Date: | 7/13/2010 12:29:40 PM |
From: | |
To: | Dewey, Richard |
Subject: | 5th and 6th Amendment Question |
Hello Mr. Dewey,
I am having a difficult time understanding the difference between the Fifth and Sixth Amendment. I can not quite figure out what the paragraph is fully saying on page 188 under the heading "Right to Counsel..."
This is the only question I missed on the test. In the text, it is stated that the Sixth Amendment "does not hinge on the issue of custody." Therefore, from my understanding, it seemed that the Sixth Amendment did not apply until Fellers was indicted by a grand jury. Thus, the difference does not depend on custody, but guilt. Could you please explain this to me further?
What exactly did the police do wrong in this case? How were Fellers rights violated?
I appreciate your time.
MR. DEWEY’S INPUT
I’m going to start with the Grand Jury since this plays into this question. The Grand Jury is an independent panel that reviews the evidence presented by the prosecutor. The proceedings are held in secret, the defendant has no right to be there, there is no cross-examination of the witnesses and there is no judge there controlling the proceedings. If the Grand Jury, by a simple majority, deems it is more likely than not that a certain person committed a certain crime (Probable Cause), they file an INDICTMENT with either a Federal Magistrate (federal crimes) or the clerk of courts office (state crimes). The INDICTMENT is nothing more than the formal charges against an individual which will result in a warrant being issued for the arrest of the defendant. The Grand Jury does NOT determine guilt or innocence, but just determines there is enough evidence to proceed forth to trial.
Once the INDICTMENT is filed and the warrant issued, the 6th Amendment rights apply. One of those 6th Amendment rights is the right to counsel. That is automatic. The U.S. Supreme Court has decided in many cases that a Grand Jury...