Archive for the ‘Fifth Amendment’ Category

5th Amendment – constitution | Laws.com

Fifth Amendment: Protection against abuse of government authority

What is the Fifth Amendment?

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

The Fifth Amendment Defined:

The Fifth Amendment stems from English Common Law and traces back to the Magna Carta in 1215.

The Fifth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 5th Amendment:

The Fifth Amendment is asserted in any proceeding, whether civil, criminal, administrative, judicial, investigatory, or adjudicatory. The Fifth Amendment protects against all disclosures where the witness reasonably believes the evidence can be used in a criminal prosecution and can lead to the spawning of other evidence that might be used against the individual.

The Fifth Amendment guarantees an American individual the right to trial by Grand Jury for specific crimes, the right not to be tried and subsequently punished more than once for the same crime, the right to be tried with only due process of the law and the right to be awarded fair compensation for any property seized by the government for public use.

The Fifth Amendment also guarantees the individual the right to refrain from self-incrimination by pleading the fifth to any questions or inquiries that may give way to an additional punishment or the notion of a guilty plea.

State Timeline for Ratification of the Bill of Rights

New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

North Carolina:December 22, 1789; approved all

South Carolina: January 19, 1790; approved all

New Hampshire: January 25, 1790; rejected article II

Delaware: January 28, 1790; rejected article I

New York: February 27, 1790; rejected article II

Pennsylvania: March 10, 1790; rejected article II

Rhode Island: June 7, 1790; rejected article II

Vermont: November 3, 1791; approved all

Virginia: December 15, 1791; approved all

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5th Amendment - constitution | Laws.com

Why Trump Can’t Pardon Arpaio – New York Times

In American constitutional democracy, democratic choices are limited by restraints imposed by the Constitution. The due process clause of the Fifth Amendment dictates that neither life nor liberty nor property may be deprived absent due process, which the Supreme Court construes to require adjudication by a neutral judge.

In short, under the Constitution one cannot be deprived of liberty without a court ruling upon the legality of the detention. The power of courts to restrain government officers from depriving citizens of liberty absent judicial process is the only meaningful way courts have to enforce important constitutional protections. But if the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power.

I am not suggesting that the pardon power itself provides for a due process exception. To the contrary, on its face the pardon power appears virtually unlimited. But as a principle of constitutional law, anything in the body of the Constitution inconsistent with the directive of an amendment is necessarily pre-empted or modified by that amendment. If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation.

I admit that this is a novel theory. Theres no Supreme Court decision, at least that I know of, that deals specifically with the extent to which the president may employ his pardon power in this way.

But if the president can immunize his agents in this manner, the courts will effectively lose any meaningful authority to protect constitutional rights against invasion by the executive branch. This is surely not the result contemplated by those who drafted and ratified the Fifth Amendment, and surely not the result dictated by precepts of constitutional democracy. All that would remain to the courts by way of enforcement would be the possibility of civil damage awards, hardly an effective means of stopping or deterring invasions of the right to liberty.

Anyone who has read the Federalist Papers knows how obsessed the framers were with the need to prevent tyranny. They were all too aware of the sad fate of all the republics that had preceded ours rapid degeneration into tyranny. One of the most effective means of preventing tyranny was the vesting of the power of judicial review in a court system insulated from direct political pressures. Subsequent enactment of the Bill of Rights, which included the Fifth Amendment and its due process clause, only strengthened the nations resolve to prevent tyranny.

It has long been recognized that the greatest threat of tyranny derives from the executive branch, where the commander in chief sits, overseeing not just the military but a vast and growing network of law enforcement and regulatory agencies. Indeed, the Articles of Confederation didnt even provide for an executive, for fear of what dangerous power he might exercise.

While the Constitution, in contrast, recognizes the very practical need for an executive, that doesnt mean its framers feared the growth of tyranny any less. The Fifth Amendments guarantee of neutral judicial process before deprivation of liberty cannot function with a weaponized pardon power that enables President Trump, or any president, to circumvent judicial protections of constitutional rights.

Martin H. Redish is a professor of constitutional law at Northwestern and the author of Judicial Independence and the American Constitution: A Democratic Paradox.

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Why Trump Can't Pardon Arpaio - New York Times

US indicts 2 bankers in Libor-rigging case – MarketWatch

Two bankers were indicted in the U.S. on Thursday on allegations that they manipulated a key benchmark interest rate while at French lender Socit Gnrale SA, in the latest U.S. attempt to prosecute alleged participants in a multibillion-dollar scandal that roiled global markets.

The U.S. Justice Department accused Danielle Sindzingre and Muriel Bescond of instructing their subordinates to submit inaccurately low figures that were then used to calculate Libor, or the London interbank offered rate, according to the indictment in U.S. District Court in Brooklyn.

The actions, which are alleged to have happened between May 2010 and October 2011, caused more than $170 million in harm to global financial markets because the false information affected transactions tied to Libor, according to the indictment.

The two bankers were charged with one count of conspiring to transmit false reports concerning market information that tends to affect a commodity and four counts of transmitting false reports.

Ms. Sindzingre, Ms. Bescond and the bank didn't respond to a request for comment. It isn't immediately clear if the women still work for Socit Gnrale.

In July, a federal appeals-court panel overturned the convictions of two former Rabobank traders in the scandal, saying the defendants' Fifth Amendment right against self-incrimination had been violated.

Libor is calculated every working day by polling major banks on their estimated borrowing costs. The rate was used to price futures contracts, interest rate swaps and other financial products world-wide. Its integrity has been called into question following a rate-rigging scandal where traders at numerous banks were able to nudge it up or down by submitting false data.

In the wake of the scandal, a top U.K. regulator said in July that it would phase out the rate, which is used to set the price of trillions of dollars of loans and derivatives across the world.

Write to Austen Hufford at austen.hufford@wsj.com

Two bankers were indicted in the U.S. on allegations that they manipulated a key benchmark interest rate while at French lender Socit Gnrale SA, in the latest U.S. attempt to prosecute alleged participants in a multibillion-dollar scandal that roiled global markets.

The U.S. Justice Department accused Danielle Sindzingre and Muriel Bescond of instructing their subordinates to submit inaccurately low figures that were then used to calculate the London interbank offered rate, or Libor, according to Thursday's indictment in U.S. District Court in Brooklyn.

The actions, which are alleged to have happened between May 2010 and October 2011, caused more than $170 million in harm to global financial markets because the false information affected transactions tied to Libor, according to the indictment.

The two bankers were charged with one count of conspiring to transmit false reports concerning market information that tends to affect a commodity and four counts of transmitting false reports.

Ms. Sindzingre, Ms. Bescond and the bank didn't respond to a request for comment. The women remain employed at Socit Gnrale, a Justice Department spokeswoman said Thursday.

In July, a federal appeals-court panel overturned the convictions of two former Rabobank traders in the scandal, saying the defendants' Fifth Amendment right against self-incrimination had been violated.

Libor is calculated every working day by polling major banks on their estimated borrowing costs. The rate was used to price futures contracts, interest-rate swaps and other financial products world-wide. Its integrity has been called into question after a rate-rigging scandal where traders at numerous banks were able to nudge it up or down by submitting false data.

In the wake of the scandal, a top U.K. regulator said in July that it would phase out the rate, which is used to set the price of trillions of dollars of loans and derivatives across the world.

Write to Austen Hufford at austen.hufford@wsj.com

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US indicts 2 bankers in Libor-rigging case - MarketWatch

Mercer County Sheriff’s officer returns to work despite wife’s death still under investigation – The Trentonian

TRENTON >> Scott Schoellkopf is back in uniform.

The Mercer County Sheriffs officer, who was arrested for beating his wife on April 28 and ultimately had the charges dismissed, returned to work on Aug. 16, authorities said Thursday.

Schoellkopf, a lieutenant, was re-assigned out of the fugitive unit to the courthouse security unit. Under the state legal system, Schoellkopf was cleared for duty and given the legal right to return to work, according to information provided by the Mercer County Sheriffs Office.

However, Chesterfield police confirmed Wednesday that his wifes death still remains under investigation.

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Regina Schoellkopfs body was found was found hanging in the couples home on the first block of Settlers Way in Chesterfield on July 2.

Five days earlier, a judge dismissed a simple assault charge that was filed by police against Scott Schoellkopf because his wife invoked her 5th Amendment rights to testify against her husband. Shortly after Scott Schoellkopf was charged with pushing his wife to the ground, causing redness and pain to the thigh area of her right leg, he filed a counter complaint against his wife, alleging she pushed him, causing red marks to his shoulder, according to court documents obtained by The Trentonian through a public records request.

Scott Schoellkopfs complaint was a private citizens complaint that Chesterfield Township Municipal Court Judge Lis Downey authorized on May 8, despite not being signed by police, court records show.

Scott Schoellkopf also invoked his Fifth Amendment right to testify against his wife and the charge against Regina Schoellkopf was dismissed.

According to a 9-1-1 tape obtained by The Trentonian through a public records request, Scott Schoellkopf called police the day his 39-year-old wife was found dead to report she had not shown up to pick up their two kids.

Me and my wife are getting divorced and my wife was supposed to pick our kids up at Wawa, Scott Schoellkopf tells the dispatcher. She never showed up so we came to the house and her cars in the driveway and the whole house is dark and everything. Shes never been late before.

The house is in the couples name, property records indicate.

A welfare check was then detailed to the house and Reginas Schoellkopfs lifeless body was found by police.

Authorities confirmed Wednesday that their investigation into the death is not over.

Chesterfield Police Chief Kyle Wilson said in an email that the investigation is still open. Initially, the chief said there was nothing suspicious.

The Burlington County Prosecutors Office said on July 6 and then again on July 7 that the agency is not involved in the investigation.

However, Burlington County Prosecutors Office spokesman Joel Bewley said Wednesday via email that the agencys High-Tech Crimes Unit has provided assistance in the probe.

Regina Schoellkopfs family also assumed custody of her body to perform their own autopsy, signaling they have concerns about her death.

The domestic violence incident on April 28 was documented in a 9-1-1 call obtained by The Trentonian. It shows that Regina Schoellkopf was afraid of her spouse.

My husband just hurt me, Regina Schoellkopf says to a police dispatcher with panic in her voice. Hes threatening me ... please hurry.

The wife, who was barricaded in the bathroom when she called police, said she was knocked down, causing pain and redness to her side.

At one point in the audio recording, Regina is heard saying, Im trying to protect myself to someone in the home.

F**k you, a man shouts back.

Scott Schoellkopf, an 18-year veteran who earns an annual salary of $115,083, was suspended without pay from the Mercer County Sheriffs Office following his arrest.

Scott Schoellkopfs arrest was the third time a Mercer County Sheriffs officer allegedly hit a female partner in a five-month span.

The Mercer County Sheriffs Office said Thursday that it stands firm on its disdain for domestic violence in the community and within its ranks.

Victims of domestic violence have help available. Online chat is available so victims can ask for help quietly at thehotline.org or the phone line is 1-800-799-SAFE (7233). Help for all kinds of crisis is available at crisistextline.org, if you are in crisis text HOME to 741741.

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Mercer County Sheriff's officer returns to work despite wife's death still under investigation - The Trentonian

Will Trump Be the Death of the Goldwater Rule? – The New Yorker

At his rally in Phoenix on Tuesday night, Donald Trump remarked, of his decision to take on the Presidency, Most people think Im crazy to have done this. And I think theyre right.

A strange consensus does appear to be forming around Trumps mental state. Following Trumps unhinged Phoenix speech, James Clapper, the former director of national intelligence, said on CNN, I really question his fitness to be in this office, describing the address as scary and disturbing and characterizing Trump as a complete intellectual, moral, and ethical void. Last week, following Trumps doubling-down on blaming many sides for white-supremacist violence in Charlottesville, Senator Bob Corker, a Republican of Tennessee, said that the President has not yet been able to demonstrate the stability, nor some of the competence, that he needs to lead the country. Last Friday, Representative Zoe Lofgren, a Democrat of California, introduced a resolution urging a medical and psychiatric evaluation of the President, pointing to an alarming pattern of behavior and speech causing concern that a mental disorder may have rendered him unfit and unable to fulfill his Constitutional duties. Lofgren asked, in a press release, Does the President suffer from early stage dementia? Has the stress of office aggravated a mental illness crippling impulse control? Has emotional disorder so impaired the President that he is unable to discharge his duties? Is the President mentally and emotionally stable?

The class of professionals best equipped to answer these questions has largely abstained from speaking publicly about the Presidents mental health. The principle known as the Goldwater rule prohibits psychiatrists from giving professional opinions about public figures without personally conducting an examination, as Jane Mayer wrote in this magazine in May . After losing the 1964 Presidential election, Senator Barry Goldwater successfully sued Fact magazine for defamation after it published a special issue in which psychiatrists declared him severely paranoid and unfit for the Presidency. For a public figure to prevail in a defamation suit, he must demonstrate that the defendant acted with actual malice; a key piece of evidence in the Goldwater case was Facts disregard of a letter from the American Psychiatric Association warning that any survey of psychiatrists who hadnt clinically examined Goldwater was invalid.

The Supreme Court denied Facts cert petition, which hoped to vindicate First Amendment rights to free speech and a free press. But Justice Hugo Black, joined by William O. Douglas, dissented, writing, The public has an unqualified right to have the character and fitness of anyone who aspires to the Presidency held up for the closest scrutiny. Extravagant, reckless statements and even claims which may not be true seem to me an inevitable and perhaps essential part of the process by which the voting public informs itself of the qualities of a man who would be President.

These statements, of course, resonate today. President Trump has unsuccessfully pursued many defamation lawsuits over the years, leading him to vow during the 2016 campaign to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. (One of his most recent suits, dismissed in 2016, concerned a Univision executives social-media posting of side-by-side photos of Trump and Dylann Roof, the white supremacist who murdered nine black churchgoers in Charleston, South Carolina, in 2015; Trump alleged that the posting falsely accused him of inciting similar acts.)

The left-leaning psychiatric community was shamed by the Fact episode for having confused political objection and medical judgment, and came under pressure from the American Medical Association, whose members had largely supported Goldwater over Lyndon Johnson. The A.P.A. adopted the Goldwater rule in 1973; Dr. Alan Stone, my colleague at Harvard Law School, was at the time the only member of the A.P.A.s board to oppose the rule, as a denial of free speech and of every psychiatrist's God-given right to make a fool of himself or herself. Stone, who has served on the A.P.A.s appeals board, told me that a few members over the years have been sanctioned or warned for Goldwater-rule violations, but that the A.P.A. eventually gave up enforcing it, because of the difficulty of providing due process to the accused.

The psychoanalyst Justin Frank, a clinical professor at George Washington University, simply resigned from the A.P.A. in 2003 before publishing his book Bush on the Couch. He went on to write Obama on the Couch, and is now at work on Trump on the Couch. Frank says that the Goldwater rule forces psychiatrists to neglect a duty to share their knowledge with fellow-citizens. I think its fear of being shunned by colleagues, he told me. Its not about ethics. Had he examined Trump, of course, he would be bound by confidentiality not to speak about him. But Frank believes that restraining psychiatrists from speaking about a President based on publicly available information is like telling economists not to speak about the economy, or keeping lawyers from commenting on legal cases in the public eye.

The A.P.A. reaffirmed and arguably expanded the Goldwater rule in March, stating that it applies not only to a diagnosis but also to an opinion about the affect, behavior, speech, or other presentation of an individual that draws on the skills, training, expertise, and/or knowledge inherent in the practice of psychiatry. The upshot is the attempted removal of more than thirty-seven thousand A.P.A. members from a key public conversation, during a moment when their knowledge and authority might aid the public in responsibly assessing the President. The other major mental-health professional organization, the American Psychological Association, with double the membership, also reconfirmed its version of the Goldwater rule. The much smaller American Psychoanalytic Association told its more than three thousand members last month to feel free to comment about political figuresa reprieve more symbolic than practical, since many members concurrently belong to the American Psychiatric Association.

Some assume that simply opting out of voluntary membership in a professional organization frees a person to speak. But versions of the Goldwater rule exist in state licensing-board standards for psychologists and physicians. Some states adopt wholesale the American Psychological Associations ethical principles as their standard of conduct for licensed psychologists, or have provisions warning that physicians can face disciplinary action for violating a professional medical associations code of ethics. Dr. Leonard Glass, who practices in one such state, Massachusetts, observed last month, in the Boston Globe , that even if nobody has actually lost his or her license for violating the Goldwater rule, it is not trivial to be reported to your licensing board for an ethics violation. This restraint on speech may violate the First Amendment, because, by speaking, practitioners stand to attract state censure, not just disapproval by private organizations. (Disclosure: As a lawyer, I have considered a potential lawsuit based on this First Amendment claim.) It is especially odd to see a muzzling of speech about political figures and elected officials when it is routine for mental-health experts in legal cases to offer opinions based on information from files, without an in-person examinationfor example, to help assess how dangerous a person is.

A congressional bill introduced in April proposes establishing a commission to oversee Presidential capacity, laying down a path that the Twenty-fifth Amendment allows for involuntary removal of a President. Section 4 of that Amendment provides that a congressionally appointed body can determine that the President is unable to discharge the powers and duties of his office. Psychiatrists participation in this constitutional process will depend on their appetite for professional opprobrium.

After Trumps fire and fury remarks about North Korea, earlier this month, Dr. Bandy Lee, a professor of psychiatry at Yale Medical School, sent her second letter about Trump to all members of Congress, warning that his severe emotional impediments pose a grave threat to international security. Four colleagues joined her this time, but, she told me, In the beginning, I was trying to write letters to Congress members and I couldnt get anyone to sign on, even though nobody disagreed. Her book, The Dangerous Case of Donald Trump, forthcoming in October, collects essays by more than a dozen mental-health experts and makes the case that the Trump Presidency is an emergency that not only allows but may even require psychiatrists to depart from the Goldwater rule. Seeking contributors, Dr. Lee was mindful that most colleagues would be nervous walking the tightrope, so she approached prominent writers who might have enough stature to withstand criticism, including Philip Zimbardo, Judith Herman, Robert Jay Lifton, and Gail Sheehy. (Next month, Dr. Lee will have a closed meeting with several as-yet-unnamed lawmakers to advise them on how Congress might convene mental-health professionals to review the Presidents state of mind.)

Many Presidents in our history appear to have served while managing various forms of mental illness, including depression, anxiety, social phobia, and bipolar disorder. President Ronald Reagans staff, for example, worried about signs of dementia. Concerned about Richard Nixons paranoia and heavy drinking in his last days in office, his Defense Secretary is claimed to have told the Joint Chiefs to disregard any White House military orders. But Trump is the only President to be the subject of sustained public discussion about his mental competence and fitness for office.

The Constitution contemplates, by virtue of the First Amendment, that we may freely raise concerns about elected officials, and also that in the extreme circumstance envisioned in the Twenty-fifth Amendment, medical professionals would be free to help us understand whether the President can fulfill his duties. If those who know most are the least free to speak, neither Amendment can function properly. The Goldwater rule was an overreaction to psychiatrists wielding their professional badge to do politics. Today, the profession risks protecting itself from the taint of politics by withholding expertise from a vital public debatea situation that seems no less irresponsible.

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Will Trump Be the Death of the Goldwater Rule? - The New Yorker