Ep. 91 – The Bill of Rights and crime

Amendments 5-8 are all about protecting the rights of someone who has been accused of a crime. That's almost half of the whole Bill of Rights! So, why did our founders care so much? Let's find out.

Episode Transcript

(00:00):
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

(00:32):
Growing Patriot podcast American History for Kids. I'm your host Amelia Hamilton. Today
we are continuing our journey through theBill of Rights with amendments five, six,
seven, and eight, because theyare all about how we treat people
when they're accused of a crime.So they all go together. First,

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let's see what all of those amendmentssay. First, up the fifth Amendment.
It says, no person shall beheld to answer for a capital or
otherwise infamous crime, unless on apresentment or indictment of a grand jury,
except in cases arising in the landor naval forces, or in the militia
when an actual service in time ofwar or public danger. Nor shall any

(01:18):
person be subject, for the sameoffense to be twice put in jeopardy of
life or limb. Nor shall becompelled, in any criminal case to be
a witness against himself, nor bedeprived of life, liberty, or property
without due process of law. Norshall private property be taken for public use
without just compensation. Okay, Iknow that that sounds awfully confusing. So

(01:44):
what it really means is that nobodywill have to stand trial without probable cause.
And remember that something we talked aboutlast week. That means there's a
really good reason to think that somethinghappened and this person did it. The
next part is something that we calldouble jeopardy. Means that if you are
found not guilty of a crime,you can't be charged with it again,

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even if there's more evidence or theythink of something else. It's over.
You've been found not guilty and youwill never have to go on trial for
it again. The next part isprobably what people mostly think of when they
hear about the Fifth Amendment, andthat is the right not to incriminate yourself,
so you don't have to testify againstyourself. If you are asked a
question, you can say, Iplead the Fifth and that means I'm not

(02:28):
saying And then at the end ittalks 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. Nothingcan 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 takenfrom you like it. Sometimes happens that

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the government needs a certain piece ofland to put a road through or something
like that. They have to payyou 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 andpublic trial by an impartial jury of the
state and district wherein the crime shallhave been committed, which district shall have

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been previously ascertained by law, Andto be informed of the nature and cause
of the accusation, to be confrontedwith the witnesses against him, to have
compulsory process for obtaining witnesses in hisfavor, and to have the assistance of
counsel for his defense. So ifyou're accused of a crime and you have
to go to a trial, theycan't just keep you in jail forever and

(03:32):
wait for the trial. It hasto be speedy, and it also has
to be public so everyone can seewhat 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 todecide if you were guilty or not guilty.
You also make sure that you knowexactly what you were accused of,

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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 sideadvocating for you. On to the Seventh
Amendment, it says, in suitsat common law, where the value in
controversy shall exceed twenty dollars, theright of trial by jury shall be preserved,

(04:15):
and no fact tried by a juryshall be otherwise re examined in any
court of the United States than accordingto the rules of common law. And
that just means that a person canhave a trial in the federal court with
a civil case if there's over acertain dollar value. So if it's a
big case, we'll get more intowhat civil and criminal mean in just a

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minute. The Eighth Amendment is prettyshort. It says excessive bail shall not
be required, nor excessive finds imposed, nor cruel and unusual punishments inflicted,
And that just protects Americans against crazypunishments. I know that was an awful
lot to take in, and Ibet you have some questions. So here

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are the questions. That we fromCC this week and then onto the answers.
Then at the end I'll wrap itall up for you. Hi.
I'm CC. I'm ten years oldand live in Milwaukee, Wisconsin. I
like ballet contemporary dance. I alsolove pandas. I have some questions for

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you about the amendments. Why didDefending Fathers care so much about how criminals
are treated? So much that it'salmost half of the whole Bill of Rights?
How is this different from how justiceworks in other countries? What's the
difference between civil and criminal? Dopeople ever misunderstand what these amendments do?

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Do police, lawyers and judges stilllive by these amendments? I am doctor
dar Cohen. I am the vicepresident of policy at the Texas Public Policy
Foundation. Prior to I taught criminalprocedure at the University of Cincinnati to undergraduates

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and graduates. All right, soyou 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 iskind of the big one, and that
is why did the founders care somuch about how accused criminals were treated?
I mean, it's four out often amendments in the Bill of Rights,
so they took it very seriously.Yeah, So the important thing to remember

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when you look at the Western systemof justice, specifically on the criminal side,
is that unlike in nearly every preexisting system that came before, is
that what we have is what's knownas an accusatorial system. As oppose you
would inquisitorial system now, and aninquisitorial system, what they would have is

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basically the judge would act not onlyas primary fact finder, but also the
one who eventually, in most cases, pronounced guilt and there might be a
defense, a public defense, orsome other of those that components that tending
to be the way that most ofthese courts were constituated basically from you know,
from the Middle Ages onward. Sowhat we see different in u in

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the American system is if we reallylook at how the Enlightenment animated many of
our government institutions. Obviously, thefact that the sovereign, so to speak,
in our system is the individual isthe citizen. You know, it
is not necessarily appropriate to have aninquisitorial system. So therefore we do have

(07:44):
a system of laws wherein you violateagainst 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 youknow, whereas I would not violate if
I were to go out and steala car, why yes, there would
be a victim that would be thatcar's owner. But my bigger offense would
be against the state. Now thatderives from the against the King's peace and

(08:07):
whatnot. But then in that case, then the state does not necessarily act
as the sole fact finder. Itacts as both the prosecutor and quite literally
in this case, and it wouldalso be the judge. A separate element
of the state would basically be thereferee calling balls and strikes. Now,

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what animates this, what animates isthat if you look at the time leaning
up to the genesis of the Billof Rights, the Bill of Rights were
meant to be this adjunct, youknow, this adjunct of full liberty realizing
amendments, and those came from youknow, basically every single one one through
ten came from some sort of abuseof the crown in the College, whether

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it we're talking about the Fourth Amendment, we had King's agents that would you
know, basically on general warrens justgo 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 betried, if not tried locally by the

(09:13):
King's court. When we were stillin the colonial phase, you would have
to be tried over overseas where andif 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 theexception than the rule. And then
of course we come to the eighthAmendment where and you know, when you
have true arbitrary power, which iswhat the Bill of Rights generally sought to

(09:35):
tamp down on. When you havetrue arbitrary power, you know that which
is cruel and unusual can just bemeted out without any sort of check or
balance. So again, the foundersweren'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. Butthey essentially said, look, we've grown,

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you know, we have basically beenthis, you know, part of
this empire overseas. You know,we had this benign neglect going on for
centuries and which we basically found agood way to govern ourselves. And so
all the different uh, you know, abuses of the crown, they say,
never again. So we are goingto ensconce this process within the very
document by which we constitute our nation. And so that's going to have the

(10:20):
highest, hardest to reverse standard.And that's why we want to pry.
And again not because we're so procriminal, 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 foundthrough this process we can say is guilty
of violating this quaw. Yeah.Absolutely, And you touched a little bit

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on one of CC's other questions,which was how this works differently from justice
in other countries. Can you tellus 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 oflaw and so little government structure that there
is essentially no crime in so faras formal procedure. But if you look

(11:07):
at what we have throughout more ofthe Eastern tradition and even a lot in
a Western tradition. Again, isthat is that inquisitorial justice systems. But
if you have to contrast parliament withthe 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

(11:28):
the rights, you know, andonce in a while we get together to
send another person to DC, oranother person to Austin, or another person
to city Hall in order to doour political work socially for us. And
so again this is why we talkabout the people being sovereign, not because
we are getting together to elect oneof our social betters who has then a

(11:50):
member of Parliament, but because weactually say we get together and elect from
people that volunteer someone essentially go doour dirty work while we go about living
our private lives in society. Sothat's the main contrast, and that's why
you see the accusatorial system that werun here being the only one really compatible

(12:11):
with that view of government. Whereasthe one that they have overseas, and
you know a lot of even otherEnglish speaking countries, tends to be more
one where the state is supreme andis the arbiter. Here again, the
same reason we have a jury ofour peers. It's because the state's not
supreme. The individual is supreme.And if you're going to be sentenced to

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you know, sentenced to lose yourfreedoms, it's going to have to come
from twelve other individuals who have whoare also parts of that social pathorn.
Yeah, okay, so I knowthat there are there are two different types
of crime discussed in the Bill ofRights. There's criminal and civil. So
can you tell us what those wordsmean? Sure? And this is actually

(12:56):
it's interesting because in the this isa great first or second year law student
question. Well that's what it's froman 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 Thesequestions are absolutely fantastic. CEC. I
mean the first to want to bethe first to say that that these are
really great questions. So what theyask this question? Because the civil and

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criminal canon, especially these days,are very intermingled, so the lines are
not as not as clear as theyonce are. A good rule of thumb
for this is anything that where you'rewhen somebody else, when you're treading on
somebody else's liberties, rights, whateverthe case might be, that tends to

(13:43):
be something in the civil realm.But when you actually violate the law,
that is again if you think aboutit 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 downthe street, you know, or damaging
other people's property wantingly, while youstill might be liable for replacing that property.

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On the civil side. The violationof the peace will then engender the
actual criminal penalties, and that canbe more traditional, which again can include
finds and fees, but I canalso include putting somebody in jail. Right,
So you mentioned that this the linesget a little bit blurry between things
sometimes, and times have changed alot since two hundred some years ago.

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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 Ithink it's because they get misunderstood a lot
because what they actually do when theywere conceived. And this is where we
get into this much larger argument oftextualism versus originalism versus you know, an

(14:56):
evolutionary constitution. Um you know itsaid 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 SecondAmendment for example. You know a lot
of people say, okay, wellthis protects the common law right to self
defense, and they say, oh, oh, this only regulates the very

(15:20):
weapons that were in use at thetime, even though that's been largely rejected
by you know, both liberal andconservative jurisprudence, you know, going back
late some time. But the problemis, again, they protect these abstract
principles, but the principles themselves arethe vessels that move through through the waves
of time. And so whereas wehave to say what is the you know,

(15:43):
what is the core construct of theSecond Amendment, then they think the
common law right to self defense?And then they say, okay, well,
how do we extrapolate that out nowhere? When you know, we
have all these different weapons. Youknow, some are more deadly than they
had back then, But does thatchange the actual principle of that of that
right. Everyone's seeing that the showsthat you have the right to remain Yeah.

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Yeah, And nowhere in the Constitutiondoes it say that an actual suspect
must be admonished, that they needthat 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 abasically a tool of the prosecution against
them. So, in other words, if you are making statements to the
police that can be used in anysort of prosecutorial effort against you. And

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so the answer that the court hadthen was to say, we need to
admonish the arrestees to let them knowthat they they're facing jeopardy, which tends
to be must be that, andso that they need to basically pipe down,
so you don't you don't give theprosecutor more than they needed. And
so again it's trying to find whatthe actual origin. And then that's the

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exercise we all go through, bothin law and in policy, is finding
what that original meaning is. Inthe sixth Amendments, pacifically in the right
the council. Now you know theway it was a vision in the six
Commandities that you could not be deniedcouncil, meaning that you did not actually
have, you know, if youhad a lawyer that knew the law,
because you know, I say,I'm you know, we're in Boston in

(17:12):
the seventeen hundreds and I'm just apoor farmer. Well, I know a
guy up the street who runs abusiness whose brothers a lawyer might be able
to help me out if I'm introuble with the state or the Crown as
it were. Whereas that was aproblem 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 rightto not being barred from having an attorney

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the right to be provided with anattorney. 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 thisis the past that people that deal
with the law and deal with policyhave on a daily basis. So really
make sure that they're trying to livewithin that original intent. Or if we
don't like the original intent anymore.It's a high bar, but there is

(17:59):
a very prescribed way of getting thatchange. Yeah. So it's the last
question I've been whenever I have aguest on to talk about a different amendment
or set of amendments. In thiscase, we talk about if they are
under any kind of threat and whatall of us can be watching for.
You know, are we still inthe general same interpreted spot. I think
the founders would want us to be. I generally do, insofar as the

(18:22):
animating principle is saying that the stateshould 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

(18:45):
struggle with that, not because they'renot because they're bad people, but they
all have a different role to playwithin our system by design, by design,
they have that different role to playin Those roles are inherently in ton.
They all have individuals, they allhave individual incentive structures, and they
all have different jobs that are competingwith each other. The best way to

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have it is so that no oneinterest is ascended. And if that,
even if every single member of thesystem were power mad didn't really wanted to
run rough shot over there, theycouldn't do so without the acquiescence of the
others. And so that's where Ithink, you know, I think the
genius of the American system is specificallythat's how it applies with the criminal justicide,

(19:30):
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 anoverview of Amendments five through eight. We
appreciate it anytime. Anytime is greattalking to you. I know that was

(19:56):
an awful lot to think about.So I'm going to break it down for
you just a little bit. Justabout every society has some kind of system
that they use for justice. Sowhen 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'snot a lot of difference in the jobs.

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There aren't different people who investigate acrime and then different people who take
the case to court to decide ifsomeone's guilty and decide what their punishment is.
And then we have what's called anaccusatorial system. So the prosecution,
the people who accuse someone of acrime, and the defense, who are
the people who say they didn't doit, have to compete to see who

(20:41):
has the best evidence, and thejudge and a jury decide. And there's
also a separation of powers, kindof like we talked about in the three
Branches of government, so that thepeople who collect the evidence and investigate aren't
the same people who then try thecrime and court. It's a lot more
focused on liberty and making sure theperson has a fair trial instead of the

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inquisitorial system that makes sure that someonegets punished. That was so important to
our founders because really the whole Billof 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 alwaystreated well. Sometimes they were dragged back

(21:26):
to England and had to have atrial in front of a bunch of people
that didn't know anything about them orthe way that they lived, and a
lot of times people didn't even havea lawyer. When America was a colony,
the king could use something that Derekcalled arbitrary power, and that means
that they had so much power thatthey could just kind of do whatever they
wanted. That was not going tohappen in this new United States of America.

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But it's important to remember that thefounders weren't in favor of crime.
They didn't want criminals running around doingterrible things, but they just wanted to
make sure that every individual was protected. So it's about protecting individuals, not
about protecting criminals. Specifically, duringthe colonial period, there was something that

(22:10):
Derek called benign neglect, and thatmeans that the callings were pretty much left
alone in a good way, andwe got to govern ourselves. And that's
one of the reasons it was sostartling for the colonists when suddenly Britain stopped
minding their own business and forcing thecolonies to pay taxes and do other things.

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They were going to make sure thatthose kind of things never happened again,
and that punishment would always be fair. Now, let's talk about the
difference between civil and criminal. Civillaw 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 biggerstuff. But like Derek said, these

(22:52):
days those lines are getting a littlebit blurry. But he also said that
when people misunderstand the fifth through eighthAmendment, it's not because they're trying to
be difficult or be mean. Theyjust argue about how to read the Constitution.
And that is a big deal thesedays. You know, it's really
specific to the time it was written. You know, we don't have to

(23:12):
worry about quartering soldiers anymore. Thereare things that don't apply and there are
things that do. So when somepeople 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

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we get down to what they meant, it definitely still applies today. And
like Derek said, the principles arewhat we're protecting. So let's take the
Fourth Amendment for example, even thoughthat'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 protectsbeing able to read somebody's emails,

(23:55):
or looking at your Google searches,or listening in on your phone calls.
The phoning. Fathers didn't know thatany 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, theFifth Amendment says that you don't have to
tell on yourself, but it neversaid that everybody had to be reminded of

(24:19):
that right when they were arrested.But now that happens. You've probably seen
a police TV show where they sayyou have the right to remain silent.
That's what that's all about. Orin the sixth Amendment, it used to
just say that if you wanted alawyer, you were absolutely allowed to have
one, but that's changed and nowif you can't afford to have an attorney,

(24:40):
the court will pay for you tohave 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 toget in the way of anyone's constitutional rights.
Of course, we can also addamendments to the Constitution, which is
we're talking about some of those amendmentsnow. It's a really big deal and
it's really hard to do, butif it's important and enough people agree on

(25:03):
it, it can be done.Overall, our criminal justice system is still
doing pretty well because the individual isstill the most important thing. But we
always have to stay aware to makesure that our rights don't slip away.
I'm going to end this episode withjust a quick story. It's a great
reminder of just how important justice wasto our founders. Think back to the

(25:26):
Boston massacre. You can go backand listen to that episode, but as
a quick reminder, this happened inseventeen seventy and a group of nine British
soldiers shot into a crowd of colonistswho were harassing them and five people were
killed. Our founding father, JohnAdams, who signed the Declaration of Independence
and even became our second president.So you know, he was a big

(25:48):
American patriot. He wanted to makesure 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 theirsoldiers were treated fairly, and he wanted
to show everyone what America could be, so anybody who maybe wasn't so sure

(26:11):
about independence would realize that the Patriotsweren't bad people. They wanted something really
special. Eight officers ended up beingarrested, and after that trial, six
of them more acquitted or found notguilty. The other two were convicted.
They were found guilty. That's whatthe evidence was able to prove. So
that's what Jerry decided. And youcan't get much more fair than that.

(26:42):
Well that's all for this episode ofthe Growing Patriot podcast. Remember to like
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(27:08):
jarreany standing and they thought so wewould be America. This has been a
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(27:30):
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