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Chapter 4 · Due Process — the Fifth and Sixth Amendments
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From the page before
Police generally need a warrant to search the contents of a mobile phone taken during an arrest. Why?
The answer: The quantity and intimacy of data on a phone makes it unlike ordinary pocket contents
Why: A phone holds far more of a person's life than a wallet or a set of keys. That is why it sits in a class of its own.
What happens between accusation and verdict
The Fifth
The right to stay silent. You cannot be forced to be a witness against yourself. This is true whether or not anyone read you a warning. Using the right is not evidence of guilt.
Double jeopardy. After you are found not guilty, the same government cannot try you again for the same crime. Note the words *same government.* A state and the federal government count as separate. That is why a state acquittal does not always end a federal case.
Due process. Government may not take your life, your liberty, or your property without it.
Takings. Private property cannot be taken for public use unless you are paid a fair price.
The Sixth
A speedy and public trial. A fair jury. Notice of what you are charged with. The right to face the witnesses against you. The power to make your own witnesses show up. And the help of a lawyer.
*Gideon v. Wainwright* (1963) settled the last one. A defendant too poor to hire a lawyer must be given one, because a fair trial is not possible without one.
The part the amendments do not describe
Most American convictions do not come from a trial. They come from a plea bargain.
The trial right still shapes that deal. Its strength is what a defendant is giving up. But most people never see a courtroom in the way the Sixth Amendment pictures.
Knowing this is not cynicism. It is the gap between the system as written and the system as run, and a citizen needs both.
Two practical points
Before you turn the page
What did Gideon v. Wainwright (1963) establish?
Which is the clearest invocation of the right to counsel?
Trying to recall a thing before you read it again is what makes it stick. That is why the question is here.
Nothing is scored. Nothing is saved. No one sees your answer, and there is no account to make.