Fifth Amendment A Grammatical Appraisal
When someone mentions "The Fifth Amendment" what usually comes to mind is the supposed right against compulsory self-incriminating testimony. Thus when people say, "I take the Fifth" they are referring to the Fifth Amendment of the United States Constitution. But do they fully comprehend the text and meaning of the Fifth Amendment to which they refer?
Much has been written and said about the Fifth Amendment, most of which is driven by the presupposition that the amendment protects a person against having to testify in a potentially self-incriminating way. American and British common law, early American lawmakers, and Supreme Court decisions are widely cited as affirming this view.
Standing in sharp contrast to the status quo within the legal community is the language of the Fifth Amendment itself. The highest law in America is the Constitution. The Constitution pays no homage to common law, nor to quotes and intentions of people. It neither bows to nor salutes decisions of the Supreme Court. The Constitution trumps all other considerations. When an entire nation misunderstands a portion of its constitution, someone should be waving red flags and sounding a clarion call for change.
In 1791, the United States Congress ratified the "Bill of Rights," comprising ten amendments to the United States Constitution. The Fifth Amendment reads as follows:
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 offence 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 discusses among other issues legal protocol as it relates to persons who are suspected, accused, or formally charged in relation to commission of a crime. We will examine the frequently exercised "right to remain silent" which most defense lawyers attribute to the Fifth Amendment. We will attempt to show that no such constitutional entitlement exists.
Let's look at the wording of the amendment. After the word "limb," there is a semicolon. Then it says, " nor shall be compelled in any criminal case to be a witness against himself " Let's stop right there. One of the biggest mistakes in American jurisprudence may be that people stop right there! The language of the amendment requires that you keep reading. After the word "himself" there is a comma, not a semicolon. This comma necessitates a connection with some or all of the next thirteen words before the next semicolon, especially the phrase: "without due process of law." In other words, the amendment does not preclude the compelling of a person to testify against himself, but rather assumes that people will be compelled to testify against themselves; the amendment instructs us as to the conducting of the testimony, namely that the witness must receive "due process." As long as the witness is apprised of any charges against him, as long as he or she is provided legal counsel, as long as all facets of due process are afforded him, then and only then may the compelled testimony proceed. Since the amendment discusses this in the context of a "criminal case," it suggests that the person is obligated to testify and even to incriminate himself in an actual trial. The text of the Fifth Amendment flies in the face of "remaining silent."
The Fifth Amendment leans more in the direction of requiring people to testify; it doesn't legalize sealed lips. Prosecutors, i.e., the government which is bringing the charges, should be allowed to call the defendant to the stand and ask him or her direct questions and expect honest, complete answers. Congress never intended that defendants or any persons who are called to testify should be exempt from facing accusers or from facing the questions of a prosecutor in the hearing of a jury or judge or both.
The concept of a so-called "right to remain silent" or "taking the Fifth" makes no grammatical sense in the context of the thirteen words which follow "himself" in the Fifth Amendment.
The amendment says, " nor be deprived of life, liberty, or property, without due process of law; " Let's look at "nor be deprived of life." This is a reference to capital punishment. Before the state can execute you, you must be provided due process of law. The death penalty may or may not be in effect in a given state; subsequently, the Fifth Amendment is not interpreted as mandating capital punishment throughout America. One could paraphrase this clause: "...nor be deprived of life without due process of law."
Now look at the word "liberty." You could reword it as follows, "nor be deprived of liberty without due process of law." You can't be tossed in jail without due process, yet every state in the union uses incarceration as a penalty. In a similar vein, the word "property" is mentioned. Your property cannot be taken from you without due process. You must be afforded the opportunity to legally defend property that belongs to you.
Linguistically, the amendment's requirement for "due process" refers back to everything that followed the previous semicolon, not just the deprivation of life, not just liberty, and not just property. According to the Fifth Amendment there are at least four situations where due process must be afforded.
The fourth one (or first) is when the government compels a person to testify against himself in a criminal case. Those who espouse that the "due process" clause does not apply to compelling someone to testify against himself, incur the burden of explaining the comma (after "himself") in lieu of a semicolon. We have observed an apparent effort at least on the Internet to skirt this grammatical burden: we were able to find dozens of websites that allegedly provide the text of the United States Constitution, yet for the Fifth Amendment, they erroneously replaced the comma after "himself" with a semicolon. Whether this replacement of the comma with a semicolon is accidental or intentional at these websites, one could only speculate. Not to worry; more than ninety percent of online sites retain the comma from the original. The original cannot be altered by editors or webmasters, intentionally or accidentally. The original is intact and unalterable unless the amendment is formally changed by Congress and the states.
The presence of the comma and the absence of a semicolon (after "himself") is at the heart of the present inquiry. The use of a comma after "himself" brings the "due process" requirement back to the issue of compelling a person to testify against himself. Once we apply the meaning of "due process" to all four situations, we see clearly that compelling someone to testify against himself is a "given" and is to be carried out in the context of due process.
Isn't it remarkable what one little period or dot would or, in effect, has accomplished? We're speaking of the dot which many people believe resides above the comma after "himself" in the Fifth Amendment, thus transforming the original comma into a semicolon, thereby fundamentally altering the meaning of the Fifth Amendment. It could be called "the invisible dot", because, though not present, people interpret the amendment as if the dot is there, treating the comma like a semicolon.
Far from providing a "right to remain silent," the Fifth Amendment provides guidance as to the proper means for examining and cross-examining witnesses in order to find truth in a criminal case.
Notice that the amendment begins with a similar provision for the state. It could be reworded as follows: "People shall be held to answer for serious crimes as long as they are formally and properly charged with the crime." The Fifth Amendment seeks for justice as much as it provides for due process and the rights of the accused. The founders of our nation wisely struck a balance between the needs of the state and the rights of those whom the state accuses of crimes. The amendment very early states that people shall be "held to answer." That appears to clash with "remaining silent" as is the frequent practice of defendants today. We seem to have turned the Fifth Amendment upside down and inside out to try and protect the accused.
When someone is sworn in as a witness in a court of law, the question is always asked, "Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?" It is expected that people will say, "I do" or otherwise affirm to speak the entire truth. This too was the intent of Congress and it applies to everyone who is alive. Congress never intended that exceptions would be made for defendants. Is the truth served by silence?
Within a proper understanding of the Fifth Amendment, if a person is called to testify (even if other than a defendant), and is asked a question which may incriminate them, the Fifth Amendment assumes that the person if afforded due process will answer fully and truthfully.
In 1966, the Supreme Court decided Miranda v. Arizona by a 5 to 4 margin. Since Miranda, defendants and others throughout the nation have been advised of their right to remain silent, to be afforded legal counsel, etc. Defendants began to employ the phrase, "On advice of counsel, I respectfully assert my Fifth Amendment right against self-incrimination," or some variation thereof. As we have seen, no such "right" emanates from the Fifth Amendment.
Since the 1970s, dictionaries have amended the definition of the word "fifth" to say that people "take the Fifth," meaning they refrain from answering, with the assumption that the Fifth Amendment of the Constitution provides such a right. Even the word "mirandize" appears in dictionaries, defined as the act of Officers of the Peace and other authority figures to advise arrested persons or people who will give testimony, that they have the right, among other things, to refrain from speaking or from answering questions, particularly if their answers may incriminate them. This "right to remain silent" or "taking the Fifth" is now embedded in American culture, taught in law schools, delineated in literature, cherished by defense attorneys, and often utilized in lieu of testifying.
There is another side to this coin. Neither the Fifth Amendment nor any state law of which we are aware, specifically mandates any government in America to compel a person to testify against themselves in a criminal case. The Fifth Amendment simply provides that when witnesses are compelled to testify against themselves, the confines of due process must be observed.
Could a prosecutor be found who was willing to use the Fifth Amendment as justification to call a defendant to the stand to face questioning? Could such a prosecutor insist on obtaining full and complete answers to questions and would a judge allow such an examination? Would the prosecutor be vilified by the legal community or would he be praised? If laws were enacted to mandate testimony from defendants, even if self-incriminatory, would not such laws be deemed in constitutional accord with the Fifth Amendment?
In summary, we ask, "Is it constitutional to 'take the Fifth?' " The paramount concern in a courtroom is to inquire into and determine the truth of a matter beyond a reasonable doubt. The task of prosecutors and judges throughout America to litigate and adjudicate criminal cases would be ameliorated if all people were required to answer all questions truthfully and to the best of their ability. If telling the truth became the law of the land, the courtrooms of America would be transformed into places where people are held accountable for their actions. When the Fifth Amendment is properly understood and practiced, victims of crime will cease to be victims of the Fifth Amendment.
"The Fifth Amendment A Grammatical Appraisal" © 2007 William D. Gwinn
William D. Gwinn graduated from Whitworth College and Fuller Theological Seminary. In high school, he excelled in four years of Latin which formed the basis for his expertise with English grammar. The father of four children, including an attorney, he was married to Colette for 58 years.
No portion of "The Fifth Amendment A Grammatical Appraisal" may be reproduced or stored in any form or by any means, except for brief quotation for the purpose of review, comment, or scholarship without written permission of Douglas Gwinn. On behalf of my Dad, Bill Gwinn, I welcome your email comments or requests for publication.
In Memorium: Please visit my page about Dad. He went to heaven on April 17, 2009.