Louisiana Revised Statutes 14:79 makes it a crime to violate a protective order. The statute prohibits the following conduct:

A. (1)(a) Violation of protective orders is the willful disobedience of a preliminary or permanent injunction or protective order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151, R.S. 46:2171 et seq., R.S. 46:2181 et seq., Children's Code Article 1564 et seq., Code of Civil Procedure Articles 3604 and 3607.1, or Code of Criminal Procedure Articles 320 and 871.1 after a contradictory court hearing, or the willful disobedience of a temporary restraining order or any ex parte protective order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151, R.S. 46:2171 et seq., criminal stay-away orders as provided for in Code of Criminal Procedure Article 320, Children's Code Article 1564 et seq., or Code of Civil Procedure Articles 3604 and 3607.1, if the defendant has been given notice of the temporary restraining order or ex parte protective order by service of process as required by law.

(b) A defendant may also be deemed to have been properly served if tendered a certified copy of a temporary restraining order or ex parte protective order, or if tendered a faxed or electronic copy of a temporary restraining order or ex parte protective order received directly from the issuing magistrate, commissioner, hearing officer, judge or court, by any law enforcement officer who has been called to any scene where the named defendant is present. Such service of a previously issued temporary restraining order or ex parte protective order if noted in the police report shall be deemed sufficient evidence of service of process and admissible in any civil or criminal proceedings. A law enforcement officer making service under this Subsection shall transmit proof of service to the judicial administrator's office, LouisianaSupreme Court, for entry into the Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after making service, exclusive of weekends and holidays. This proof shall include, at a minimum, the case caption, docket number, type of order, serving agency and officer, and the date and time service was made.

(2) Violation of protective orders shall also include the willful disobedience of an order of protection issued by a foreign state.

(3) Violation of protective orders shall also include the willful disobedience of the following:

(a) An order issued by any state, federal, parish, city, or municipal court judge, magistrate judge, commissioner or justice of the peace that a criminal defendant stay away from a specific person or persons as a condition of that defendant's release on bond.

(b) An order issued by any state, federal, parish, city, or municipal court judge, magistrate judge, commissioner or justice of the peace that a defendant convicted of a violation of any state, federal, parish, municipal, or city criminal offense stay away from any specific person as a condition of that defendant's release on probation.

(c) A condition of a parole release which requires that the parolee stay away from any specific person.

(d) An order issued pursuant to R.S. 46:1846.

(4) Violation of protective orders shall also include the possession of a firearm or carrying a concealed weapon in violation of R.S. 46:2136.3, the purchase or attempted purchase of a firearm, and the carrying of a concealed weapon in violation of R.S. 14:95.1, 95.1.3, or 95.10.

The short version of all of that is: if a protective order has been issued ordering you not to contact, harass, etc…another person, any violations of that protective order can result in you facing civil contempt charges in the protective order proceeding as well as a new criminal proceeding.

A first offense violation of a protective order charge which did not involve the use of violence carries a penalty range of a fine of up to $500 and imprisonment up to 6 months. A second offense which does not involve violence carries a penalty range of up to $1,000 and imprisonment for not less than 14 days nor more than 2 years.

If the violation does involve violence, the penalty range for a first offense is a fine of not more than $1,000 and imprisonment for not less than 3 months nor more than 2 years. A second offense carries a penalty range of a fine of not more than $2,000 and imprisonment for not less than one year nor more than 5 years.

If you or someone you know is facing charges for violating a protective order, give us a call at (318) 459-9111 to set up a consultation.

In these strange times, there are a lot of rumors about what actions the governor has taken so far and what obligations Louisianans have to comply with his executive orders.

Louisiana Revised Statutes Title 29, Section 724 establishes the powers of the governor. Subsection (A) states that “[t]he governor is responsible for meeting the dangers to the state and people presented by emergencies or disasters, and in order to effectuate the provisions of this Chapter, the governor may issue executive orders, proclamations, and regulations and amend or rescind them.” It also establishes that these orders “shall have the force and effect of law.” Subsection (B) requires that the governor declare a state of emergency by executive order or proclamation. If the governor has declared a state of emergency,

The governor has issued 4 proclamations or executive orders since March 11, 2020, which regulate or limit the behavior of citizens of Louisiana. Proclamation 25 JBE 2020 declared a state of emergency beginning on March 11 and extending through April 9, 2020. It specifically prohibited “price-gouging” during the state of emergency.

The second Proclamation (JBE 2020 - 27) limited gatherings to less than 250 people, closed schools, and suspended some legal deadlines with regard to sex offender registration determinations for out-of-state convictions and concealed handgun permits as well as suspending some fees and expiration deadlines at the DMV.

The third proclamation was issued on March 16, 2020, and limited gatherings to less than 50 people; closed movie theaters, bars, bowling alleys, and gyms; closed restaurants except for take-out or delivery services; suspended multiple legal deadlines in both civil and criminal cases; allows for local law enforcement to establish curfews should they deem them necessary; and suspends additional expiration dates with the DMV.

The most recent proclamation issued yesterday afternoon and effective at 5 p.m. today (33 JBE 2020) cancels all gatherings of 10 or more people and issues a “general stay-at-home order” for all citizens who are not performing an “essential activity.” Essential activities are activities which “are for the purpose of obtaining food, medicine, and other similar goods necessary for the individual or a family member of the individual,” “obtaining non-elective medical care…,” going to and from work if that work is deemed essential, going to and from the home of a family member, going to and from an individual’s place of worship, or engaging in an outdoor activity (provided social distancing measures are also adhered to). The proclamation further closes all places of public amusement (that weren’t already closed), personal care and grooming businesses (including hair salons and spas), and malls. Any businesses not essential and not prohibited are ordered to operate subject to the 10-person minimum and comply with social distancing. All state office buildings are also ordered closed to the public. This proclamation is in effect through April 13 unless terminated earlier or extended.

Subsection (E) of La. R.S. 29:724 establishes that “any person or representative of any firm, partnership, or corporation violating any order, rule or regulation promulgated pursuant to this Chapter, shall be fined not more than $500 or confined in the parish jail for not more than 6 months, or both.” This offense is a misdemeanor.

Gilmer & Giglio is a two-person law firm, so we are not closed subject to this proclamation. We are, however, doing what we can to flatten the curve by cancelling all in-person meetings. Further, we are, to the extent possible, working from home. We are reachable via telephone at (318) 459-9111 during normal business hours and via e-mail through email at our contact us page. Be smart, stay home, stay safe, and stay healthy and call us if you need us.

Domestic Abuse Battery is defined in Louisiana Revised Statutes 14:35.3. It prohibits the use of force or violence upon a household or family member without their consent. A household member is defined as “any person presently or formerly living in the same residence with the offender and who is involved or has been involved in a sexual or intimate relationship with the offender, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides.” A family member is defined as, “spouses, former spouses, parents, children, stepparents, stepchildren, foster parents, and foster children.”

A first or second offense of domestic abuse battery is a misdemeanor; however, certain allegations will raise the penalty range to a felony. If a child under the age of 13 is present in the home at the time of the incident; if the victim of the domestic abuse battery is pregnant and the offender knows the victim is pregnant; if the battery involves strangulation; or if the battery involves burning, the penalty range increases to a maximum term of imprisonment of 3 years.

If the battery involves burning and inflicts serious bodily injury, then the penalty range changes to imprisonment at hard labor for not less than 5 years nor more than 50 years without benefit of probation, parole, or suspension of sentence.

The statute also increases the penalty range to a maximum term of imprisonment of 8 years if the battery results in serious bodily injury.

If you or someone you know is facing charges of domestic abuse battery, give us a call at (318) 459-9111 to set up a consultation.

Everyone knows that if you are arrested for Domestic Abuse Battery (DAB) or Violation of a Protective Order (VPO) and are found guilty that there will be criminal consequences, which can include a fine, imprisonment, and/or probation which can also include community service requirements, anger management classes, and substance abuse evaluations or treatment.

What many people don’t realize is that there are additional consequences that can result from a DAB or VPO conviction and some can even result from an arrest for one of these charges.

Last week we let you know about the Gwen’s Law hearing that may be required if you are arrested for DAB before you can be released on bond. In addition, if you are released on bond, there will often be a protective order or no-contact order issued as part of the conditions of your bond. A violation of this order can cause your bond to be revoked or for you to be charged with a new VPO offense.

An arrest for DAB or VPO can also restrict your ability to possess a firearm while out on bond and a conviction for DAB or VPO will restrict your gun rights for, at a minimum, the duration of your probation, and potentially beyond.

If you or someone you know has been arrested for a domestic abuse battery or a violation of a protective order, give us a call to set up a consultation at (318) 459-9111.

Gwen’s Law refers to Louisiana Code of Criminal Procedure Article 313. It took effect in 2017 and now allows for a hearing before bail is set if the person has been arrested for certain offenses. If that individual was arrested for domestic abuse battery, violation of a protective order, staling, or any other felony offense that involves the use of force or a deadly weapon upon a family member, he must appear before a judge for a hearing to have his bail set. The hearing must be held within 5 days of the arrest, but does not include legal holidays or weekends in that calculation of time.

The court must consider all regular bail considerations but when Gwen’s Law is applicable, must also consider the following factors in setting bail:

• The criminal history of the defendant;

• The potential threat or danger the defendant poses to the victim, the family of the victim, or to any member of the public, especially children; and

• Documented history or record of any of the following: substance abuse by the defendant; threats of suicide by the defendant; the defendant’s use of force or threats of force against any victim; strangulation, forced sex, or controlling the activities of any victim by the defendant; or threats to kill.

After the hearing, the court may refuse bail if there is clear and convincing evidence that the defendant is a flight risk or that he poses a danger to any other person or the community. If bail is granted, the court may order electronic monitoring for the defendant and/or house arrest.

If you or someone you know has been arrested and is awaiting a Gwen’s Law hearing, call us at (318) 459-9111 to request a consult.

Last week we warned you about those alcohol-related offense that can get you into trouble during Mardi Gras. Today, we’d like to take a minute to warn you away from reenacting those scenes from Mardi Gras on tv and movies.

Shreveport-Bossier’s Mardi Gras is a little more family-friendly than the version of Mardi Gras you’ll find on Bourbon Street in New Orleans. Be aware that it is a crime in Louisiana to expose a women’s breasts to the public view (La. R.S. 14:106(A)(1)). The penalty for a violation of this statute is a felony conviction with a fine ranging from $1,000 to $2,500 and imprisonment for not less than 6 months nor more than three years.

When you’re shouting, “Throw me something, Mister!” make sure you keep your requests rated G and have a great time at the parades this weekend!

During Mardi Gras season, we often see a large uptick in the number of arrests for alcohol-related offenses. This means a rise in arrests for Driving While Intoxicated, Public Drunkenness, Disturbing the Peace and Resisting an Officer offenses.

First and second offense DWI and the other offenses listed above are misdemeanor offenses, but they carry penalty ranges ranging up to 6 months in jail and fines.

Disturbing the Peace includes fighting, being drunk in public, and what has often been termed: “fightin’ words”. It carries a penalty range of up of a $100 fine and imprisonment up to 90 days. Public Drunkenness carries a penalty of up to a $200 fine and imprisonment for up to 7 days.

Driving While Intoxicated prohibits the operation of a motor vehicle on a public roadway while the operator is impaired as a result of a controlled substance or an alcohol beverage. It carries penalties including mandatory jail time unless the person convicted is placed on probation and completes community service and court-ordered substance abuse treatment. An arrest for DWI also often results in the suspension of the arrestee’s driving privileges with requirements that he obtain SR-22 proof of insurance and also an ignition interlock device for any vehicle he operates.

Enjoy yourselves at Mardi Gras this year, friends, but be careful! If you or someone you know ends up on the wrong side of the criminal law this season, call us at (318) 459-9111

North Louisiana Mardi Gras has started! January saw the Krewes of Sobek and Harambe parades, and February brings with it an abundance of additional parades and experiences for those so inclined. Shreveport’s Other Side has published a useful guide to all the Shreveport/Bossier festivities.

We’d like to cover some basic legal ground rules to ensure you and your family and friends have a safe and arrest-free Mardi Gras:

1. Many roads will be closed on parade days. Driving down a closed road or around a police barricade is a crime under state law. La. R.S. 32:237 prohibits the tampering with, moving, or disobeying the instructions of any barricade or sign or signal placed upon any highway (note: highways means basically anything not a private drive, parking lot, or private road).

2. Many neighborhood roads, particularly in Broadmoor and Highland will have signs posted prohibiting parking on one side of the street on parade days. This prohibition is to ensure, as much as possible, the free flow of traffic on parade days. It is a crime to disobey signs regulating parking under La. R.S. 32:144.

3. The Shreveport City Code gets in on the act and prohibits the obstruction of public passages, or standing and walking in roadways. Be mindful of where you stand and walk when leaving parade locations. Shreveport City Ordinance 50-140.

4. It is a violation of the Shreveport City Code to be drunk in public, use profane language, urinate or defecate in public places, and spit. Shreveport City Ordinance 50-155 - 157. In general, be mindful of your behavior and don’t be a nuisance.

5. And finally, be aware that being drunk in public is also a crime, and so is disobeying law enforcement. Flight from an Officer, Resisting an Officer, and Interference with an Officer are very common arrests during Mardi Gras season.

Enjoy yourselves at the Parades, but be careful, and if you or a family member need help after a parade, gives us a call at (318) 459-9111.

In Louisiana, a person convicted of a felony may lose two very important rights: (1) the right to vote and (2) the right to possess a firearm.

Under new legislation passed in the last few years, a person convicted of a felony regains his right to vote automatically upon release from supervision. This means that as long as the person convicted of a felony is no longer in custody or on probation or parole, his right to vote has been restored. Because voter rolls are sometimes purged after a certain period of time, once the individual has been released from supervision, he should check with his local Registrar of Voters to ensure that he is registered to vote.

With regard to the right to possess a firearm, both Louisiana and the federal government have prohibitions against the possession of a firearm by a convicted felon.

In Louisiana, only certain charges criminalize the possession of a firearm by any person convicted of or found not guilty by reason of insanity for:

• Crimes of violence listed in La. R.S. 14:2(B) which are felonies;

• Simple Burglary;

• Burglary of a Pharmacy;

• Burglary of an Inhabited Dwelling;

• Unauthorized Entry of an Inhabited Dwelling;

• Felony Illegal Use of a Weapon or Dangerous Instrumentality;

• Manufacture or Possession of a Bomb;

• Possession of a Firearm While in the Possession of or During the Sale of Controlled Dangerous Substances;

• Any sex offense as defined in La. R.S. 15:541; or

• Any attempt to commit any of the above offenses.

(La. R.S. 14:95.1). This statute only prohibit such possession for 10 years from the completion of any sentence. After that 10-year-period, the right to possess a firearm is restored under Louisiana law.

Unfortunately, Federal law prohibits, with no restoration, the right to possess a firearm by anyone convicted of a felony under State or Federal law. As a result, no matter the above reinstatement, federal law will still prohibit the possession of a firearm by a convicted felon.

Although there has been some movement by the Louisiana legislature to amend state law regarding the possession of firearms by individuals who have expunged their records, the effect of those laws on the federal prohibition has not been tested.

The only guaranteed way to restore one’s gun rights under federal law is to apply for and receive a Governor’s Pardon With Restoration of Gun Rights.

The process for filing for an expungement can be lengthy.

The beginning of the process requires the applicant to request a background check, which usually takes approximately 30 days for Louisiana State Police to provide. Once the expungement motion is filed, the State has 60 days to file an objection. Once that 60-day window has passed, the Court will set the matter for a hearing to determine whether the applicant is entitled to an expungement. If the Court finds that the applicant is entitled to an expungement, he will sign the order. Once the order is signed, the expungement is granted; however, there is usually a period of time after the order is signed, but before the order has been complied with by the various agencies who maintain records.

The entire process takes anywhere from 6 to 9 months.

Articles 893 and 894 of the Louisiana Code of Criminal Procedure in their broadest sense allow for the suspension and deferral of a sentence (and probation) in a criminal case. More specifically, under certain circumstances, they allow a conviction to be set aside after the defendant serves a period of probation satisfactorily. This opens up the charge for expungement.

Article 893:

Article 893 applies to felony convictions and allows for a conviction to be “set aside and dismissed” after a term of probation if the sentencing court defers the imposition of a sentence “after a conviction for a first offense noncapital felony.” At the conclusion of the probationary period, if the defendant has completed his probation satisfactorily, he will be able to have his conviction set aside and the prosecution dismissed.

A defendant may only receive the benefits of Article 893 once and there are several exceptions to eligibility for deferral including certain violations of the Controlled Dangerous Substances Laws, sex offenses, and violent crimes.

Article 894:

Article 894 applies to misdemeanor convictions and allows for a conviction to be “set aside and dismissed” after a term of probation if the sentencing court defers the imposition of the sentence. At the conclusion of the probationary period, if the defendant has completed his probation satisfactorily, he will be able to have his conviction set aside and the prosecution dismissed.

A defendant may only receive the benefits of Article 894 once during a 5-year period (or a 10-year period for Driving While Intoxicated convictions). 

Okay, so why do I want one?

The dismissal and set aside of the conviction under either Article 893 or 894 allows the defendant to seek an expungement of the arrest record immediately and will also allow him to say that he has never had a criminal conviction (assuming an otherwise clean record) for most purposes.

If he goes through with expungement, he will be able to say he has never been arrested (assuming an otherwise clean record, and with some exceptions).

The benefit of an Article 893 or 894 allows an individual to maintain, for most purposes, a clean record once she has served her term of probation and to minimize the impact of a sole criminal offense on her life.

If you have been arrested, and are unsure whether you will be eligible for an 893 or 894, call us at (318) 459-9111 to schedule an appointment to discuss your case.

Louisiana Code of Criminal Procedure Article 973 states that:  “An expunged record of arrest or conviction shall be confidential and no longer considered to be a public record and shall not be made available to any person or other entity…” (La. CCrP Art. 973(A)) The effect of an expungement in Louisiana is to remove the record of an arrest from public access. It also allows an individual who has expunged his record to refuse to disclose the fact of an arrest under many circumstances.

There are some exceptions to the rules regarding disclosure after an expungement; however.

• Law enforcement and prosecutors may access the records;

• A court may order the release of the records after a hearing in which the party asking for the records to be released shows “good cause”;

• The individual whose record has been expunged may access the records;

• Multiple and various state agencies and licensing boards may access the records, including:

  • The Office of Financial Institutions;

  • The Louisiana State Board of Medical Examiners;

  • The Louisiana State Board of Nursing;

  • The Louisiana State Board of Dentistry;

  • The Louisiana State Board of Social Work Examiners;

  • The Louisiana State Board of Examiners of Psychologists;

  • The Louisiana Board of Pharmacy;

  • The Emergency Medical Services Certification Commission;

  • Louisiana Attorney Disciplinary Board;'

  • The Louisiana Supreme Court Committee on Bar Admissions;

  • The Louisiana Sate Board of Chiropractic Examiners;

  • and additional agencies who oversee individuals who care for children.

In general, an expungement will allow an individual to not disclose an arrest for most purposes and to deny any arrest or conviction unless an exception applies.

Gilmer & Giglio will be closed December 31st and January 1st to celebrate the new year. We look forward to seeing you on January 2nd.

Gilmer & Giglio will be open on a reduced schedule this week for the holidays. If you need us, please give us a call and leave a message and we will return your call as soon as possible. Thank you and we wish you and yours a wonderful holiday season!

Gilmer & Giglio will be closed Thursday, November 28th, and Friday, November 29th, to celebrate the Thanksgiving holiday with our families. We look forward to being back in the office and assisting you with your cases on Monday, December 2nd.

The Eighth Amendment to the United States Constitution contains the prohibitions against excessive bail and fines and cruel and unusual punishment. It states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment is the shortest of the sections of the Bill of Rights applicable to criminal law. It is quite simple, but has been the subject of an abundance of rulings by the United States Supreme Court due to the arguably vague nature of its prohibitions.

The Amendment prohibits the imposition of “excessive” bail or fines. This means, in practice, that the requirement of bail that may be placed on a defendant in a criminal prosecution must be limited to an amount necessary to ensure his appearance at the remainder of the criminal proceedings against him. The prohibition against excessive fines essentially requires that a defendant be fined only to the extent necessary to ensure that the Government’s interests in prosecuting the criminal defendant are met. Some of the interests put forth by the government as justifications for criminal prosecutions are: the punishment of the defendant, the prevention of any future criminal behavior by this defendant or any other individual, and rehabilitation.

Finally, the Eighth Amendment contains the prohibition against cruel and unusual punishment. This prohibition has been used most often to prohibit the methods of execution for capital (death penalty) cases. In particular, it has been used to prohibit the use of hanging and electrocution as methods of execution. Fairly regularly, cases are argued before the Supreme Court of the United States with regard to the death penalty and the prohibition against cruel and unusual punishment.

We hope you have enjoyed some brief information about the Constitution and, in particular, the Bill of Rights as applied to criminal investigations and prosecutions over the last few weeks!

The Sixth Amendment to the United States Constitution contains the most rights related to criminal defense in the Bill of Rights. It states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment’s prohibitions and requirements all pertain to the process by which a defendant may be tried in court. These rights apply to the actual trial procedure and not the process prior to the institution of prosecution.

First, it requires that a criminal defendant’s trial be “speedy” and “public.” The requirement of a speedy trial means that a defendant may not be held in jail indefinitely without his case being brought to trial. In Louisiana, our state statutes have established that the delays for bringing a case to trial are 2 years for felony prosecutions and 1 year for misdemeanors. The requirement that a defendant’s trial be public means that, under most circumstances, the defendant’s trial must be conducted in an open courtroom that may be entered by any person who would like to view the trial. There are some limitations when evidence is protected by another statute (for example: in cases involving the abuse of minors), or when a court is attempting to limit pre-trial publicity.

Second, the Sixth Amendment requires that a defendant be tried by an impartial jury. This requirement means that a defendant has the right to ask questions of the potential jurors to make sure that they are not biased against him for some reason, whether that be because of his race or gender, or because of the nature of the crime, itself. Jury selection is an incredibly important part of any trial.

The Sixth Amendment also requires that a defendant be informed of the “nature and cause of the accusation” against him. This provision requires that a defendant be advised of the crime with which he has been charged. In Louisiana, this means that a Bill of Information or Indictment is filed which contains the name of the defendant and the charge against him, including the date(s) on which the crime was allegedly committed. Further, the defendant has a right to have that document read aloud to him at his arraignment so he can enter a plea of either guilty or not guilty to the charge.

The Sixth Amendment also requires that a criminal defendant have the right of confrontation and compulsory process. This means that a criminal defendant must be entitled to cross examine his accuser at the time of his trial. The individual who has accused the defendant of a crime must be present in court to testify under oath to the facts that lead that person to believe that the defendant committed the offense, whether that be a victim or a law enforcement officer. Further, a defendant is allowed to call witnesses to testify on his behalf. He can also issue subpoenas (compulsory process) requiring them to appear in court to testify on his behalf if they are unwilling or unable to attend court voluntarily.

Finally, the Sixth Amendment requires that a defendant have the right to counsel. This right is contained in the second half of the Miranda warnings in which an arrestee is advised that she “has the right to an attorney,” and “if she cannot afford an attorney, one will be appointed to represent” her. This right does not apply until the arrestee has been charged with a crime, meaning that the arrestee is not necessarily entitled to an attorney during an interrogation; however, if the arrestee tells the police that he does not want to speak to them until he has an attorney, the interrogation is not allowed to continue until an attorney has been appointed to or retained by the criminal defendant. This requirement also means that a criminal defendant is entitled to an attorney who can represent him at all stages of the trial proceeding, from arraignment through trial and sentencing if she is convicted.

Next week: the Eighth Amendment’s prohibitions against excessive fines and bail and cruel and unusual punishment.

The Fifth Amendment to the United States Constitution is also found in the Bill of Rights and makes multiple requirements of the government in criminal prosecutions. The Fifth Amendment provides:

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 has the almost the largest number of rights that apply to criminal cases, second only to the Sixth Amendment, which we’ll discuss next week.

The Fifth Amendment requires that, in (most) federal prosecutions, a defendant must be indicted by a grand jury. This means that a group of people from the jurisdiction of the Court must meet and must hear the allegations brought against the defendant and decide that there is sufficient evidence to move forward with a prosecution before the defendant can be officially charged with a crime. This applies to all capital “or otherwise infamous” crimes which, in practice, means if you are being prosecuted in federal court, you have been indicted by a grand jury.

The Fifth Amendment also prohibits a defendant being tried for the same crime more than once: double jeopardy. This requirement means that once a person has been acquitted of a crime, he cannot be prosecuted for the same crime in the same jurisdiction. There are some limitations to this: if a defendant has been tried, but that trial ended in a mis-trial, or if the offense is a crime under both state and federal law, in which case the defendant can be prosecuted in both state and federal court.

The Fifth Amendment’s third prohibition is the right against self-incrimination. This right is depicted in every police procedural on television when the police advise the arrested person that she “has the right to remain silent and not answer any questions.” This prohibition also means that a criminal defendant cannot, unlike other witnesses, be compelled to testify when he is on trial. When a person “pleads the Fifth,” this is the section of the Amendment to which she is referring.

Finally, the Fifth Amendment establishes that a criminal defendant has a right to “due process.” Due Process is a very broad term that encompasses a multitude of other rights, which basically boil down to requirements that do not allow the government to put the defendant in jail and throw away the key without a trial.

Next week: the Sixth Amendment and speedy trials, impartial juries, and the confrontation clause, among others!