Rights of people accused of crimes: the 4th, 5th, 6th and 8th Amendments

Grade 12 Social Studies Worksheet

Circle the best answer.

1. Read this first

   Use this

   Cards A to C on searches and conversations (the excerpts are exact; card C is made up). Card A, "The Fourth Amendment (1791)". Who made it: Congress proposed it and the states ratified it. When: ratified December 15, 1791. For whom: the people of the United States. Why: to limit government searches. From the National Archives transcription: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Card B, "Katz v. United States (1967)". Who made it: Justice Potter Stewart, for the Supreme Court; Justice John Marshall Harlan wrote a concurring opinion. When: decided December 18, 1967. For whom: the parties, other courts and the public. Why: federal agents with no warrant had recorded a man's calls with a device attached to the outside of a public telephone booth, and the Court decided whether that was a search. Majority, excerpt 1: "For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Excerpt 2: "But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Excerpt 3 (about the booth): "One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." Justice Harlan, concurring, excerpt 4: "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" Excerpt 5: "conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable." Card C, "Three cases (made up)". Who made it: written for this sheet. Summary in our words: Case 1: Agents with no warrant fasten a microphone to the outside wall of a rented office and record a closed-door phone call made inside. Case 2: Agents with no warrant stand in a public hallway and read papers lying open on a man's desk through his open office door. Case 3: A man speaks loudly on his phone at a table in a crowded cafe, sure that no one is listening. Agents at the next table, with no warrant, write down what he says.

2. 1.

   Milo applies cards A and B to Case 1 on card C. Which reasoning is strongest?

   • Katz governs: the call was kept private, so recording it is a search, though no house, paper or effect was entered
   • No search: Katz protected a telephone booth, and a rented office room is not a booth
   • A search, because any recording of a person by agents who have no warrant violates the Fourth Amendment
   • No search: card A lists persons, houses, papers and effects, and recording a call from outside the wall takes nothing from any of them
3. 2.

   Pia applies cards A and B to Case 2 on card C. Which reasoning is strongest?

   • A search: card A names papers, and card B protects what a person seeks to preserve as private, even in his own office or home
   • A search: card B protects people, not places, so agents standing in a hallway need a warrant to read anything about a person
   • No search: what a person knowingly exposes, even in an office, is unprotected, and papers open behind an open door are exposed
   • No search: nothing in view of a public hallway is protected, even papers kept in a closed drawer or a locked cabinet

4. Use this

   Cards A to C on being compelled to give evidence (the excerpts are exact; card C is made up). Card A, "The Fifth Amendment (1791)". Who made it: Congress proposed it and the states ratified it. When: ratified December 15, 1791. For whom: the people of the United States. Why: to protect the accused in criminal cases. From the National Archives transcription: "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 offence 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." Card B, "Schmerber v. California (1966)". Who made it: Justice William Brennan, for the Supreme Court. When: decided June 20, 1966. For whom: the parties, other courts and the public. Why: to decide whether a body sample taken at a police officer's direction, and its laboratory analysis, was evidence the privilege against self-incrimination protects. Excerpt 1: "the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature" Excerpt 2: "It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers." Excerpt 3 (what courts had usually held): "both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Excerpt 4: "Some tests seemingly directed to obtain 'physical evidence,' for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment." Card C, "Two orders (made up)". Who made it: written for this sheet. Summary in our words: Case 4: A judge orders a defendant to copy a sentence that the police dictate, so an expert can compare the handwriting with a signed paper. Case 5: A judge orders a defendant to take a lie detector test about the charge, and the results will be shown to the jury.

5. 3.

   Kira applies card B to Case 4 on card C. Which reasoning is strongest?

   • No violation: dictated writing for identification shows how he writes, not what he knows, so it is outside the privilege
   • Violation: card A bars compelling a person to supply any evidence against himself in any criminal case, whatever its kind
   • Violation: card B says the privilege reaches communications in any form, and writing is one form that a communication takes
   • No violation: the privilege protects spoken testimony at trial, and a handwriting sample is neither spoken nor given at trial

6. Use this

   Cards A to D on the words of the Bill of Rights (the excerpts are exact; card D is made up). Card A, "The Fourth Amendment (1791)". Who made it: Congress proposed it and the states ratified it. When: ratified December 15, 1791. For whom: the people of the United States. From the National Archives transcription: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Card B, "The Sixth Amendment (1791)". Same maker, date and readers. Excerpt: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." Card C, "The Eighth Amendment (1791)". Same maker, date and readers. Excerpt: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Card D, "Three cases (made up)". Who made it: written for this sheet. Summary in our words: Case 6: A poor defendant in a federal court is told he may have a lawyer only if he can pay. Case 7: A judge sets bail at ten times the amount usual for the offense and gives no reason. Case 8: Detective Reed tells a judge by phone, without swearing to it, that an informant saw stolen tools in the garage at 9 Oak Lane. The judge signs a warrant for "the garage at 9 Oak Lane" and names the tools.

7. 4.

   A poor defendant in a federal court is told he may have a lawyer only if he can pay (Case 6). Ren reads card B. Which statement about the words is best supported?

   • The words give the accused the Assistance of Counsel but do not say who pays, so the text alone does not settle the case
   • The words settle it: the Sixth Amendment applies to defendants who can afford to be tried and to no others
   • The words settle it: a right to the Assistance of Counsel means the government must appoint a lawyer for a person who cannot pay
   • The words settle it the other way: counsel "for his defence" means a lawyer the accused hires himself
8. 5.

   A judge sets bail at ten times the usual amount and gives no reason (Case 7). Bo reads card C. Which statement about the words is best supported?

   • No violation: the words bar excessive fines and cruel punishments, and bail is neither of those, so the judge was free
   • A violation: the words cap bail at the amount of the fine that the offense carries, which ten times the usual exceeds
   • A violation: any bail above the amount usual for the offense is excessive under the words, whatever the reason given
   • The words bar excessive bail but give no measure, so ten times the usual amount raises the question, not the answer
9. 6.

   Noah tests the warrant in Case 8 on card D against the words of card A. Which reasoning is strongest?

   • It fails the words "supported by Oath or affirmation," since the detective's statement was unsworn, whatever the tip
   • It passes because a judge's signature stands in for the oath when the place and the things to be seized are described
   • It fails because a tip from an informant cannot amount to probable cause under the words of the Fourth Amendment
   • It fails because probable cause must be proved beyond a reasonable doubt before a warrant may issue under the words

10. Use this

    Cards A to E on the Bill of Rights and the states (the excerpts are exact; card E is made up). Card A, "Barron v. Baltimore (1833)". Who made it: Chief Justice John Marshall, for the Supreme Court. When: 1833. For whom: the parties, other courts and the public. Why: to decide whether the first ten amendments limit the states. Excerpt 1: "These amendments demanded security against the apprehended encroachments of the general government—not against those of the local governments." Excerpt 2: "These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them." Card B, "Timbs v. Indiana (2019)". Who made it: Justice Ruth Bader Ginsburg, for the Supreme Court. When: decided February 20, 2019. For whom: the parties, other courts and the public. Why: to decide whether the Eighth Amendment's Excessive Fines Clause binds the states. Excerpt 1: "When ratified in 1791, the Bill of Rights applied only to the Federal Government." Excerpt 2: "With only 'a handful' of exceptions, this Court has held that the Fourteenth Amendment's Due Process Clause incorporates the protections contained in the Bill of Rights" Excerpt 3: "Incorporated Bill of Rights guarantees are 'enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.'" Excerpt 4: "Like the Eighth Amendment's proscriptions of 'cruel and unusual punishment' and '[e]xcessive bail,' the protection against excessive fines guards against abuses of government's punitive or criminal-law-enforcement authority." Card C, "The Eighth Amendment (1791)". Excerpt: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Card D, "The Fifth Amendment (1791), first clause". Excerpt: "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;" Card E, "Two state cases (made up)". Who made it: written for this sheet. Summary in our words: Case 9: A state judge sets bail for a man accused of a minor offense at twenty times the usual amount and gives no reason. Case 10: A state prosecutes a man for a serious felony on a prosecutor's written accusation, called an information, filed without any grand jury.

11. 7.

    A state judge sets excessive bail (Case 9). Zee compares cards A and B. Which statement about the Eighth Amendment's bail clause is best supported?

    • Barron still controls: the Bill of Rights limits only the national government, so a state judge may set any bail he chooses
    • Timbs settles it: the Court held that the bail clause binds the states, as it binds the national government in federal cases
    • Neither case matters, because the Eighth Amendment names bail only as an example of the fines that it forbids in excess
    • Barron left the states free of it in 1833; Timbs now binds them to nearly all Bill of Rights protections, ruling only on fines
12. 8.

    A state charges a serious felony by information, with no grand jury (Case 10). Esme reads cards A, B and D. Which statement is best supported?

    • A violation: Timbs says the Bill of Rights applies to the States, and the grand jury clause is part of the Bill of Rights
    • The cards cannot settle it: Timbs allows a handful of exceptions and does not say whether the grand jury clause is one
    • No violation: the grand jury clause covers crimes against the United States, so state felonies fall outside the words
    • No violation: Barron holds that the Bill of Rights restrains the national government, not the states, so the state is free to use an information

13. Use this

    Cards A to C on searches and conversations (the excerpts are exact; card C is made up). Card A, "The Fourth Amendment (1791)". Who made it: Congress proposed it and the states ratified it. When: ratified December 15, 1791. For whom: the people of the United States. Why: to limit government searches. From the National Archives transcription: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Card B, "Katz v. United States (1967)". Who made it: Justice Potter Stewart, for the Supreme Court; Justice John Marshall Harlan wrote a concurring opinion. When: decided December 18, 1967. For whom: the parties, other courts and the public. Why: federal agents with no warrant had recorded a man's calls with a device attached to the outside of a public telephone booth, and the Court decided whether that was a search. Majority, excerpt 1: "For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Excerpt 2: "But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Excerpt 3 (about the booth): "One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." Justice Harlan, concurring, excerpt 4: "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" Excerpt 5: "conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable." Card C, "Three cases (made up)". Who made it: written for this sheet. Summary in our words: Case 1: Agents with no warrant fasten a microphone to the outside wall of a rented office and record a closed-door phone call made inside. Case 2: Agents with no warrant stand in a public hallway and read papers lying open on a man's desk through his open office door. Case 3: A man speaks loudly on his phone at a table in a crowded cafe, sure that no one is listening. Agents at the next table, with no warrant, write down what he says.

14. 9.

    A student says the Fourth Amendment protects only places, so nothing said in a public place is protected. Jun tests this with cards A and B. What is the best verdict?

    • Mostly refuted: Katz protects people, not places, though what a person knowingly exposes is unprotected, so a public setting is not the test
    • Supported: card A names houses and papers, which are places, and says nothing about conversations, telephones or about people
    • Supported: Katz says what a person knowingly exposes is unprotected, and a public place exposes everything said there to anyone
    • Refuted: Katz protects people everywhere, so agents need a warrant to hear anything that a person says in public
15. 10.

    A man speaks loudly on his phone in a crowded cafe, sure no one is listening (Case 3). Ari applies Justice Harlan's test on card B. Which reasoning is strongest?

    • Protected: Katz says the Fourth Amendment protects people, not places, so a cafe table is no different from a booth
    • Not protected: his expectation was real, but Harlan's test also needs one society recognizes, and open talk is overheard
    • Protected: he exhibited an actual expectation of privacy, and an actual expectation satisfies Harlan's test
    • Not protected: Harlan's test applies to calls placed from a closed booth, so it does not reach talk in a cafe or other places