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When Someone Takes The Fifth, What Does That Mean?

The next clause of the Fifth Amendment to the Constitution of the United States of America, is the protecting against self-incrimination. This provision states that no person "shall be compelled in an criminal case to be a witness against himself." This has and still creates a massive amount of litigation. What does it mean to be compelled? If a person is being investigated for a crime, when does the right kick in? During trial? During interrogation? How does the Fifth Amendment mesh with the Sixth Amendment right to counsel?

Bear with us for one moment as we explore, momentarily, the history and origin of the Fifth Amendment. For approximately 150 years, the Courts of Star Chamber and High Commission, which were British courts of equity operated with a lot of impunity and acted as supervisory body over the lower courts. The members of that Court were members of the king's advisory body or judges drawn for courts of common law.

Eventually, under Henry VIII (the natural trouble maker), the Court of Star Chamber became a court of original jurisdiction. The Court could order torture, prison sentences, and fines and it began to be used as a way to oppress political opposition. Court, though originally open to the public, became secret and assessed severe punishments. The Courts of Star Chamber began to be used as a parliament substitute. This led to vile hatred of these courts.

Finally, in 1641, the Parliament abolished the Star Chamber courts and common law courts began to adopt this tenant of law: nemo tenetur, which means that no man should be bound to accuse himself. By the time the colonies were established, this doctrine had become well engrained in common law. Eventually, it became so engrained into common law in the colonies and in the first 9 States, that it became a integral part of the Bill of Rights.

Stay tuned as we explore several interesting areas of the Fifth Amendment. If you have been charged with a serious crime, including allegations of sexual crimes, contact a Plano criminal defense lawyer today.