Instruction and Activity:
1. Read the Fifth Amendment to the US Constitution aloud to your
students. Have a them follow along with their own copy (see handouts):
"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 offense 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."
2. The Fifth Amendment to the US Constitution is about something
called DUE PROCESS. Have the students use dictionaries to help brainstorm
what "due process might mean" and make a list.
"Due Process" refers to our right in this country to be treated fairly
through the use of certain procedures if we are accused of a crime (such
as use of the Miranda Rights has most people have seen on TV). Every
government action dealing with the public has a proper process through
which the government must go to do almost anything - arresting someone,
searching a person's property, taking a person's land, changing zoning
requirements, etc. Due Process refers to that proper process or procedure
to make sure that the government acts fairly when dealing with its citizens.
Hypos to get the students thinking more . . .
For example, would it be fair if a student was accused of cheating
in this class, and was expelled from school without getting out their
side of the story? How about if a student was accused of stealing your
friend's backpack - should you just be suspended from school and thrown
in jail right away without being allowed to talk with your parents or
a lawyer, or even have a trial?
What do you think would be fair for the principal or me to do in these
situations?
3. The phrases in the Fifth Amendment give us a list of some of
the things the government has to do if we are accused of a crime. All
these requirements are part of due process.
Activity One:
Split up the class into 5 groups, each taking a phrase of the amendment.
Give each group a few minutes to come up with what they think their
phrase requires the government to do (dictionaries may be used). A member
from each group will need to teach the rest of the class what they came
discussed.
Teacher Key:
1. "No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand jury
. . ."
- The government must officially charge you with a crime to make you
answer for it. In other words, they have to have a good reason to
keep you in their custody - the police cannot throw you in jail indefinitely
without charging you with a crime and seeing it through to trial.
** Please note that this situation has changed significantly with
passage of the USA Patriot Act, and the detention of "enemy combatants."
However, these types of detentions are currently being fought in court
on the basis of 5th Amendment Due Process challenges.**
2. "nor shall any person be subject for the same offense to be twice
put in jeopardy of life or limb"
- Double Jeopardy - you cannot be tried twice for the same offense.
Unlike what was depicted in the Ashley Judd movie entitled "Double
Jeopardy," it does NOT mean that if you are convicted of killing someone,
but didn't really do it, that you can get out of jail, kill that person,
and get off. The crime in question is the SAME crime - same person,
same date, same time, same place, same manner.
3. "nor shall be compelled in any criminal case to be a witness
against himself"
- Self-incrimination: "I plead the fifth!" means as a defendant,
you do not have to testify at all and you do not have to give any
information that might be used against you. You have the right to
remain silent.
- Ask the students if they've ever heard the police "read someone
their rights" on TV or in the movies. Can they name these rights?
Answer: Right to remain silent; any statement defendant makes may
be used as evidence against him; that defendant has a right to the
presence of an attorney; that if defendant cannot afford an attorney,
one will be appointed for him prior to any questioning if defendant
so desires.
4. "nor be deprived of life, liberty, or property, without the due
process of law"
- The government cannot take your life (as in the death penalty),
your freedom (lock you up or detain you), or your stuff without going
through fair procedures that help to make sure you are being treated
fairly and are given a chance to give your side of the story.
5. "nor shall private property be taken for public use, without
just compensation."
- The government can take your property (like the land on which your
house sits) for a public purpose like constructing a park or road,
but they have to pay you a fair price for it.
6. We are also guaranteed due process rights under the 6th amendment:
- Right to a trial by jury
- Right to an attorney even if you can't afford one
Follow-up Questions:
1. Do you think these due process rights are important? Why or why
not?
2. Are some of these rights more important than others? For example,
couldn't people just be their own lawyers if they can't afford one?
What might be the problem with that?
3. Why not just have no juries and have a judge always decide if you
are guilty?
WHAT DOES THE 5TH AMENDMENT SAY?
"No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury. . . .
nor shall any person be subject for the same offense 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 the due process of law; nor shall private property
be taken for public use, without just compensation."
1. "No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury"
____________________________________________________________________
____________________________________________________________________
2. "nor shall any person be subject for the same offense to be twice
put in jeopardy of life or limb"
____________________________________________________________________
____________________________________________________________________
3. "nor shall be compelled in any criminal case to be a witness against
himself"
____________________________________________________________________
____________________________________________________________________
4. "nor be deprived of life, liberty, or property, without the due
process of law"
____________________________________________________________________
____________________________________________________________________
5. "nor shall private property be taken for public use, without just
compensation"
____________________________________________________________________
____________________________________________________________________
6. BONUS: Read the 6th Amendment and list another due process right
____________________________________________________________________
____________________________________________________________________
Case Studies (based on actual case law):
A. Review the facts
B. Have students work in small groups to articulate each party's point
of view/argument.
C. Give students time to elect representatives and debate both sides
of the case to gain an appreciation for the issues involved and to understand
the other side's point of view. Each group will be assigned to debate
for one side.
D. Review how the court actually decided the case.
Case Study #1
The police suspected that Joe committed a crime. The police picked
up Joe from his house, took him to the police station, and questioned
him for the purpose of obtaining a confession. The police did not tell
Joe of his right to remain silent or of his right to consult an attorney.
Instead, the police told Joe that they knew that his friend, Bob, had
helped Joe commit the crime (a murder), and that Bob had confessed.
When Joe denied that he had had any part in the murder, the police handcuffed
him and took him into an interrogation room. There, while he handcuffed
and standing, he was questioned for four hours until he confessed. During
the interrogation, the police denied Joe's request to speak to his attorney.
The police also prevented Joe's attorney, who had come to the police
station, from talking with Joe. At Joe's trial, the State introduced
Joe's confession as evidence against him.
1. What is the issue raised in this case relating the 5th and 6th amendments?
In other words, did the police do anything unconstitutional in their
investigation?
2. If the police did do something wrong, should that affect the admissibility
of the confession evidence?
3. Discuss the arguments for why certain evidence should be excluded
or included based on the police conduct. What do you think the outcome
should be?
4. Would your opinion change if Joe had confessed to committing the
murder to the police after being taken into custody, but before he was
taken to the interrogation room?
Case Analysis:
Actual case: Miranda v. Arizona U.S. Supreme Court, decided June
13, 1966
Right at issue: The right not to be compelled to become a witness
against oneself. This is also known as the right to remain silent.
The sixth amendment right to an attorney was also an important part
of this case.
Held: The Defendant, Miranda, was deprived of his rights under the
Fifth and Sixth Amendments. By forcing the confession from Miranda,
the police violated the defendant's Fifth Amendment right to remain
silent. The State of Arizona was effectively forcing the defendant
to testify against himself by obtaining the confession without first
informing the defendant of his rights. The Court decided the State
also violated the defendant's Sixth Amendment right to consult an
attorney when they prevented the defendant from contacting or obtaining
an attorney during interrogation. The Court decided the State also
violated the defendant's right to an attorney by preventing the defendant's
retained attorney to consult the defendant during the interrogation.
Case Study #2
The rate of juvenile immigration into the United States has been increasing
rapidly from the 1980's through today. These juveniles are often not
accompanied by parents or other guardians. Instead, the alien juveniles
are arrested by the INS and then detained in a camp similar to a prison
pending a deportation hearing if they have no legal guardian. Unlike
other types of prisoners, juvenile aliens do not have the right to be
released into the custody of responsible adults who are not their parents
or guardians while they wait for a hearing. Because of a federal regulations,
alien juveniles can only be released in to the custody of parents, close
relatives, and legal guardians. Therefore, many juvenile aliens are
required to stay in the detention camps while they are waiting to have
a hearing.
Last week, Jimmy and Pietra (two juveniles) were caught trying to enter
the county illegally. Jimmy and Pietra's parents are not able to come
get them from the detention camp, and no other relatives are available
to help. Jimmy and Pietra want to be released into the custody of a
foster family instead of staying in the detention camp while they wait
for their hearing. The Immigration and Naturalization Service denies
Jimmy and Pietra's request, and Jimmy and Pietra are kept in detention
without any type of hearing as to whether the detention is necessary
or proper in the first place. Jimmy and Pietra are required to stay
in the detention camp until their deportation hearing is finished.
1. What is the issue raised in this case relating to the 5th amendment?
(due process)
2. Do you think it is violation of the 5th amendment to keep immigrant
minors under federal detention camps while they wait for deportation
hearings? Or do you think they should be in foster care?
3. Should these juvenile immigrants be allowed to have a preliminary
hearing to determine if the detention is proper in the first place?
4. Do you think that immigrants have the same rights as citizens under
the 5th amendment?
5. Would your opinion change if you were in the place of the minors
located in these federal government institutions that operate much like
prisons?
Case Analysis:
Actual case: Reno v. Flores, decided March 23, 1993
Rights at Issue: Due process, whether or not an illegal juvenile
can be held without a hearing pending a deportation hearing.
Held: The Supreme Court held in this case that the INS could have
custody over the illegal alien juveniles without a hearing without
violating due process. The Court held that the rule did not violate
due process because the INS was not necessarily detaining the children,
but rather taking custody of them where there was no apparent person
to act as a guardian. The Court also claims that the conditions of
the centers in which the alien juveniles are held are acceptable,
and comply with federal guidelines. The Court also found that there
is no constitutional or other right for alien juveniles to be released
into the hands of an unrelated private individual. The Court ruled
that government custody is not meant to punish the illegal immigrant
children, but rather is connected to the government's interest in
preserving the welfare of the child. The court also ruled that arresting
and holding the alien juveniles up to the time of a deportation hearing
does not violate procedural due process under the fifth amendment
because the deportation hearing itself fulfills the due process obligations
of the federal government. The Court ruled the Federal Government
in no way violated the Fifth Amendment rights of the juvenile aliens.
THE 5TH AMENDMENT HANDOUT
"No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury. . . .
nor shall any person be subject for the same offense 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 the due process of law; nor shall private property
be taken for public use, without just compensation."
IN A NUTSHELL
- For federal crimes, you must be indicted by a grand jury to be required
to answer for the crime at a trial
- Double jeopardy: you can not be tried twice for the same crime
- Self-Incrimination: as a defendant, you can not be required to testify
- The government can not take your property, freedom, or life without
following fair procedures
- The government can take your land as long as it is for a public
use and they pay you fairly for it.
THE 6TH AMENDMENT IN A NUTSHELL
- Right to a speedy, public jury trial with an impartial jury ( see
Jury Duty lesson plan)
- Right to know what you are accused of
- Right to an attorney
- Right to be tried where the crime occurred
©Copyright 2003 Citizen Advocacy Center. All rights reserved. No part
of this lesson plan may be reproduced in any form or by any means without
the prior, written permission of the Citizen Advocacy Center.
--HOME
--