Now this is the FCB Podcast Network. They're greed us all the jeremy and they thought so well one day America. Hi, and welcome back to the Growing Patriot podcast American History for Kids. I'm your host Amelia Hamilton. Today we are continuing our journey through the Bill of Rights with amendments five, six, seven, and eight, because they are all about how we treat people when they're accused of a crime. So they all go together. First, let's see what all of those amendments say. First, up the fifth Amendment. It says, 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 an actual service in time of war or public danger. Nor shall any person be subject, for the same offense 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. Okay, I know that that sounds awfully confusing. So what it really means is that nobody will have to stand trial without probable cause. And remember that something we talked about last week. That means there's a really good reason to think that something happened and this person did it. The next part is something that we call double jeopardy. Means that if you are found not guilty of a crime, you can't be charged with it again, even if there's more evidence or they think of something else. It's over. You've been found not guilty and you will never have to go on trial for it again. The next part is probably what people mostly think of when they hear about the Fifth Amendment, and that is the right not to incriminate yourself, so you don't have to testify against yourself. If you are asked a question, you can say, I plead the Fifth and that means I'm not saying And then at the end it talks about how you will not be deprived of life, liberty, or property, So you can't be put in jail, they can't take your stuff. Nothing can happen unless there's a trial, and that is the decided punishment. The government can't just go ahead and do it. And if something is taken from you like it. Sometimes happens that the government needs a certain piece of land to put a road through or something like that. They have to pay you for it. They can't just take it. The sixth Amendment says, 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 defense. So if you're accused of a crime and you have to go to a trial, they can't just keep you in jail forever and wait for the trial. It has to be speedy, and it also has to be public so everyone can see what happened. The trial has to be near the place where it all happened, and you get a jury of people just like you where you're from to decide if you were guilty or not guilty. You also make sure that you know exactly what you were accused of, and you can have witnesses that say, hey, I don't think that's what happened and stand up for you. And you can also have an attorney so you can have someone on your side advocating for you. On to the Seventh Amendment, it says, in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re examined in any court of the United States than according to the rules of common law. And that just means that a person can have a trial in the federal court with a civil case if there's over a certain dollar value. So if it's a big case, we'll get more into what civil and criminal mean in just a minute. The Eighth Amendment is pretty short. It says excessive bail shall not be required, nor excessive finds imposed, nor cruel and unusual punishments inflicted, And that just protects Americans against crazy punishments. I know that was an awful lot to take in, and I bet you have some questions. So here are the questions. That we from CC this week and then onto the answers. Then at the end I'll wrap it all up for you. Hi. I'm CC. I'm ten years old and live in Milwaukee, Wisconsin. I like ballet contemporary dance. I also love pandas. I have some questions for you about the amendments. Why did Defending Fathers care so much about how criminals are treated? So much that it's almost half of the whole Bill of Rights? How is this different from how justice works in other countries? What's the difference between civil and criminal? Do people ever misunderstand what these amendments do? Do police, lawyers and judges still live by these amendments? I am doctor dar Cohen. I am the vice president of policy at the Texas Public Policy Foundation. Prior to I taught criminal procedure at the University of Cincinnati to undergraduates and graduates. All right, so you know this stuff well and you've even taught it before. That is perfect. So I'd like to dive in with one of CC's questions, which is kind of the big one, and that is why did the founders care so much about how accused criminals were treated? I mean, it's four out of ten amendments in the Bill of Rights, so they took it very seriously. Yeah, So the important thing to remember when you look at the Western system of justice, specifically on the criminal side, is that unlike in nearly every pre existing system that came before, is that what we have is what's known as an accusatorial system. As oppose you would inquisitorial system now, and an inquisitorial system, what they would have is basically the judge would act not only as primary fact finder, but also the one who eventually, in most cases, pronounced guilt and there might be a defense, a public defense, or some other of those that components that tending to be the way that most of these courts were constituated basically from you know, from the Middle Ages onward. So what we see different in u in the American system is if we really look at how the Enlightenment animated many of our government institutions. Obviously, the fact that the sovereign, so to speak, in our system is the individual is the citizen. You know, it is not necessarily appropriate to have an inquisitorial system. So therefore we do have a system of laws wherein you violate against the state and That's still something that I think is, you know, people are tending to be grappling with at the current moment. Whereas in you know, whereas I would not violate if I were to go out and steal a car, why yes, there would be a victim that would be that car's owner. But my bigger offense would be against the state. Now that derives from the against the King's peace and whatnot. But then in that case, then the state does not necessarily act as the sole fact finder. It acts as both the prosecutor and quite literally in this case, and it would also be the judge. A separate element of the state would basically be the referee calling balls and strikes. Now, what animates this, what animates is that if you look at the time leaning up to the genesis of the Bill of Rights, the Bill of Rights were meant to be this adjunct, you know, this adjunct of full liberty realizing amendments, and those came from you know, basically every single one one through ten came from some sort of abuse of the crown in the College, whether it we're talking about the Fourth Amendment, we had King's agents that would you know, basically on general warrens just go into your house and you see what they could rustle up times a crime. Sometimes they wouldn't, Sometimes they would fabricate evidence of a crime. Uh. And then oftentimes you were then renditioned across the sea and having to be tried, if not tried locally by the King's court. When we were still in the colonial phase, you would have to be tried over overseas where and if you had a lawyer, that was again I'm progressing through the amendments here, uh where if you had a lawyer, you know, that was more the exception than the rule. And then of course we come to the eighth Amendment where and you know, when you have true arbitrary power, which is what the Bill of Rights generally sought to tamp down on. When you have true arbitrary power, you know that which is cruel and unusual can just be meted out without any sort of check or balance. So again, the founders weren't and this is where it gets interesting. The Founders weren't animated by pro criminality. They were they weren't. They weren't very excited about criming. But they essentially said, look, we've grown, you know, we have basically been this, you know, part of this empire overseas. You know, we had this benign neglect going on for centuries and which we basically found a good way to govern ourselves. And so all the different uh, you know, abuses of the crown, they say, never again. So we are going to ensconce this process within the very document by which we constitute our nation. And so that's going to have the highest, hardest to reverse standard. And that's why we want to pry. And again not because we're so pro criminal, but because we're so pro individual and when we do punish individuals, we don't want it to be arbitrary. We don't want to be capricious. We want it to be because we're actually punishing an individual that we have found through this process we can say is guilty of violating this quaw. Yeah. Absolutely, And you touched a little bit on one of CC's other questions, which was how this works differently from justice in other countries. Can you tell us a little bit more about that? Sure? And and there's you know, there's almost no country that exists in which there is so little rule of law and so little government structure that there is essentially no crime in so far as formal procedure. But if you look at what we have throughout more of the Eastern tradition and even a lot in a Western tradition. Again, is that is that inquisitorial justice systems. But if you have to contrast parliament with the way we do things over here, Parliament was essentially or is essentially, you know, an institution of a right of right granting institution unto itself, whereas here where the individual we have all the rights, you know, and once in a while we get together to send another person to DC, or another person to Austin, or another person to city Hall in order to do our political work socially for us. And so again this is why we talk about the people being sovereign, not because we are getting together to elect one of our social betters who has then a member of Parliament, but because we actually say we get together and elect from people that volunteer someone essentially go do our dirty work while we go about living our private lives in society. So that's the main contrast, and that's why you see the accusatorial system that we run here being the only one really compatible with that view of government. Whereas the one that they have overseas, and you know a lot of even other English speaking countries, tends to be more one where the state is supreme and is the arbiter. Here again, the same reason we have a jury of our peers. It's because the state's not supreme. The individual is supreme. And if you're going to be sentenced to you know, sentenced to lose your freedoms, it's going to have to come from twelve other individuals who have who are also parts of that social pathorn. Yeah, okay, so I know that there are there are two different types of crime discussed in the Bill of Rights. There's criminal and civil. So can you tell us what those words mean? Sure? And this is actually it's interesting because in the this is a great first or second year law student question. Well that's what it's from an elementary schooler. So she did a good time, which I mean, this is a great Well, no, that's I'm looking at these quess These questions are absolutely fantastic. CEC. I mean the first to want to be the first to say that that these are really great questions. So what they ask this question? Because the civil and criminal canon, especially these days, are very intermingled, so the lines are not as not as clear as they once are. A good rule of thumb for this is anything that where you're when somebody else, when you're treading on somebody else's liberties, rights, whatever the case might be, that tends to be something in the civil realm. But when you actually violate the law, that is again if you think about it as the king's piece or you know, the civil piece here. You know, like let's say that you are, you know, acting disorderly in public, driving the wrong way down the wrong or drawing the wrong way down the street, you know, or damaging other people's property wantingly, while you still might be liable for replacing that property. On the civil side. The violation of the peace will then engender the actual criminal penalties, and that can be more traditional, which again can include finds and fees, but I can also include putting somebody in jail. Right, So you mentioned that this the lines get a little bit blurry between things sometimes, and times have changed a lot since two hundred some years ago. So today, um, you know, our justice system to these amendments get misunderstood. Yeah, I think so. And it's not because I don't think it's because there's there's malice foot I think it's because they get misunderstood a lot because what they actually do when they were conceived. And this is where we get into this much larger argument of textualism versus originalism versus you know, an evolutionary constitution. Um you know it said aually they are written in a specific time with specific fact patterns in mind. However, they don't deal with just specific fact patterns. Take the Second Amendment for example. You know a lot of people say, okay, well this protects the common law right to self defense, and they say, oh, oh, this only regulates the very weapons that were in use at the time, even though that's been largely rejected by you know, both liberal and conservative jurisprudence, you know, going back late some time. But the problem is, again, they protect these abstract principles, but the principles themselves are the vessels that move through through the waves of time. And so whereas we have to say what is the you know, what is the core construct of the Second Amendment, then they think the common law right to self defense? And then they say, okay, well, how do we extrapolate that out now here? When you know, we have all these different weapons. You know, some are more deadly than they had back then, But does that change the actual principle of that of that right. Everyone's seeing that the shows that you have the right to remain Yeah. Yeah, And nowhere in the Constitution does it say that an actual suspect must be admonished, that they need that they have the right to remain silent. What it does say, though, and the way it has been interpreted, is that they cannot act as a basically a tool of the prosecution against them. So, in other words, if you are making statements to the police that can be used in any sort of prosecutorial effort against you. And so the answer that the court had then was to say, we need to admonish the arrestees to let them know that they they're facing jeopardy, which tends to be must be that, and so that they need to basically pipe down, so you don't you don't give the prosecutor more than they needed. And so again it's trying to find what the actual origin. And then that's the exercise we all go through, both in law and in policy, is finding what that original meaning is. In the sixth Amendments, pacifically in the right the council. Now you know the way it was a vision in the six Commandities that you could not be denied council, meaning that you did not actually have, you know, if you had a lawyer that knew the law, because you know, I say, I'm you know, we're in Boston in the seventeen hundreds and I'm just a poor farmer. Well, I know a guy up the street who runs a business whose brothers a lawyer might be able to help me out if I'm in trouble with the state or the Crown as it were. Whereas that was a problem prior too. Here the way right it now post Gideon and v. Wainwright in the nineteen sixties, is that it has actually gone from the right to not being barred from having an attorney the right to be provided with an attorney. So again, are they applied the way they were meant to? I'd like to think that that's the goal, but again, this is the this is the past that people that deal with the law and deal with policy have on a daily basis. So really make sure that they're trying to live within that original intent. Or if we don't like the original intent anymore. It's a high bar, but there is a very prescribed way of getting that change. Yeah. So it's the last question I've been whenever I have a guest on to talk about a different amendment or set of amendments. In this case, we talk about if they are under any kind of threat and what all of us can be watching for. You know, are we still in the general same interpreted spot. I think the founders would want us to be. I generally do, insofar as the animating principle is saying that the state should not be supreme to the individual. The state can take away somebody's liberties, they can take away somebody's life pursuant to some actions that they've done, but that that needs to arise from other citizens. It can't be the state, for its own sake that are doing that now. Individual lawyers, prosecutors, judges, police, I think they struggle with that, not because they're not because they're bad people, but they all have a different role to play within our system by design, by design, they have that different role to play in Those roles are inherently in ton. They all have individuals, they all have individual incentive structures, and they all have different jobs that are competing with each other. The best way to have it is so that no one interest is ascended. And if that, even if every single member of the system were power mad didn't really wanted to run rough shot over there, they couldn't do so without the acquiescence of the others. And so that's where I think, you know, I think the genius of the American system is specifically that's how it applies with the criminal justicide, but that particular dynamic applies throughout. Yeah, we've definitely talked a lot about checks and balances. All right, Well, thank you so much for joining us today and giving us an overview of Amendments five through eight. We appreciate it anytime. Anytime is great talking to you. I know that was an awful lot to think about. So I'm going to break it down for you just a little bit. Just about every society has some kind of system that they use for justice. So when someone does something wrong, there's a way that it works. Before America, most countries had what's called an inquisitorial system, and that means that there's not a lot of difference in the jobs. There aren't different people who investigate a crime and then different people who take the case to court to decide if someone's guilty and decide what their punishment is. And then we have what's called an accusatorial system. So the prosecution, the people who accuse someone of a crime, and the defense, who are the people who say they didn't do it, have to compete to see who has the best evidence, and the judge and a jury decide. And there's also a separation of powers, kind of like we talked about in the three Branches of government, so that the people who collect the evidence and investigate aren't the same people who then try the crime and court. It's a lot more focused on liberty and making sure the person has a fair trial instead of the inquisitorial system that makes sure that someone gets punished. That was so important to our founders because really the whole Bill of Rights is just reacting to how the King and how Britain treated American colonists. So they wanted to make sure that none of that could happen again. They were going to set up a really fair system because the colonists weren't always treated well. Sometimes they were dragged back to England and had to have a trial in front of a bunch of people that didn't know anything about them or the way that they lived, and a lot of times people didn't even have a lawyer. When America was a colony, the king could use something that Derek called arbitrary power, and that means that they had so much power that they could just kind of do whatever they wanted. That was not going to happen in this new United States of America. But it's important to remember that the founders weren't in favor of crime. They didn't want criminals running around doing terrible things, but they just wanted to make sure that every individual was protected. So it's about protecting individuals, not about protecting criminals. Specifically, during the colonial period, there was something that Derek called benign neglect, and that means that the callings were pretty much left alone in a good way, and we got to govern ourselves. And that's one of the reasons it was so startling for the colonists when suddenly Britain stopped minding their own business and forcing the colonies to pay taxes and do other things. They were going to make sure that those kind of things never happened again, and that punishment would always be fair. Now, let's talk about the difference between civil and criminal. Civil law is about private things, things that happen between people or between different organizations. Criminal law is a way to protect the public, so that's usually bigger stuff. But like Derek said, these days those lines are getting a little bit blurry. But he also said that when people misunderstand the fifth through eighth Amendment, it's not because they're trying to be difficult or be mean. They just argue about how to read the Constitution. And that is a big deal these days. You know, it's really specific to the time it was written. You know, we don't have to worry about quartering soldiers anymore. There are things that don't apply and there are things that do. So when some people read the Constitution and the Bill of Rights, they think, well, that was written a long time ago and that's not really how it works today. So let's try to update it. And some people think, well, this is what they meant, and if we get down to what they meant, it definitely still applies today. And like Derek said, the principles are what we're protecting. So let's take the Fourth Amendment for example, even though that's not one of today's amendments. When the Bill of Rights was written, it was mostly about going into people's houses, but now the Fourth Amendment also protects being able to read somebody's emails, or looking at your Google searches, or listening in on your phone calls. The phoning. Fathers didn't know that any of those things would exist, but it was about protecting your privacy, and with that general principle in mind, we can still protect that to day. But that doesn't mean that things never change. Like Derek mentioned, the Fifth Amendment says that you don't have to tell on yourself, but it never said that everybody had to be reminded of that right when they were arrested. But now that happens. You've probably seen a police TV show where they say you have the right to remain silent. That's what that's all about. Or in the sixth Amendment, it used to just say that if you wanted a lawyer, you were absolutely allowed to have one, but that's changed and now if you can't afford to have an attorney, the court will pay for you to have one so that you can have a really good defense on your side, because not having the money to pay for a lawyer was not going to get in the way of anyone's constitutional rights. Of course, we can also add amendments to the Constitution, which is we're talking about some of those amendments now. It's a really big deal and it's really hard to do, but if it's important and enough people agree on it, it can be done. Overall, our criminal justice system is still doing pretty well because the individual is still the most important thing. But we always have to stay aware to make sure that our rights don't slip away. I'm going to end this episode with just a quick story. It's a great reminder of just how important justice was to our founders. Think back to the Boston massacre. You can go back and listen to that episode, but as a quick reminder, this happened in seventeen seventy and a group of nine British soldiers shot into a crowd of colonists who were harassing them and five people were killed. Our founding father, John Adams, who signed the Declaration of Independence and even became our second president. So you know, he was a big American patriot. He wanted to make sure that even those British soldiers had a fair trial. He was a lawyer, so he defended them himself. This was important for a couple of reasons. He wanted to make sure that Britain wouldn't have anything to complain about their soldiers were treated fairly, and he wanted to show everyone what America could be, so anybody who maybe wasn't so sure about independence would realize that the Patriots weren't bad people. They wanted something really special. Eight officers ended up being arrested, and after that trial, six of them more acquitted or found not guilty. The other two were convicted. They were found guilty. That's what the evidence was able to prove. So that's what Jerry decided. And you can't get much more fair than that. Well that's all for this episode of the Growing Patriot podcast. Remember to like and subscribe to the podcast wherever you listen, and maybe tell a couple of friends about it. In the meantime. You can find us on Twitter, Facebook, and Instagram at Growing Patriots and you can find the Growing Patriot book at Growing Patriots dot com. See you next time they create us. All jarreany standing and they thought so we would be America. This has been a presentation of the FCB Podcast Network where real talk lifts. Visit us online at FCB podcasts dot com.
