- [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.