Teaching the Fifth Amendment helps children understand how the Constitution protects freedom and property. The five parts of this amendment ensure that the rights of Americans, even children, are protected by due process when charged with a crime, including prohibitions against self-incrimination and double jeopardy. It also ensures a trial by jury, while requiring fair-market payment for property seized by the government. Role-playing an arrest and indictment, accompanied by review of related vocabulary, can help teach these important American rights.
The Fifth Amendment
Have children read the Fifth Amendment, and discuss related terminology: custody, interrogation, custodial interrogation, coerce, confession, double jeopardy, due process and incrimination among them. You can further explain these concepts in the sections that follow as you teach the five sections of the Fifth Amendment.
When the federal government wants to charge a person with a capital crime, the accused cannot be asked to answer to those crimes without an indictment by a grand jury of between 12 and 23 members. You can discuss the similarities and differences between a grand jury and a trial jury. For example, the grand jury can question witnesses and may accept some evidence not permissible in a trial. There may be an opportunity to educate children about a grand jury by addressing some accusation between classmates or friends. If not, make up a possible charge. Act out the jury selection process. Have one child present the case to the jury, allowing the jury to determine whether or not the accused should be tried in court.
The Fifth Amendment also includes the double-jeopardy clause, which prevents the government from trying a person for the same crime twice. Discuss with children the implications and exceptions to this clause. For example, it includes both multiple trials and multiple punishments for the same crime. The government gets one chance to prove guilt. However, if the trial ends in mistrial or the defendant successfully appeals a guilty verdict, double-jeopardy does not apply and the defendant can be tried again. Additionally, this clause does not prevent the defendant from being tried in separate criminal and civil trials for the same crime.
When it comes to the Fifth Amendment, children may be most familiar with the phrase, “I plead the Fifth.” When the police arrest someone on suspicion of committing a crime, the accused does not have to answer questions. You can have children act out an arrest. They may recite a portion of Miranda rights. Although Miranda rights are not specifically outlined in the Constitution, police must provide them before interrogating a suspect to ensure the suspect’s Fifth Amendment rights. The self-incrimination clause applies only to what the suspect says, and not DNA, fingerprints, handwriting, voice recordings, written records or police lineups. Also, if the suspect opts to testify in court in his or her own defense, the Fifth Amendment does not apply.
Miranda rights can also be considered part of due process of the law, another right guaranteed by the Fifth Amendment. Due process defines how the government must act when depriving an American citizen of freedom or property. The government cannot sentence the citizen to death, jail or fines (depriving life, liberty or property) without allowing the citizen to tell his side of the story. While the Fifth Amendment applies to the federal government, the 14th Amendment guarantees the same rights at the state level. You can create notecards with crimes students may be accused of, such as vandalism, assault or robbery. Have students randomly choose a card and discuss which processes apply.
Private Property Protection
The final clause of the Fifth Amendment, the eminent-domain clause, ensures that the government cannot take a citizen’s property without fair compensation. There are times when a government seizes property for development or other reasons. The Fifth Amendment ensures that the owners of seized properties receive fair-market payment for it. The Supreme Court includes with the physical seizure of property the loss in value of property as a result of government activity. Help children learn about fair-market value by having them select one of their own belongings. They can use newspaper ads, online resources and catalogues to determine the fair-market value of those items.
- Cornell University Law School: Fifth Amendment
- eNotes: Fifth Amendment
- The Heritage Guide to the Constitution: Double Jeopardy
- FindLaw: What Is Double Jeopardy?
- DAC Educational Publications: Constitutional Criminal Procedure
- Miranda Rights
- Citizen Advocacy Center: The Fifth Amendment: Due Process Protection Through Procedure
- American Constitution Society for Law and Policy: The Fifth Amendment’s Privilege Against Self-Incrimination and Public School Students: When Do Miranda Rights Apply?
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