their “property was
taken by the government for public use.” The practice of eminent domain was
put to use in the American colonies and “generally involved unimproved land
(land that had not been built on),” and was appropriated “to build roads and
bridges to develop America's frontiers.”
During
the American Revolution, many unfair practices developed by legislatures
“that were abusing their power of eminent domain. New York, for example,
regularly failed to recognize titles to real estate in its colony held by
residents of Vermont. Other colonies also discriminated in favor of their
own residents, and against persons whose patriotism was questionable during
the Revolution.”
“By the
time the Bill of Rights was added to the Constitution, American citizens had
had enough of their governments taking their land or other property without
paying them back.”
Source:
Revolutionary War & Beyond: What is the Eminent Domain
Clause? |
