The Sixth Amendment | Civil liberties and civil rights | US government and civics | Khan Academy
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The Sixth Amendment | Civil liberties and civil rights | US government and civics | Khan Academy


– [Kim] Hi, this is Kim from Khan Academy. Today I’m learning about
the Sixth Amendment to the US Constitution. One of four amendments
in the Bill of Rights that concerns the rights of the accused, the Sixth Amendment guarantees defendants in criminal cases the right
to a speedy and public trial. To learn more about the Sixth Amendment, I sought out the help of two experts. Stephanos Bibas is a
United States Circuit Judge for the US Court of Appeals
for the Third Circuit. He’s also a leading scholar
of criminal procedure. Jeffrey Fisher is Professor of Law and Co-Director of the Supreme
Court Litigation Clinic at Stanford Law School. So Judge Bibas, in the
case of the Bill of Rights, the Framers were trying to prevent particular abuses of the government, so what was the historical background that led them to want to protect
these rights in particular? – [Stephanos] In England in the late 17th and early 18th century, there was a series of treason trials, other political trials, and the king had done some things that bypassed the usual mode
of trial in criminal cases. The Anglo-American system
is known as the Common Law. It involves live testimony in open court before a jury of your peers, and the jury ultimately decides did you do it, were you blameworthy, do you deserve the punishment? The Crown had railroaded some
of its political opponents. People like Sir Walter Raleigh, people accused in the Popish Plots during the strife between
Catholics and Protestants and some of these convictions were later understood to
have been wrongful ones and so the colonists in
England and then in America insisted on protecting against various ways of diminishing or abridging the trial that would be speedy,
that would be public, that would be before a
jury, that would have an evenly matched prosecution and defense and would have an opportunity to look the witness in the
eye and confront him the way it was always done in England as opposed to on continental Europe. – [Jeffrey] There’s a varied history, primarily in England of
certain periods of time where people were prosecuted in ways that the Founders deemed fundamentally unfair. Probably the most notorious
example was the Star Chamber. That was a moniker given to a king-run tribunal decades before the Founding where people were picked up and arrested and then sentenced to criminal punishment and sometimes to death without ever having an opportunity to challenge
the charges against them and sometimes not even knowing what the charges were against them. That kind of a travesty of justice and abuse of power was probably the foremost thing in the Framers’ minds. – [Stephanos] This was
partly for the benefit of the defendant or the accused. It also was very importantly about protecting the citizens’ right
to control criminal justice. That it wasn’t the king who would do this, and the king couldn’t just
let his royal officers off. It’s very important to look at the Declaration of Independence. A bunch of the complaints
in the Declaration are complaints that the king
is bypassing these usual modes, that he’s protecting his
soldiers by a mock trial from punishment for
murders which they should commit on the inhabitants of the States. That he’s depriving us in many cases of the benefits of trial by jury and that he has made the judges subject to his manipulation and pleasure because they don’t have stable salaries. The colonists were very suspicious of the king’s manipulation
of criminal justice. – [Kim] So how does the Sixth Amendment inform how the US legal
system works today? – [Jeffrey] The first
important thing to understand is that when the Sixth
Amendment was drafted, just like all the other
first ten amendments, they applied primarily only
to the federal government not to state governments, but in the sixties and seventies the Supreme Court applied all of these rights one-by-one to the states. Now because the rights apply to both the federal government
and to state governments the Sixth Amendment
applies every single time somebody is charged with a crime. That starts with knowing what
you’re being charged with, whether it’s by what’s known
as a grand jury indictment or some other method of accusing somebody of committing a crime, and it continues on with the right to an attorney to represent the accused and goes all the way
through the decision-making process with how the jury
decides whether to convict or not – [Kim] This is fascinating, but there are a couple things that I see in the Sixth Amendment that seem like they might be a little difficult to define, particularly the idea of a speedy trial. What actually counts as speedy? – [Stephanos] The speedy trial component is not well-defined. The Supreme Court has ultimately said, “Well, we’re gonna balance
a bunch of factors. How long is the delay? What’s the reason for the delay? Has the defendant shown any
prejudice from the delay? How long did it take after the defendant requested the speedy trial?” Very rarely does the court actually throw out a case based on that. What happens more often
is that the defendant makes a request and then judges really try to push the case along to be faster. The court has turned it into really focusing on the defendant’s
interest in something fast, and that matters a lot when
a defendant doesn’t make bail and is being held in jail pending trial. Those cases will go to
trial in a matter of months. A case where someone is out on bail can easily take a year or two before it ultimately proceeds to trial. – [Jeffrey] What’s speedy
or what’s reasonable in 1791 might not be speedy or reasonable in 2017. What the courts have said
with respect to speedy is there’s not a bright line rule, say, one year, five years, whatever it might be that somebody has to be brought to trial after being charged. Rather, what the court
does is it considers how diligently the prosecution has tried to pursue the case
in light of other factors such as the complexity of the case, whether the defendant
himself wants the case to go to trial soon or whether the defendant himself has
agreed to certain delays or said that he doesn’t mind them, and whether there’s
prejudice that has occurred which is a legal way of saying whether somebody’s been harmed
or injured by the delay. Say for example a key witness has now died or fled the jurisdiction. Flexible words like speedy in essence translate some measure of discretion and flexibility to the courts. – [Kim] Why is our legal process so much slower than it
was in the 18th century? – [Stephanos] That connects up to the second set of rights we’ve constructed around what makes
something a public trial. One of the main things
there is the jury right. Juries in the 18th century, we didn’t have a jury selection process. The first 12 people who didn’t know the plaintiff or the
defendant or the victim or whoever it was would be empaneled and they would serve
all day and they’d hear all the cases that came that day. You didn’t have lawyers
involved in most of these cases. Usually it was the victim against the defendant himself or herself, no lawyer speaking for either
side, that was the norm. The defendant had a right to hire a lawyer but usually couldn’t afford it and didn’t. There weren’t rules of evidence. There weren’t complicated motions. There weren’t technical jury instructions. The trials themselves took,
as I said an hour, two hours. Pre-trial proceedings did not
involve lots of legal motions ’cause there were no lawyers to run them. The judges themselves often
didn’t have legal training. There were no law schools in America. When you have a system like
that, it’s not that cumbersome there’s very little
incentive to bypass it, and you don’t have professional lawyers who are looking to get this case done with and get on to the next case
or who have seen enough cases that they can bargain back and forth and strike a bargain for this case that’s about where the
previous cases came out. You didn’t have an incentive
for plea bargaining, it wasn’t slow enough. You didn’t have the experts who it would take to run plea bargaining and you didn’t have the lack of investment in your own case that
makes plea bargaining possible or the technical rules. These cases actually all did go to juries and the expectation was
they all would go to juries and the jury right wasn’t
just a right of a defendant, this happened in every
case ’cause the public had a right to do justice itself as well as seeing justice done. – [Kim] I have so many
questions about this. For one thing, do you
think our current system is an improvement on this older system of juries and not so much plea bargaining, and also why is there so
much plea bargaining today? – [Jeffrey] At the time of the Founding, there were no deals to be
made short of a full trial. That’s a huge contrast with today where over 90% of criminal cases in this country are not resolved by trial but rather by what’s called a plea bargain which is a defendant coming in and saying, “Look, I will plead guilty
to a lesser offense, or to the same offense you’re charging but with a guarantee of lesser punishment as long as you don’t require
me to go through a full trial.” The idea is, is that because the system has grown so large and
there are so many cases, that it’s a relief to the prosecution and the court system not to have to have a trial in every case and the benefit to the defendant is that he gets a slightly better deal or is able to plead to a lesser crime. – [Stephanos] Over the
course of the 19th century prosecutors are really taking
over most of these cases. It goes from a few percent
to the lion’s share of cases, and then defense lawyers get hired more and more to counteract that. Once you got prosecutors and
defense lawyers on both sides, and the Sixth Amendment guarantees you the right to hire a defense lawyer, that’s how it’s understood in
the 18th and 19th centuries. The prosecutors and defense lawyers develop rules of evidence
and they develop procedures and jury instructions
and they argue motions. They get more active and the judge gets more passive or reactive. The judge isn’t pushing
the case along as much and the prosecutor and defense
lawyer are slowing it down. That seems like it makes it fairer, but once it gets to a
certain point of being slow the prosecutors wanna
get rid of the cases, they have too many of them. The judges, they have a bunch of civil cases they need to get rid of and so the prosecutors and the judges and the defense lawyers all get together and find ways to bargain the case away rather than spending, now it’s
days on each case for trial. From their point of view it makes sense. They have a faster system
and everyone goes home happy and the prosecutor can pursue more cases and the defendant gets a lighter deal but the prosecution makes sure there’s some conviction and sentence, but from the point of view of the public, the public doesn’t see justice done and the public doesn’t
trust these plea bargains. At the end of the day, what
the defense lawyer’s mostly doing is not making sure there’s a speedy and public trial but bargaining 95% of cases away before there’s a trial. – [Kim] What happens if the defendant can’t afford a legal counsel? – [Jeffrey] The history
of the right to counsel is actually one of the more interesting components of the Sixth Amendment because many of the components have deep roots in the history of England and so were rights that Englishmen enjoyed for many, many years before they were brought over to the colonies and became part of our
Constitution of the United States. The right to counsel is a little bit different in that respect. Criminal defendants in
England and other countries around the time of our founding often did not have a right
to counsel of any kind whether they could pay for it or not. This was a bit of an innovation
on the part of the Framers, recognizing that all of the other rights they were identifying to
defend yourself in court might not amount to
much if you didn’t have expert assistance or at least the right to obtain expert assistance. – [Kim] You’ve described a lot of changes to how our legal system
works over the years. What do you think would
have surprised the Framers most about how our legal
system works today? – [Stephanos] I think they
would have been shocked that a system that was meant to slow down and check governmental power
and protect overreaching and protect the people’s role, has been so subverted that the people are involved in a few percent of cases. They designed a system that’s slower and less efficient by design than the criminal justice system
of continental Europe because they were worried
about the king and the Crown pushing around citizens
and abusing their power. They wanted grand juries to
authorize every criminal charge. We’ve largely gotten
around that in most cases. They wanted petty juries to ensure that every prosecutor’s
charge was justified and that the legislature’s criminal laws weren’t being applied too broadly. Again, prosecutors now
have so many threats and tools and sentences that they can make almost everybody give up
their jury trial rights, but the Framers also weren’t dealing with the volume of cases we’re talking about, and they weren’t focused
primarily on the violent crimes. The federal crimes they
were dealing with were seditious libel,
criticizing the government, violations of the revenue laws, so it’s also fair to point out that they did not expect that these rights were mainly gonna be
limitations that benefited people in rape and murder cases. A lot of these protections
are mainly designed to make sure that the innocent people get vindicated against unjust charges. They might be a little bit surprised that almost all the litigation is by people who may be factually guilty. – [Jeffrey] The next thing
that would have surprised the Framers a great deal, I think, is the role of the jury today. The jury trial right mentioned
in the Sixth Amendment is actually one of the only things mentioned twice in the Constitution. The right to a jury trial
is actually mentioned in the body of the Constitution
itself in Article Four, then it’s mentioned again
in the Sixth Amendment. The reason why is because
the jury were truly the people’s check on the court system and in particular on
the prosecutorial power. Serving on a jury, to the
Framers, was an honor. It was an act of deep political
participation and meaning. In a way that we joke
about jury service today as being something of a nuisance, they viewed it as almost as important as voting for the
president on Election Day. – [Kim] By guaranteeing speedy public trials by jury
and due process by law, the Sixth Amendment ensures that citizens, not the government,
control criminal justice, but today as Professor
Fisher and Judge Bibas note, the Framers might be
surprised to learn that due to the rise of plea bargaining, only a small percentage of
cases go to trial by jury, circumventing this process. To learn more about the Sixth Amendment, visit the National Constitution Center’s interactive Constitution, and Khan Academy’s resources
on US government and politics.

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