Clarification of Answer by
leapinglizard-ga
on
07 Apr 2005 18:26 PDT
Additional matters that fall outside the scope of the original question
should not generally be addressed in Clarifications, but I'll make an
exception here because I can answer these with relative ease. You can
provide recompense, if you like, when you rate my answer.
1.
There is no precedent for damages being awarded for a Miranda
violation. By definition, Miranda covers only the admissibility of
evidence. For other abuses, such as assault or unlawful confinement,
you should seek relief under other laws. This principle has been affirmed
repeatedly in the courts, most recently in Chavez.
The Elstad Court made it clear that where there is a noncoercive
Miranda violation, the remedy is limited to the suppression of
the unwarned statement.
FBI: Edward M. Hendrie: Beyond MIranda
http://www.fbi.gov/publications/leb/1997/mar976.htm
It follows that police do not violate a suspect's constitutional
rights (or the Miranda rule) by negligent or even deliberate
failures to provide the suspect with the full panoply of warnings
prescribed by Miranda. Potential violations occur, if at all,
only upon the admission of unwarned statements into evidence
at trial. And, at that point, [t]he exclusion of unwarned
statements ... is a complete and sufficient remedy for any
perceived Miranda violation. Chavez, 538 U.S. at 790.
Duke Law: Supreme Court Online: United States v. Patane (June 28, 2004)
http://www.law.duke.edu/publiclaw/supremecourtonline/editedCases/Univpat.html
2.
The Due Process clauses in the Fourth and Fifteenth Amendments
respectively are very similar but not quite identical. The exact
difference between them has long been a subject of legal debate. This is
one of the subjective areas of the law where the skill of the lawyers
and the opinion of the judges decides the matter rather than any hard
and fast principle. No one can say whether a Chavez suit filed solely
under the Fifth Amendment would have had equal or lesser merit in the
eyes of the Supreme Court, since this is a hypothetical scenario in which
the justices would respond subjectively and perhaps inconsistently. It
would have altered the form of the case in a small way, of course,
but its content would have been essentially the same.
''It may prevent confusion, and relieve from repetition, if we
point out that some of our cases arose under the provisions of
the Fifth and others under those of the Fourteenth Amendment to
the Constitution of the United States. While the language of
those Amendments is the same, yet as they were engrafted upon
the Constitution at different times and in widely different
circumstances of our national life, it may be that questions may
arise in which different constructions and applications of their
provisions may be proper.'' [French v. Barber Asphalt Paving Co.,
181 U.S. 324, 328 (1901)]
The most obvious difference between the two due process clauses is
that the Fifth Amendment clause as it binds the Federal Government
coexists with a number of other express provisions in the Bill
of Rights guaranteeing fair procedure and non-arbitrary action,
such as jury trials, grand jury indictments, and nonexcessive
bail and fines, as well as just compensation, whereas the
Fourteenth Amendment clause as it binds the States has been held
to contain implicitly not only the standards of fairness and
justness found within the Fifth Amendment's clause but also to
contain many guarantees that are expressly set out in the Bill
of Rights. In that sense, the two clauses are not the same thing,
but insofar as they do impose such implicit requirements of fair
trials, fair hearings, and the like, which exist separately from,
though they are informed with, express constitutional guarantees,
the interpretation of the two clauses is substantially if not
wholly the same.
FindLaw: U.S. Constitution: Fifth Amendment
http://supreme.lp.findlaw.com/constitution/amendment05/11.html
If you were to file a due process claim, which clause would
you use - the Fifth or Fourteenth? Well, I've said previously
that I think the Fifth is more about substantive due process
and the Fourteenth is more about procedural due process, but
that's just my interpretation. The correct answer is it depends
on your interpretation, and most importantly, your stance toward
incorporation, how much of the Bill of Rights is covered by the
Fourteenth Amendment. Remember that the Fifth was only intended
to apply toward the federal government, but the Fourteenth made
it binding on the states.
North Carolina Wesleyan College: Mark Stevens: Due Process of Law
http://faculty.ncwc.edu/mstevens/410/410lect06.htm
Perhaps the best way to decide whether you should argue your claim
under the Fifth or Fourteenth Amendment is to consider the context of
the Due Process clause in each. The Fifth speaks of the trial process,
whereas the Fourteenth deals with the states making and enforcing laws.
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 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.
Fourteenth Amendment: All persons born or naturalized in
the United States, and subject to the jurisdiction thereof,
are citizens of the United States and the State wherein they
reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty,
or property, without due process of law.
In the case of the trailer-park operator who won a judgment against the
county inspector based on Due Process under the Fifth Amendment, it seems
to me that his lawyer could just as well have relied on the Fourteenth
Amendment, although the argument would then have differed somewhat. The
question of which to cite is largely, I would say, a matter of taste.
leapinglizard
