CITIZEN ADVOCACY CENTER

THE FIFTH AMENDMENT: PROTECTION THROUGH PROCEDURE

LESSON PLAN AND ACTIVITY

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Grade Level: 9-12

Subjects:

• Social Studies: U.S., State, and Local Government
• Language Arts: Reading, Writing

Duration: 1-2 session(s)

Description: Lesson explores the meaning of “due process” as discussed in the 5^th Amendment to the US Constitution, and how due process affects students’ daily lives.

Goals:

ISBE Standards:

1. Social Science

· 14A: Understand and explain basic principles of the United States government.

· 14B: Understand the structures and functions of the political systems of Illinois, the United States and other nations.

· 16A: Apply the skills of historical analysis and interpretation.

· 16B: Understand the development of significant political events.

2. Language Arts

· 1A: Apply word analysis and vocabulary skills to comprehend selections.

· 1B: Apply reading strategies to improve understanding and fluency.

· 1C: Comprehend a broad range of reading materials.

· 3A: Use correct grammar, spelling, punctuation, capitalization and structure.

· 3B: Compose well-organized and coherent writing for specific purposes and audiences.

· 3C: Communicate ideas in writing to accomplish a variety of purposes.

· 4A: Listen effectively in formal and informal situation.

· 4B: Speak effectively using language appropriate to the situation and audience.

Objectives:

1. Explore the definition of “due process.”

2. Understand the language of the 5^th Amendment to the US Constitution.

3. Connect how the concept of due process affects students’ daily lives.

Materials:

“What Does the Fifth Amendment Say?” Handout, Fifth Amendment Handout, Dictionaries

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 5^th 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 6^th 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 5^TH 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 6^th 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 5^th and 6^th 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 5^th amendment? (due process)

2. Do you think it is violation of the 5^th 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 5^th 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.

©Copyright 2005 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. The Citizen Advocacy Center is a 501(c)(3) non-pofit, non-partisan community based legal organization. For information about the Center, or to make a tax deductible contribution, visit www.citizenadvocacycenter.org, call 630.833.4080. The Center is located at 238 N. York Rd., Elmhurst IL 60126