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The fifth and sixth amendments

Amendment five and six are amendments made in the United States constitution which is also part of the bill of rights of the United States. These amendments aim is to protect the rights of human beings who may be criminals especially against abuse of the authority of government in a legal procedure.

The Fifth Amendment says that for a person to be held to answer for a capital or any infamous crime defined as a felony punishable by imprisonment for more than one year there must be presentments of a grand jury. This is however is not the case when it comes to cases where they existed in the land or naval forces and also in the militia when one is in service during war or public danger. The amendment continues by saying that when one is subject to same offence they should not be double jeopardized .They should not be used as their own witnesses and all their rights should be fulfilled. Their property should also not be tampered with or become public property without them being compensated.

The grand jury however is only applicable in cases of felony charges. It does not include protecting those in the armed forces. There are also certain evidences that cannot be given to the grand jury even in felony charges. The individuals also charged with a crime are not allowed to enter with their attorney where the grand jury is holding the hearing. They can only go out to consult them once they have been asked a question. Many states in the United States are now doing away with the grand jury since they are free to do so.

The clause of double jeopardy has certain prohibitions the first one being prosecution after acquittal whereby the government is denied the right to appeal after entry of an acquittal. The principle however does have exceptions and the government may be allowed to appeal a pre-trial motion to dismiss. After a jury conviction the government can also appeal a directed verdict. There is also an exception in appealing in cases where there has been known to be judiciary bribery. The other prohibition is prosecution after mistrial where the defendant can only move for mistrial after the prosecutor acts in bad faith. The other prohibition is prosecution after conviction which says that an individual may be tried and punished separately for two crimes if each crime has its own elements different from the other.

The Fifth Amendment is also the one that protects individuals from self incrimination. This means they can decide to not talk when questions are asked and they can also refuse to give a testimony during the hearing. This way the Fifth Amendment protects their right to remain silent. This right applies when an individual is in a legal proceeding where they are expected to testify. This right however does not apply when one is testifying before a self regulatory organization which cannot send one to jail. An individual can however testify when they are given immunity by the government and even if they will be convicted their testimony will not be used against them.

Any evidence that is obtained illegally cannot be used according to the Fifth Amendment. Confessions should not be given involuntarily and an individual needs to know their rights first before confessing to anything. The questioning of an individual is supposed to occur when in custody.

The sixth amendment on the other hand states that an individual in a criminal prosecution has the right to a speedy and public trial. The public trial right can only be done away with if presence of the public undermines defendants’ rights. They should also be free to get a counsel and also their own witnesses. The individual can also be confronted by witnesses who are against them.

It is the supreme courts duty to ensure that the accused gets these rights and in the case of a speedy trial there are certain ways to know if this right has been violated. The court looks at the length of the delay. There is also the reason of delay which may be justified if it is for the benefit of the case, if the defendant has caused the delay maybe waiting for a witness they cannot complain of being delayed. There is lastly the degree of the prejudice to defendant due to the delay.

There are certain cases that require a jury and these are the serious cases like murder. The other petty cases where one is imprisoned for maybe a few months does not require a jury. The sixth amendment stated that the number of jury had to be twelve and that their decision had to be unanimous. The amendment also requires the jury to be fair in their rulings. This is required to be ensured by making sure that when the members of the jury are selected almost all communities or races and groups are represented. It is also a requirement by the sixth amendment that one be tried where they committed the crime. The jury will also include members from that state.

The sixth amendment also gives an individual the right to be told all details concerning the nature of their accusations. This way they will avoid facing double jeopardy because they will know when they are prosecuted for something they paid for before. When in court a witness can be confronted and also cross examined. The prosecutor can also use physical evidence but cannot refer to any evidence not presented to the jury.

There is the compulsory process clause in the sixth amendment whereby the defendant can call a witness in their favor and if that witness refuses to testify they may be forced to do so by the court. The defense lawyer should however notify the jury of the witness before the hearing.

The sixth amendment also gives an individual the right to be represented by a counsel and in cases where they cannot afford one the court is required to appoint one for them. The individual may also represent themselves if they are competent.

Work cited

Miniter, Frank (2011). Saving the Bill of Rights: Exposing the Left’s Campaign to Destroy American Exceptionalism. Regnery Publishing. p. 204.

Johnathan M. Lamb, Pepperdine Law Review, Vol. 36, p. 213 (2008). “The Muted Rise of the Silent Witness Rule in National Security Litigation”. Ssrn.com. Retrieved April 11, 2011.