Fifth Amendment Right against Self-Incrimination

Subject: Law
Pages: 4
Words: 951
Reading time:
4 min
Study level: College

An accused person has the right to plead the fifth. The Fifth Amendment gives an accused person the right to remain silent. In the case of Miranda v Arizona (1966), the supreme court of the United States held that,” In the absence of other effective measures, the following procedures are to safeguard the Fifth Amendment privilege. The person in custody prior to interrogation must be clearly informed that he has the right to remain silent. That anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation; and that, if he is indigent, a lawyer will be appointed to represent him”. According to Broden (2007), “The United States Supreme Court has limited the scope of the Fifth Amendment privilege. This is only to answers that would support a criminal conviction or which would furnish a link in the chain of evidence needed to prosecute the witness”. In John’s scenario, the police should inform him of his right to remain silent. The police should also inform him that anything he says can be used against him in a court of law. The police should also inform John of his right to request for a legal representative. The lawyer should be present during John’s interrogation.

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After arrest, during interrogations and during his arraignment, the police should inform John of his legal rights. These rights include the right to remain silent. The arresting officers should warn John that anything he says is likely to be used as evidence against him in a court of law. The officers in charge should inform John of his right to legal representation. Where the police fail to inform John of the right to remain silent, they cannot use any self-incriminating evidence against him in court. John has the right to legal representation even if he cannot afford it. After investigations are complete, the arresting officers should arraign the accused person in court within 24 hours. This takes place after the arrest. During the preliminary hearing, the court will appoint an attorney for John. This occurs if he is unable afford one.

When the terms of endearment are being set, the judge is likely to look at the following issues: The seriousness of the offence; past convictions and John’s national status. The judge will consider the seriousness of the offence. It is presumed that the more serious the offence, the more likely it is for the accused to flee. Serious offences such as murder and treason have no bail at all. In John’s case, the judge should look at the magnitude of John’s offence. Since the goods stolen cost more than 1000 dollars, the cost of the bond will be high. The terms of the bond will be more stringent. The trial judge should consider past criminal records and convictions. The trial judge should also look at the similarity between past offences and the current one. People with no prior criminal offenses are likely to get better terms of endearment. In this particular scenario, John is a lucky man because the terms are likely to be favorable. He has no past convictions. The judge is likely to consider John’s national status. John is an illegal immigrant. The judge will consider setting terms to ensure that John does not flee the country. This takes place after the judge has released him. However, the eighth Amendment states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (US constitution, 1788). The right to liberty is a fundamental right and should only be denied when a person has been convicted of an offence.

A preliminary hearing is a process where the trial judge determines whether the accused person is liable for conviction. The judge decides whether the evidence presented is sufficient to stand a trial. The Supreme Court states that “a person arrested without a warrant and held by police must be given a preliminary hearing to determine if there is a probable cause”(Gerstein v Pugh, 1975). If the crime committed is a petty offence, the preliminary hearing will take place when the police arraign the accused person in court. If serious crimes are committed, preliminary hearings occur during the second instance when the accused person is taken to court. The Grand jury, on the other hand, represents a process where independent or neutral groups of citizens go through the prosecution’s evidence and determine whether there is a probable cause to show that the accused person committed a crime. There is a distinction between the preliminary hearing and the grand jury hearing. During the preliminary hearing, the trial judge decides whether the accused person is liable for prosecution. During the Grand jury hearing, a panel of ordinary citizens decides whether the accused person is liable for prosecution.

Arraignment refers to a process where the police bring an accused person to court for the first time. The court reads out the charges to the accused person. An arraignment informs the accused person of the charges leveled against him. After the court bailiff reads out the charges to the defendant, he is supposed to make a plea. The accused person can plead either guilty or not guilty. During this time, issues of bail arise. The hearing dates of the case are then set.

Reference list

Broden, Clinton. (2007). Fifth Amendment Right against Self-Incrimination. ‘Fifth Amendment Right against Self-incrimination. Web.

Gerstein vs. Pugh, 420 U.S.103 (1975). Web.

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Miranda vs. Arizona, 384 U.S. 436(1966). Web.

U.S Constitution, (1788) amend. VIII, S.1. Web.