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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 stefanos Beavis 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 Beavis 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 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 well the the Crown had railroaded some of its political opponents people like Sir Walter Raleigh people accused in the polka SH plots but 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 to look the witness in the eye and confront him the way it was always done in England as opposed to on continental Europe there is a varied history primarily in England of certain periods of time where people were prosecuted in way 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 and so that kind of a travesty of justice an abuse of power was probably the foremost thing in the framers minds this was partly for the benefit of the defendant or the accused it also was very importantly about protecting the citizen's 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 so 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 by passing 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 so the colonists were very suspicious of the Kings manipulation of criminal justice so how does the sixth amendment inform how the US legal system works today well 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 60s and 70s the Supreme Court applied all of these rights one by one to the States so 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 and so that starts with knowing what you're being charged with whether it's by was 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 well this is fascinating but there are a couple of 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 so what actually counts as speedy 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 and 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 so the court has turned it into really focusing on the defendants interest in something fast and that matters a lot when a defendant doesn't make bail and is being held in jail pending trial so those cases will go to trial on a matter of of months a case where someone is out on bail can easily take a year or two before it ultimately proceeds to trial but speedy or what's reasonable in 1791 might not be speedy or reasonable in 2017 so 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 defendant himself wants the case to go to trial soon or whether the and himself has agreed to certain delays or said that he doesn't mind them and 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 the key witness has now died or fled the jurisdiction so it's it's flexible words like speedy in essence translate some measure of discretion and flexibility to the courts why is our legal process so much slower than it was in the 18th century okay so that that connects up to the second set of Rights we've we've we've constructed around what makes something a public trial and 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 was would be impaneled and they would serve all day and they'd hear all the cases that came that day and 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 at a right to hire a lawyer but usually couldn't afford it and didn't and there weren't rules of evidence there weren't complicated motions there weren't technical jury instructions so the trials themselves took as I said now or two hours pretrial proceedings did not involve lots of legal motions because there were no lawyers to run them the judges themselves often didn't have legal training there were no law schools in America so 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 so 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 you know the lack of investment in your own case that makes plea bargaining possible or that the technical fools so these cases actually all did go to juries and the expectation was they all would go to juries and the jury right wasn't it wasn't just the right of a defendant this happened in every case cuz the public had a right to to do justice itself as well as seeing justice done I have so many questions about this so 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 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 and so 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 or is able to plead to a lesser crime over the course of the 19th century prosecutors are really taking over most of these cases it goes from a few percent to the to the lion's share of cases and then defense lawyers get hired more and more to counteract that well once you have 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 and so they get more active and the judge gets more passive or reactive so the judge isn't pushing the case along as much and the prosecutor and offense ler are slowing it down now that seems like it makes it fairer but once it gets to a certain point of being slow the prosecutors want to 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 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 so 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 for the point of view of the public the public doesn't see justice done and the public doesn't trust these plea bargains but at the end of the day what the defense lawyers mostly doing is not making sure there's a speedy and public trial but bargaining the Katyn 95% of cases away before there's a trial what happens if the defendant can't afford a legal counsel the 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 we're 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 in other countries around the time of the our founding often did not have a right to counsel of any kind whether they could pay for it or not and so this was a bit of an innovation on the fact of the on the part of the framers recognizing that all 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 so you 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 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 subvert 'add that the people are involved in a few percent of cases they designed a system that's it's slower and less efficient by design the in the criminal justice system of continental Europe because they were worried about the king and the crown pushing pushing around citizens and abusing their power they wanted grand juries to authorize every criminal charge well we've largely gotten around that in most cases they wanted Petit juries to ensure that every prosecutors charge was justified and that the Legislature's criminal laws weren't being applied too broadly and 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 were 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 going to be limitations that had benefited people in rape and murder cases a lot of these protections are mainly designed to to make sure that the innocent people get get vindicated against unjust charges and they might be a little bit surprised that almost all the litigation is is by people who may be factually guilty the next thing that would have surprised the framers a great deal I think is the role of the jury today the 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 4 and then it's mentioned again in the sixth amendment and the reason why is because the jury were truly the people's check on the court system and in particular on the prosecutorial power so serving on a jury to the framers was an honor it was an act of 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 you know almost as important as voting for the President on election day by guaranteeing speedy public trials by jury and due process of law the sixth amendment ensures that citizens not the government control criminal justice but today as Professor Fischer and judge Beavis 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