The Bill of Rights and Due Process

Covers search and seizure, rights of the accused, due process of law, jury trials, and protection from cruel and unusual punishment guaranteed in the Fourth, Fifth, Sixth, and Eighth Amendments.

How Do Due Process Protections for the Accused Protect Us All?

Clock 50 minutes

The Founders paid close attention to the rights of the accused because they realized that the government had the power both to prosecute and convict. Protections were needed to guard against the government’s abuse of these powers. Understanding how the Fourth, Fifth, Sixth and Eighth Amendments operate to guarantee such protection and how they work to ensure both individual liberty and limit government is vital to maintaining free citizenship. This lesson explores these amendments and the protections they provide.

Founding Principles

Due Process image

Due Process

The government must interact with all citizens according to the duly-enacted laws; applying these rules equally among all citizens.

Inalienable / Natural Rights image

Inalienable / Natural Rights

Freedoms which belong to us by nature and can only be justly taken away through due process.

Individual Responsibility image

Individual Responsibility

Individuals must take care of themselves and their families and be vigilant to preserve their liberty.

Liberty image

Liberty

Except where authorized by citizens through the Constitution, the government does not have the authority to limit freedom.

Overview

The Founders paid close attention to the rights of the accused because they realized that the government had the power both to prosecute and convict. Protections were needed to guard against the government’s abuse of these powers. Nearly half of the Bill of Rights involves some aspect of these protections. Numerous “checks” within legal processes help ensure the system is as free of bias as possible, and protect individuals from the potentially overwhelming power and resources of government. Understanding how the Fourth, Fifth, Sixth, and Eighth Amendments operate to guarantee such protection and how they work to both ensure individual liberty and limit government power, is vital to maintaining free citizenship.

Objectives

Students will:

  • Understand why criminal procedure protections came to be included in the Bill of Rights.
  • Identify ways in which these protections serve to ensure liberty and limit government.
  • Understand and articulate specific protections found in the Fourth, Fifth, Sixth, and Eighth Amendments.
  • Evaluate Supreme Court rulings concerning the Eighth Amendment’s Cruel and Unusual Punishment Clause.

Materials

  • Handout A: Background Essay – How Do Due Process Protections for the Accused Aim to Protect Us All?
  • Handout B: Criminal and Civil Procedure Protections
  • Handout C: Defining Cruel and Unusual
  • Handout D: Cruel and Unusual?

Standards

  • NCHS (9-12): Era III, Standards 3A and 3B
  • CCE (9-12): IIA1, IIA2, IID3
  • NCSS: Strands 6 and 10

Background 20 minutes the day before

Have students read Handout A: Background Essay – How Do Due Process Protections for the Accused Protect Us All? Instruct students to answer the questions at the end of the Background Essay.

Warm-up 5 min.

  1. Point students back to the bullet-pointed descriptors of a society without criminal procedure protections, contained in the very beginning of Handout A.
  2. Conduct a brief class discussion, considering the following questions:
    1. If you lived in such a society, would you be free? Why or why not?
    2. Would the government have any limitations on its powers if society looked like this? Why or why not?
    3. What types of governments/nations/societies around the world still look like this?

Activities 40 min. combined

Activity I – 20 minutes

  1. Distribute Handout B: Criminal and Civil Procedure Protections and a copy of the Bill of Rights. Put students into groups of 4.
  2. Assign one amendment—Fourth, Fifth, Sixth, Seventh, or Eighth—to each group. Have groups complete the portion of Handout B that is applicable to their assigned amendment only. Instruct students to discuss each element/clause of their amendment, and arrive at an agreed upon interpretation for each clause.
  3. Have one group who read the Fourth Amendment explain their interpretations. If there is a second group who worked with the Fourth Amendment, have them share their interpretations only if they feel their interpretations are substantially different from the ones just presented. Compare student responses to the Answer Key and clarify any misunderstandings.
  4. Repeat procedure for the Fifth, Sixth, Seventh, and Eighth Amendments, in each case making sure that each element of the amendment is identified and its meaning clarified.

 

Activity II – 20 minutes

  1. Have students get out Handout C: Defining Cruel and Unusual and put students into groups of five.
  2. Instruct students to spend a few minutes sharing their individual thoughts/ideas about Handout C. Explain that they are now acting, in their groups, as the Supreme Court. Have each group work together to construct a one-sentence definition of cruel and unusual that can be applied to Eighth Amendment scenarios. Walk around to the room, visiting groups, to keep their discussion focused and assist them in coming to a group definition for Handout C.
  3. Distribute Handout D: Cruel and Unusual? to all students. Instruct groups to select one student in each group to read Scenario 1 aloud to his/her group, while the other students read along. Then, have students discuss and complete questions 1-3 for Scenario 1, deciding, as a Supreme Court, whether the punishment involved in Scenario 1 is cruel and unusual. In deciding, each group should carefully apply their definition of cruel and unusual as written in Handout C, and should vote, just as the real Supreme Court might do to answer question 3 (3 students agreeing constitutes a majority of the group, and thus is their ruling). Have students individually answer question 4 and briefly discuss with their group if anything would have changed their view.
  4. Have students continue the process for Scenarios 2 and 3.
  5. Wrap up by conducting a class discussion to answer the following questions:
    1. How do several Bill of Rights amendments protect due process?
    2. How does due process protect our liberty?
    3. How should “cruel and unusual” be defined?
    4. Why should law-abiding citizens care about protections for criminals?

Homework

  1. Have students locate one local or national news article about an individual who is accused of committing a crime (students should use a newspaper or news-station website for local stories; or http://www.billofrightsinstitute.org for daily headlines of national stories). Students should cut out or print the news article, and submit a 2-paragraph response on the following:
    1. A brief summary of the individual involved, the crime he/she is accused of committing, and any other pertinent details;
    2. Identification/explanation of particular elements of the Bill of Rights that are evident in the article (mentions of a search, representation by an attorney, trial, punishment, etc.). In doing so, students should make specific reference to the amendment(s) that are evident.
  2. Have students visually depict the WHY and the HOW of due process. The Fourth, Fifth, Sixth and Eighth Amendments trace the criminal procedure process in order, from the initial search/ seizure/questioning, to trial, to punishment. Have students create a collage using images found online tracing this process (an image of a search warrant, for example). Students can do a poster board, or an electronic collage/presentation through Prezi or Glogster. Images should illustrate a variety – but not necessarily all – of the protections, with a brief statement below each of what particular right is illustrated and the amendment that protects it. Students should title their presentations with a statement or slogan about WHY the constitutional principle of due process is important. (e.g. “Protecting the accused protects us all.”)
  3. Invite your School Resource Officer (or a local police officer, if your school does not have one assigned) to speak to your class. Prior to his/her visit, brainstorm with students a list of questions to ask, centering on how he/she follows and upholds the protections of the Fourth, Fifth, Sixth, and Eighth Amendments in the course of their job enforcing the law and dealing with suspected criminals. Ask the officer to share police department policies relating to these protections, real scenarios they’ve encountered, etc.
  4. About two-thirds of the states along with the federal government have the death penalty as an option for particular violent crimes. Utilizing the “State by State” section of the Resources tab at http://www.deathpenaltyinfo.org, have students do research to answer the following questions:
    1. Does your state allow the death penalty? If so, for which crimes? If not, when was it abolished?
    2. Do you agree with your state’s position on the death penalty? What do you believe about the death penalty itself? Is it both cruel and unusual? Is it appropriate punishment in certain circumstances? Explain your positions thoroughly using the Constitution, legal precedent, facts, and figures.

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