Expert: Paul Edward Zukowski - 5/15/2004

Question
I realize that my question may require some depth of an answer but my intent is to find the "simple" reason.

I understand that in the United States our constitution protects its citizens from having to testify against themselves in a criminal court.  I am also aware that should a defendant in a criminal allow himself to be examined he/she has the ability to evoke the 5th amendment when the question may incriminate the defendant.  I know these are true, but I do not know why.

Why is a defendant who is charged with a crime such as rape or murder protected from questions from a prosecutor?  Why does the 5th amendment offer such protection?  What does society as a whole gain from that protection?  What history was taken into consideration when the 5th amendment was written?  Does English Common law, in which our legal system is largely based, offer the same protection?

And on a side note/question.... The issue of separately defining "hate crimes" from other crimes.  Why should a penalty be greater for someone who killed a bank teller be less then someone who killed a gay man only because the victim was gay?  Is it possible to legislate morality and isn't murder murder, no matter what the reason?  I obviously have my own ideals and beliefs but I am curious as to what the opposing view points are and what is it that fuels such a debate.

So any help with these questions would be appreciated.

Thank you,  Jason


Answer
I realize that my question may require some depth of an answer but my intent is to find the "simple" reason.

> I understand that in the United States our constitution protects its citizens from having to testify against themselves in a criminal court. I am also aware that should a defendant in a criminal allow himself to be examined he/she has the ability toevoke the 5th amendment when the question may incriminate the defendant.

In practice the defendant only takes the stand if they wish too. If you do take the stand in practical terms
you have waved it. Other witnesses are more likily to invoke
the 5th explicitally. I even heard a victim taking the 5th



>I know these are true, but I do not know why.

Because the accused has the assumption of innocent.

>Why is a defendant who is charged with a crime such as rape or murder protected from questions from a prosecutor?

Because the you have a constitution right not to give evidence against yourself. You are presumed innocent untill
you are convicted. The state must prove you are guilty.


>Why does the 5th amendment offer such protection?


The founder were trying to protect the rights of the accused.
Make the burden of proof on the state.
See in most legal systems you must prove yourself innocent.
In our system the state must prove your guilt.


>What does society as a whole gain from that protection?

It reigns in abuses by the state.



>What history was taken into consideration when the 5th amendment was written? Does English Common law, in which our legal system is largely based, offer the same protection?

No it doesn't it was a change the new nation wanted.


And on a side note/question.... The issue of separately defining "hate crimes" from other crimes. Why should a penalty be greater for someone who killed a bank teller be less then someone who killed a gay man only because the victim was gay?

In theory it protects high risk groups who may be tageted.
Or
Persons whose cases have not been activily pursued in the past.


Is it possible to legislate morality and isn't murder murder, no matter what the reason? I obviously have my own ideals and beliefs but I am curious as to what the opposing view points are and what is it that fuels such a debate.

In real terms it more about political correct left wing feel good law. In most cases it has no effect.


So any help with these questions would be appreciated.

               Thank you, Jason


You had a question about the 2nd ammendment?
I did not see one.