The Sixth Amendment | National Constitution Center | Khan Academy

Hi, this is Kim from Khan Academy. Today I'm learning about the Sixth Amendment to the U.S. 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 Bibis is a United States Circuit Judge for the U.S. 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 Bibis, 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 and other political trials. 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 crown had railroaded some of its political opponents, people like Sir Walter Raleigh, and people accused in the Popish plots during the strife between Catholics and Protestants. Some of these convictions were later understood to have been wrongful ones. 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 had always been 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 ways that the founders deemed fundamentally unfair. Probably the most notorious example was the Star Chamber, a moniker given to a king-run tribunal decades before the founding where people were picked up, arrested, and then sentenced to criminal punishment—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.

So that kind of a travesty of justice and 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 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.

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 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.

So how does the Sixth Amendment inform how the U.S. 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.

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.

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 going to 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.

So 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. So 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.

What's 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 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. So 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 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. So the trials themselves took, as I said, an hour, 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.

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. 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 just the right of a defendant. This happened in every case because the public had a right to do justice itself as well as seeing justice done.

Oh, 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. This 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.”

So the idea is that because the system has grown so large and there are so many cases, it's a relief to the prosecution and the court system not to have to have a trial in every case. The benefit to the defendant is that he gets a slightly better deal, 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 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. 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 defense lawyers 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 have a bunch of civil cases they need to get rid of, and so the prosecutors, judges, and 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 from 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 lawyer is mostly doing is not making sure there's a speedy and public trial but bargaining 95% of cases away before there's a trial.

What happens if the defendant can't afford legal counsel?

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 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.

So this was a bit of an innovation 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'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?

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 is 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.

Well, 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 going to be limitations that benefited people in rape and murder cases. A lot of these protections are mainly designed to make sure that innocent people get vindicated against unjust charges, and they might be a little bit surprised that almost all the litigation 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 jury trial right mentioned in the Sixth Amendment is actually one of the only things mentioned twice in the Constitution. The right to jury trial is actually mentioned in the body of the Constitution itself in Article IV, and then it's mentioned again in the Sixth Amendment.

The reason why is because the jury was 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 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.

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 Fisher and Judge Bibis 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.

To learn more about the Sixth Amendment, visit the National Constitution Center's interactive constitution and Khan Academy's resources on U.S. government and politics.