THE CONSTITUTION IN THE CLASSROOM

2011

The Fifth Amendment’s Privilege Against

Self-Incrimination and Public School Students:

When do Miranda Rights Apply?

September 17, 2011

MIDDLE SCHOOL VERSION

Produced by the Marshall-Brennan Constitutional Literacy Project at

American University Washington College of Law. Substantial

contributors to this unit include Jessica Kurtz and Maryam Ahranjani.

The Project appreciates the support of the American Constitution

Society in implementing the teaching module in high schools across

the country.

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The Fifth Amendment’s Privilege Against Self-Incrimination and Public School Students:

When Do Miranda Rights Apply?

INSTRUCTIONS Description: This unit can be taught during the week of Constitution Day or afterwards. While it may be taught in separate parts, we recommend that students are familiar with the information provided in the background section prior to learning either of the two cases. The overarching goal of this lesson plan is to teach 6th – 8th grade students about the significance of the Constitution as a living document that confers rights upon them as young people. Objectives: 1) To learn about the Fifth Amendment in greater depth, focusing on the issue of juvenile Miranda rights. JDB provides a unique opportunity for students to think about how the Fifth Amendment affects them personally. 2) To learn about the Supreme Court case Miranda v. Arizona, in which the Court held that a person must be informed of their right to remain silent and have an attorney present during questioning, among other things, during custodial interrogation. 3) To learn about the 2011 Supreme Court case JDB v. North Carolina (2011), in which the Court held that age must be considered as a factor in custody determinations in school settings. Length of Lesson: 1 class period of 60 minutes. Supplies Needed: This packet. Instructor may want to bring one copy per student of certain pages.

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The Fifth Amendment’s Privilege Against Self-Incrimination and Public School Students:

When Do Miranda Rights Apply?

TABLE OF CONTENTS

Recommended Approach

Page 3

Fifth Amendment Vocabulary

Page 4

Your Fifth Amendment Rights: Miranda v. Arizona

Page 5

Miranda Warm-Up Activity (Miranda card)

Page 6

JDB v. North Carolina: Summarized Version

Page 7

Talking Points: The Fifth Amendment JDB Application

Page 8

Does Miranda Apply?: Activity Scenarios

Page 9

Does Miranda Apply?: Graphic Organizer

Page 10

Answer Key: Does Miranda Apply?: Graphic Organizer

Page 11

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RECOMMENDED APPROACH

Instructor reviews “Fifth Amendment Vocabulary” – page 3 o Instructor can either provide students with a copy of the vocabulary

sheet or simply display/discuss the vocabulary prior to the start of the lesson.

o Instructors should focus on the definitions of “custody” and “interrogation” and, in conjunction with “Your Fifth Amendment Rights: Miranda v. Arizona,” the importance of the “custodial interrogation” determination.

Instructor reviews “Your Fifth Amendment Rights: Miranda v. Arizona” – page 4

o Instructor should either provide students with a copy of the sheet or simply display/discuss it.

o Instructor should make the connection between “custodial interrogation” and Miranda – i.e., that Miranda rights only apply when a person is subject to custodial interrogation.

Students complete “Miranda Warm-Up Activity (Miranda Card)” – page 5

Instructor and students read “JDB v. North Carolina” case – page 6 o Instructor reviews the case by reviewing with students that Miranda

rights apply when someone is subject to custodial interrogation. Instructors should ask the class what rights they think students have in schools when questioned by authority figures.

o Either while reading through the case or after reading the case, discuss Talking Points with students – page 7

Does Miranda Apply?: Activity Scenarios – page 8

o Students are split into four groups and given one of the activity scenarios. Each group should take a few minutes to plan how they will act out the scenario for the class. Each group should act out their scenario and the class decides whether or not Miranda applies, i.e. whether the person/s was subject to custodial interrogation.

o Instructor may recreate the graphic organizer or copy one for each student and have students complete it after each scenario is performed and discussed or after all scenarios have been performed.

o Instructor and/or students may create additional scenarios to act out for the class.

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FIFTH AMENDMENT VOCABULARY

Custody

Under arrest; period of time during which a person has been deprived of his freedom of action.

Interrogation

Questioning; questions, words, or actions initiated by the police that the police should know is likely to lead to an incriminating response from the suspect.

Custodial Interrogation

When you are asked questions by the police while you are under arrest and have been taken into custody by the police; to trigger Miranda rights, there must be a “custodial interrogation.” This means that you must be in custody and be interrogated. Miranda rights do not apply if only one or the other condition exists.

Coerce

Force or threat of force.

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YOUR FIFTH AMENDMENT RIGHTS: MIRANDA V. ARIZONA

1. If you are subject to “Custodial Interrogation,” the police must inform

you of the following:

o You have a right to remain silent

o Anything you say may be used against you in a court of law.

o You have the right to an attorney.

o If you can’t afford an attorney, one will be provided for you.

o Even if you don’t ask for an attorney at first, if you change your

mind, you may stop questioning at any time and ask for a lawyer.

2. What does “Custodial Interrogation” mean?

o This means that you have been taken into custody or otherwise

deprived of your freedom of action. It can also mean that you do

not feel free to leave.

o In other words, if the police arrest you, or if you aren’t allowed to

leave the place of questioning.

o In addition, the officers must questioning you or taking actions

that are likely to make you offer an incriminating response.

3. What if I answer some questions, but then decide I want a lawyer?

o If you decide to have a lawyer present during questioning, then

the police must stop questioning you until the lawyer gets there.

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MIRANDA WARM-UP ACTIVITY

As a result of the case Miranda v. Arizona, police officers must inform suspects of

their rights to a lawyer and to remain silent. Many jurisdictions use Miranda waiver

cards to prove that suspects have been read, and understand, their rights. Willing

suspects that wish to speak to the police without counsel can sign these cards to

acknowledge that they are waiving their rights. Below is a copy of a Miranda Waiver

Card from the District of Columbia. Read the card and fill it out the way you would if

you were at the police station.

WAIVER

1. Have you read or had read to you the warning as to your

rights? __________________

2. Do you understand these rights? ___________________

3. Do you wish to answer any questions? ________________

4. Are you willing to answer questions without having an

attorney present? _______________________

5. Signature of the defendant on the line below

______________________________________________

6. Time ____________ Date _____________________

7. Signature of Officer_______________________________

8. Signature of Witness ______________________________

METROPOLITAN POLICE DEPARTMENT

WARNING AS TO YOUR RIGHTS

You are under arrest. Before we ask you any questions, you must understand what your rights are. You have the right to remain silent. You are not required to say anything to us at any time or to answer any questions. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we question you and to have him with you during questioning. If you cannot afford a lawyer and want one, a lawyer will be provided for you. If you want to answer questions now without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.

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SUMMARIZED VERSION: J.D.B. V. NORTH CAROLINA

Facts of the Case:

A North Carolina boy identified as J.D.B. was a 13-year-old special education student in 2005

when the police showed up at his school to question him about a string of neighborhood

burglaries. The police had learned that the boy was in possession of a digital camera that had

been reported stolen. The boy was escorted to a school conference room, where he was

interrogated by the police in the presence of school officials. J.D.B.'s parents were not contacted,

and he was not given any warnings about his rights under the 1966 decision in Miranda v.

Arizona, such as the right to remain silent or to have access to a lawyer. J.D.B. confessed to the

crimes, but later sought to have his confession suppressed on the basis that he was never read his

Miranda rights. He argued that because he was effectively in police custody when he

incriminated himself, he was entitled to Miranda protections.

In December 2009, the North Carolina Supreme Court held that it could not consider the boy's

age or special education status in determining whether he was in custody, and because he was

not in custody, he was not entitled to Miranda warnings.

Legal Question:

Should courts consider the age of a juvenile suspect in deciding whether he or she is in custody

for Miranda purposes?

Majority Opinion:

By a 5-4 majority opinion, the Supreme Court reversed the lower court order. "It is beyond

dispute that children will often feel bound to submit to police questioning when an adult in the

same circumstances would feel free to leave… [W]e hold that a child's age properly informs the

Miranda custody analysis.” The Court underscored the dangers of not applying age to the

custody analysis, writing: "to hold... that a child's age is never relevant to whether a suspect has

been taken into custody— and thus to ignore the very real differences between children and

adults— would be to deny children the full scope of the procedural safeguards that Miranda

guarantees to adults.” Finally, the Court pointed out that the law reflects the idea that a child's

judgment is not the same as an adult's, in the form of legal disqualifications on children as a class

(e.g. limitations on a child's ability to marry without parental consent).

The Court emphasized the fact that age is an objective circumstance and including it in a custody

analysis does not place an undue burden on the police. The Court has repeatedly emphasized that

the custody analysis is an objective test. The Court wrote that consideration of age involved no

consideration of the specific mindset of the individual. Rather, the Court held that age is an

objective fact that affects how a reasonable person would perceive his or her freedom to leave.

The Supreme Court sent the case back to the state court to determine whether the youth was in

custody when he was interrogated.

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TALKING POINTS:

THE 5TH AMENDMENT JDB APPLICATION

1. For the purposes of Miranda, was JDB in custodial interrogation when he was being

questioned by police at his school? Why, or why not?

It’s up to the North Carolina Supreme Court to apply the Supreme Court’s

holding in JDB, but probably he was subject to custodial interrogation when he

was questioned by police because the officers took JDB to a separate room

where, as a 13-year-old, he did not feel free to leave, and where the officers

asked him questions.

2. What are some of the elements that would make it seem like JDB was in a custodial

interrogation setting?

He was escorted by officers to a closed conference room, where the officers

questioned him. Additionally, JDB, who was only 13 years old, did not have an

advocate (i.e., parents or lawyer) present and school officials were encouraging

JDB to “do the right thing.”

3. Why/how does the Court say juveniles are different from adults?

Children are generally less mature and responsible than adults. Also, children

lack experience, perception, and judgment to determine what will be detrimental

to them. Additionally, children are more susceptible and vulnerable to outside

pressures.

4. What is the holding of this case?

The Court held that a child’s age properly informs the Miranda custody analysis.

5. What do you think about how the Court decided this case? Do you think age should

be a factor in a Miranda custody analysis? Why or why not? In your view, at what

age does age no longer matter?

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DOES MIRANDA APPLY?: ACTIVITY SCENARIOS

1. Benny, 13 years old, was pulled out of class by two police officers and placed in a school conference room with the door closed. With the principal in the room, the police officers questioned Benny about recent break-ins and burglaries in the neighborhood surrounding the school.

2. Sarah and Jenny, both 9 years old, were pulled out of class and placed in the principal’s office with the door closed. The principal and vice principal then questioned the girls about recent break-ins and burglaries in the neighborhood surrounding the school.

3. Drake, 11 years old, was out on the playground when two police officers stopped him and questioned him about recent break-ins and burglaries in the neighborhood surrounding the school.

4. Nicole, a 17-year-old senior in high school, was in gym class,

outside on the track, when her teacher and principal called her over and began accusing her of involvement in the recent break-ins and burglaries in the neighborhood surrounding the school.