I am writing the next book with the tentative title - "The Court's Crimes, How the Court Has Made You Less Safe"
Here is an excerpt from the chapter on the 5th Amendment:
The 5th Amendment provision concerning statements by an accused states:
“… nor shall any person … be compelled in any criminal case to be a witness against himself ….”
This, obviously, is where the right “not to be forced to testify against yourself” came from - the right to “take the fifth”. It is clear this provision was meant to protect anyone charged with a crime and on trial from being called to testify “as a witness” if they chose to remain silent. The provision makes sense because in the criminal process, under the accusatorial method, when a person is put on trial the prosecution must prove the case “beyond a reasonable doubt”. The process has protections built in so someone cannot be “railroaded” by the so-called “system” as occurs in some countries. Even though law enforcement personnel think a person is guilty of a crime, either a grand jury or a prosecution official must make a decision to file charges in order for the person to be put on trial.
You will notice the language of the Amendment does not indicate one suspected of a crime cannot be questioned before a trial in the courtroom. It does not say the suspect must be told he or she is entitled to an attorney before any questioning. It does not say that the attorney will be provided free. It does not say that before any questioning a suspect must be told he or she has those rights before answering any questions and that those rights must be waived.
In other words, it does not hinder law enforcement authorities in any way from doing their job in trying to protect the safety of the public by apprehending those who choose to engage in suspected criminal behavior.
Have you ever wondered how the language of the Amendment was applied to statements made by a suspect before the trial? You would be correct in asking yourself how the Court extended the right to the time of questioning, other than in a trial, because at that time the suspect is not under oath as he or she would be in a trial, so the suspect is not “in a criminal case [being] a witness against himself” (bracketed material added).
If the questioning is inappropriate, that is, because torture is used, the suspect is denied sleep or food, etc., the suspect can dispute the statement or confession and have a jury disregard it at the trial. The critical distinction that must be made here is that the constitutional provision speaks to a situation in which the suspect is under oath and being tried for the crime that has been charged. In a situation where questioning is occurring before the trial, the suspect is not under oath and thus can dispute anything said by contesting it, for example, claiming that a false confession occurred because of the circumstances surrounding that questioning.
If you don’t think the area of the questioning of a suspect is important, consider that law enforcement officers want to speak to the suspect as soon as possible and preferably at the police station. Oftentimes statements of the suspect lead the officers to other evidence that can be crucial in solving the crime and determining whether they have the right person. It may also be crucial in determining that they have focused on the wrong subject thereby allowing them to redirect their efforts to find the correct suspect. By remaining silent the suspect is able to defeat an investigation to determine the truth, i.e., whether a claimed alibi can be substantiated, or a claim of self-defense is supported by the evidence.
The United States Supreme Court is the body that has distorted these provisions of the Constitution. It did not allow us to amend the Constitution if we saw fit to make these changes, it established them by judicial fiat!