Most Americans are familiar with the 5th Amendment to the United States Constitution through movies and television shows. The Fifth Amendment guaranteed that you cannot be compelled to be a witness against yourself. It guarantees that you cannot be tried twice for the same crime. The Fifth Amendment guarantees that no person shall be deprived of life, liberty, or property, without due process of law.
The Fifth Amendment to the Bill of Rights of the US Constitution states:
“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 offense 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.”
Self-Incrimination Clause
“No person shall . . . be compelled in any criminal case to be a witness against himself . . .”
The Fifth Amendment privilege against self-incrimination protects an individual not only in the context of a criminal trial, “but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings”. See Lefkowitz v Turley, 414 US 70 (1973).
The New York State Constitution Article I, Section 6 forbids the State from compelling incriminating answers which may be used in any criminal proceedings. However, the law permit incriminating testimony to be compelled if neither it nor its fruits are used against you in a future criminal proceeding. See Lefkowitz, 414 US 70.
You have the constitutional right to refuse to speak with the police. If you are detained or arrested by law enforcement you have the right to remain silent and only disclose your name and address.
Double Jeopardy Clause
“No person shall be . . . subject to the same offense to be twice put in jeopardy of life or limb . . .”
Federal law provides that double jeopardy is attached when a citizen is prosecuted twice for a crime arising out of the same offense. Under Blockburger v United States, 284 US 299 (1932), two distinct statutory provisions do not constitute the “same offense” for double jeopardy purposes if each provision requires proof of a fact which the other does not.
New York Criminal Procedure Law Section 40.20 provides that a person shall not be separately tried twice for two separate offenses based on the same act or criminal transaction except:
(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
(b) Each of the offenses as defined contains an element that is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
(c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof; or
(d) One of the offenses is assault or some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after prosecution for the assault or other
non-homicide offense; or
(e) Each offense involves death, injury, loss, or other consequence to a different victim; or
(f) One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon the insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this State; or
(g) The present prosecution is for a consummated result offense, as defined in subdivision three of section 20.10, which occurred in this State and the offense was the result of a conspiracy, facilitation, or solicitation prosecuted in another State.
(h) One of such offenses is enterprise corruption in violation of Section 460.20 of the penal law, racketeering in violation of federal law, or any comparable offense pursuant to the law of another state and a separate or subsequent prosecution is not barred by section 40.50 of this article.
Due Process Clause
“No person shall be . . . deprived of life, liberty or property, without due process of law . . .”
The Founding Fathers wanted the accused to have a fast trial and not to suffer the fate that many had suffered in the King's dungeon in Great Britain.
In New York, the State must not unreasonably delay prosecuting the accused. The accused is entitled to a speedy trial as provided for in New York Criminal Procedure Law Sections 30.20 and 30.30. Once you are arrested the criminal process has started and you are constitutionally entitled to a speedy trial. See People v Prosser, 309 NY 353 (1955).
Grand Jury Clause
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .”
The Founding Fathers did not trust an all-powerful government, further, they did not trust the life of their fellow citizen in the hands of a single federal prosecutor. Therefore, they created the grand jury system where members of the community would determine if there is probable cause that a fellow citizen committed a crime.
The courts have ruled that any crime that may be punished by more than one year of imprisonment in a penitentiary or at hard labor is an infamous crime. See Green v United States, 356 US 165, 183 (1958); Mackin v United States, 117 US 348, 350-52 (1886); United States v Russell, 585 F2d 368, 370 (8th Cir. 1978); Catlett v United States, 132 F2d 902 (4th Cir. 1943). For example, all federal felonies are punishable by more than one year and are therefore infamous crimes. See 18 USC § 4083. Likewise, in New York, all State felonies are punishable by a term of imprisonment of more than one year. Where a citizen is being prosecuted for a felony the law requires that the accusations be presented to a grand jury. Therefore, all federal and state felonies are infamous crimes requiring grand jury action for prosecution.
We zealously represent clients in the Bronx, Queens, Brooklyn, Manhattan, Westchester, and Nassau Counties in all aspects of State and Federal criminal law matters from arrest to trial. If you are about to be arrested or wanted for questioning by law enforcement then you should protect your rights by calling the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.