Unbiased University: Everything You Need to Know About the 4th, 5th, and 6th Amendments to the United States Constitution

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1:00Head over to bomb us dot com slash unbiased, and use code unbiased for 20% off your first purchase. That's b-o-m-b-a-s dot com slash unbiased code unbiased at checkout. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to unbiased politics. And to episode three of the unbiased university series, I am officially on maternity leave, but rather than leaving you hanging for six to eight weeks, I created unbiased university. So I want you to think of the series as a condensed law school education, right? I want you to imagine that every time you're tuning into one of these episodes, you are sitting down in a 30 to 45 minute law school class with me as your professor. And in each class, we will cover a different topic and talk about various cases and laws that have shaped those topics by the end of the series. You will have obtained your imaginary degree from unbiased university,

2:03which means that when I come back, you will be fully prepared for the show. And you know, when we think about what the what unbiased politics consists of, right? We're always talking about executive orders. And laws and Supreme Court opinions. And all of these concepts are rooted in things like the Constitution, the Bill of Rights, the three branches of government, the Supreme Court presidential elections. There's just so much to know about our government. And I just, yeah, I think it's really important that we all kind of get a refresher because maybe in middle school, we took these civics or social studies classes, but we have forgotten a lot of it. So now is the time to kind of refresh our memories. Now, although I am on maternity leave as a reminder, if you are still interested in getting an unbiased front-down of current events, I will still be cranking out articles on Sub-Zach when I can. So if you're interested in joining, it is free.

3:03You just have to click the link in the show notes of this episode and enter your email address and you will get those articles when they go out. Okay, so the first episode in this series was all about the United States Constitution. And if you haven't yet listened to that episode, I highly recommend listening to that episode first and then tuning into this episode. It's not a necessity, but at least you'll kind of get a foundation for this episode. If you do do it that way, in the episode right before this one, we covered the first, second, and third amendments of the Constitution. Today, we'll be covering the fourth, fifth, and sixth amendments. And then in the next episode, we will cover the seventh, eighth, ninth, and tenth amendments. Together, those episodes will make up the first ten amendments to the Constitution, otherwise known as the Bill of Rights. And then from there, we will move on to other topics. So without further ado, let's get into today's episode. As I briefly just mentioned, the ten amendments to the Constitution, the first ten,

4:06make up what we call the Bill of Rights. When it came time to ratify the Constitution, there were multiple states that were concerned that the Constitution did not adequately address personal liberties. So the framers made these states a promise through what's called the Massachusetts Compromise, that once the Constitution was ratified, they would get to work on amendments to guarantee personal liberties. And that is exactly what they did. Now, to really understand the amendments, it's important to understand one thing. And that is that the framers of the Constitution were very much so against concentrated government power. They had just fought a war to escape it. And they weren't about to allow the United States government to usurp the same amount of power that the British government had. So the first ten amendments are really about setting boundaries on what the government can control, how far the government can go, and how much the government's power is able to bleed into

5:11people's lives, and then, you know, of course, drawing the boundaries. And specifically, the fourth, fifth, and sixth amendments really can be summed up as setting the rules that the government has to follow when investigating crimes, charging people with crimes, and putting people on trial. The fourth amendment focuses on searches and privacy, the fifth amendment focuses on due process and protections against government overreach, and the sixth amendment focuses on fair trials and legal representation. So again, investigating crimes, charging people with crimes, and then putting people on trial. That is what the fourth, fifth, and sixth amendments speak to. And all of this will be made very clear throughout the episode. So now that we're on the same page with that, let's talk about the fourth amendment. The fourth amendment protects people from unreasonable searches and seizures by the government, and it will tell you exactly what the amendment says, and then we'll paraphrase it.

6:12So the exact text of the amendment says, the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Okay, so now let's paraphrase that. The government generally cannot search you, your house, your belongings, or your property, without a good legal reason. And in most situations, law enforcement has to get a warrant from a judge in order to search you. For the judge to sign off on that warrant, officers have to show what's called probable cause or evidence that suggests that you might have committed a crime. And the warrant has to clearly state exactly what they are allowed to search and what they are

7:13allowed to take. Okay, so that is the fourth amendment paraphrased. Now to understand why this amendment exists, it helps to go back to what our framers experienced under British rule. During that time, officials sometimes used what were called general warrants and rits of assistance, which essentially let them search houses or businesses without naming a specific place or person that they wanted to search. And colonists obviously didn't like the fact that government officials could basically just search whoever they wanted at basically any time without having any sort of strong justification. So when the framers wrote the fourth amendment, they wanted to prevent that kind of power. And their idea was really simple. The government cannot search you or take your property without a legal valid reason. But over time, the Supreme Court has had to interpret what counts as a search, what counts as reasonable when police need a warrant. And this is something

8:14we've we've seen with every amendment, right? The framers wrote out these pretty basic paragraphs in some cases sentences. And then over the last 235 years or so, the Supreme Court has had to step in and interpret what they actually mean in practice. And the fourth amendment is no different. So we'll walk through five or six major fourth amendment cases. And these are cases that if you were to sit down in a law school criminal procedure class, those in law school call it crimpro, you would without a doubt have to learn about these cases. These are some of the biggest fourth amendment cases. So consider this episode, your condensed crimpro class at unbiased university. The first major fourth amendment case was Boyd versus United States in 1886. The Boyd brothers were importers and they had brought glass into the United States. But federal customs officials thought the brothers might have undervalued the glass that they brought in in order to,

9:19you know, avoid paying the duties on the glass that they otherwise would have owed if they had properly valued the glass. So the government filed a forfeiture action and seized the glass. Under federal law at the time courts were allowed to order the defendants to produce their private business invoices. So the government could figure out whether the goods had been undervalued and whether customs laws had been violated. If the defendants refused to produce those invoices, the law allowed the court to treat that refusal as evidence that the government's allegations against the defendants were true. So the Boyd brothers refused to turn over their invoices and they argue in court that forcing them to hand over these private invoices was unconstitutional because it effectively allowed the government to obtain private papers without a proper warrant in violation of the fourth amendment. And because it forced them to provide evidence that could be used to prove their own guilt, they also argued that this violated the Fifth Amendment's protection

10:26against self-incrimination. And the Supreme Court agreed with the brothers on both counts. The court said that compelling a person to produce private papers to be used against them is essentially the same as an unreasonable certain seizure in violation of the fourth amendment and violates the Fifth Amendment protection against self-incrimination. We'll talk about the Fifth Amendment in the next segment of this episode. But Boyd was significant for purposes of the Fourth Amendment because it expanded the concept of a search, right? So from that point forward, forcing someone to hand over private documents was treated the same as the government conducting a physical search and seizure. So the privacy rights guaranteed by the Fourth Amendment now extended beyond just physical spaces. Then we have weeks versus United States in 1914. A man named Freemont Weeks was suspected of using the mail to send illegal lottery tickets across state lines and was arrested while he was at work. But after his arrest, officers that went

11:31to his house without a warrant entered his house and seized various letters and documents that they thought would help them in, you know, proving this man's guilt. Later, federal officials also went to his house and took more documents again without a warrant. The evidence that was taken by police and federal officials was ultimately used against him in court, but weeks argued that that search violated the Fourth Amendment. So the question for the court here was whether evidence obtained by federal officers through a warrantless search of a home could be used in federal criminal prosecutions. And the court said no. The court unanimously held that evidence obtained through an unconstitutional search and seizure by federal officials could not be used in court that using improperly seized evidence would effectively make the Fourth Amendment meaningless. And this is known as the exclusionary rule. Okay, it is a major part of the Fourth Amendment.

12:35The federal exclusionary rule says that illegally obtained evidence cannot be used in federal criminal trials. If any defendant is charged with a crime and any evidence that is used in that defendant's trial was illegally obtained. So maybe it was done, you know, maybe the evidence was found with a warrantless search or whatever it might be anything that's illegal. That evidence cannot be used in court. That is the exclusionary rule. And that takes us to map versus Ohio in 1961. In map, the court held that the exclusionary rule does not just apply to the federal government. It also applies to the states, meaning state and local police also could not use illegally obtained evidence in criminal prosecutions. So boy, recognize the idea that searches applied to personal belongings, not just physical spaces. Weeks told us that evidence obtained through

13:36unconstitutional searches cannot be used in court. And then map told us that that rule also applies to the states, right? That takes us to cats versus United States. This was a 1967 case actually. Remember, learning about this case in law school, like it was yesterday, a man named Charles Katz was suspected of transmitting illegal gambling information over the phone. So FBI agents went ahead and attached a listening device to the outside of a public phone booth that Katz frequently used. And they did this without a warrant. So whenever Katz went into this phone booth, the FBI would record his side of the conversations. And those recordings were ultimately used to convict him. But Katz argued that the FBI's surveillance via this phone booth violated the fourth amendment. So in Katz, the question for the court was whether the fourth amendment requires police to obtain a warrant before conducting electronic surveillance

14:38of a person's phone conversations, even when that surveillance happens in a public phone booth. Okay. And the court said yes, that the government's warrantless recording of Katz's conversations violated the fourth amendment because the Constitution protects people, not places. And that a search occurs wherever the government intrudes on a person's reasonable expectation of privacy. Okay. That phrase is very important, reasonable expectation of privacy. Katz was really one of the most transformative fourth amendment decisions for a couple of reasons. Number one, before Katz, the court focused mostly on whether the government had physically trespassed onto someone's property or physically searched someone's property. Though, boy, you know, kind of hinted at the fact that privacy matters even without a physical search. But after Katz, privacy became the central rule. Property kind of took a backseat and

15:40privacy was really the most important part of the analysis. Number two, Katz created this reasonable expectation of privacy test, which is now a central rule of the fourth amendment. Basically, before the government's actions can even be evaluated as reasonable or unreasonable. Courts first have to decide whether a search happened. And the reasonable expectation of privacy test answers that question. If a person reasonably expects something to remain private and society is prepared to recognize that, you know, expectation as reasonable, then government intrusion into that area is considered a search, meaning the fourth amendment applies, right? So now in almost every fourth amendment case, the court will ask. Number one, did the person have a reasonable expectation of privacy? And if so, did the government obtain a warrant or did some sort of exception apply where a warrant wasn't required? And then also, because the reasonable expectation of privacy

16:46test focuses on privacy rather than physical trespass, Katz really laid the foundation for modern digital privacy laws and surveillance. So through Katz, the fourth amendment started to adapt to these newer technologies like wiretapping, emails, phone calls, cell phone data, etc. Katz was a really big case. Let's take a quick break here. When we come back, we'll talk about a few more fourth amendment cases. And then we'll move on to the fifth amendment. If you have been putting off that dental cleaning, an annual checkup, or any kind of doctor's appointment at all, I do want to reassure you and just let you know you're not alone because I have been putting off my annual skin check. I'm not proud of it. I need to get better. But what I want to say is that I have gotten so much better about booking doctor's appointments. And that is solely because of zock-dock. Okay, so before I would just doom scroll my symptoms, I would self-diagnose myself, I would spiral about

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21:001967. And we have established that searches apply to personal belongings, not just physical spaces. We have we have established that evidence obtained through unconstitutional searches cannot be used in federal or state court. And we have established that fourth amendment protections apply wherever we have a reasonable expectation of privacy. Okay. So in 1968, the court decided a case called Terry versus Ohio. This is another big one. A police officer in Cleveland saw two men pacing back and forth in front of a store and looking inside of that store. The officer thought the men were about to rob the store, so the officer approaches them, the officer asks them questions, and the officer then pats them down. This is otherwise known as a frisk. During that frisk, the officer finds a gun on one of the men, John Terry. Terry gets arrested and he's charged with carrying a concealed weapon. But in court, Terry argues that

22:03this search violated the fourth amendment because the officer didn't have a warrant or probable cause to arrest him. So the question for the court was whether the fourth amendment allows a police officer to stop and briefly frisk a person for weapons without a warrant, without probable cause, and based only on suspicion. And the Supreme Court said yes, the court held that police can conduct a limited stop and frisk when they have reasonable suspicion that criminal activity is occurring and that the person might be armed and dangerous. The court said this kind of limited pat down for weapons is a reasonable search under the fourth amendment because it's designed to protect officer safety and it's less intrusive than a full search. So Terry established what are known as Terry stops, which nowadays are very common.

23:03But Terry was even more important because it created the reasonable suspicion standard. So before Terry, we just had probable cause. After Terry, we now have probable cause and reasonable suspicion. These are two different standards in the law. Probable cause is a higher standard, reasonable suspicion is a lower standard. And here's the easiest way to understand the difference. Probable cause means officers have enough evidence to reasonably believe a crime has been committed. And that's typically what is required to make an arrest or obtain a search warrant, okay? Reasonable suspicion though means officers can point to specific, articulable facts suggesting criminal activity might be happening. And this is reasonable suspicion is not enough for an arrest or a search warrant, okay? Probable cause is needed to make an arrest or obtain a search warrant. So you can think of it this way. Probable cause

24:08because it's a higher standard allows for bigger actions like arrest and warrants. Reasonable suspicion, lower standard allows more limited actions like temporary stops. So again, before Terry most searches require probable cause. After Terry, officers can briefly stop you and conduct a limited pat down with only reasonable suspicion. The next major Fourth Amendment case is Chimble versus California. This is 1969. So the 60s was a big decade for the Fourth Amendment. And in this case, officers went to Ted Chimble's house with an arrest warrant for a burglary that had occurred, but they didn't have a search warrant. They only had an arrest warrant. Despite that, after arresting him inside of the house, officers went ahead and searched the entire house. And they took certain things that they found as evidence to be used to trial. But Chimble argued that that search violated the Fourth Amendment because officers did not have

25:12a proper search warrant. So the question for the court was whether the Fourth Amendment allows police after making a lawful arrest to search the entire home without a search warrant as a search incident to arrest. And the court said, no, the Supreme Court said that a search incident to arrest is limited to the arrestee's person and the area within the arrestee's immediate control. But a broader search of the home requires a separate search warrant. So that was Chimble. Then the last case we'll talk about is Arizona vs. Gantt. This was a more recent 2009 case. A man named Rodney Gantt was arrested for driving with a suspended license. And after police arrested him and handcuffed him and put him in the back of the cop car, they searched his car and found cocaine in a jacket in the back seat. And in court Gantt argued that the warrant list search of his car violated the Fourth Amendment because he was already put in the cop car,

26:14and he couldn't access his car. So the question for the court was whether the Fourth Amendment allows police to conduct a warrant list search of a vehicle incident to arrest, when the arrested person has already been secured and can't access the vehicle. And the court said, no, the court held that police can only search a vehicle incident to arrest when one, the arrestee is within reaching distance of the car at the time of the search. Or two, it is reasonable to believe that the car contains evidence of the offense of arrest. So in Gantt's case, he wasn't within reaching distance of the car. He was, you know, in the back of the cop car. And because he was arrested for driving without a license, there was no reason to believe that officers would find evidence of the crime inside the car. Now, if you're arrested for something like driving under the influence, that's a different story. Officers might reasonably believe that there's evidence related to that offense inside of the car, right? Like maybe an

27:15open bottle of alcohol or maybe drugs or something like that. In that situation, a search of the car incident to arrest might be allowed, even if you're already put in the back of the cop car. So those are seven of the most notable Fourth Amendment cases throughout history. Obviously, there are a ton more cases we could talk about, but we got to move quick here. You know, this is a condensed law school education, not a not a full-on law school education. So those are the seven, I would say, of the most notable cases. Three takeaways regarding the Fourth Amendment, okay? Three things I want you to take away after this discussion. Number one, the Fourth Amendment protects against unreasonable government searches and seizures. The government typically cannot search you, your house, or your belongings without a legally valid reason. Two, the Fourth Amendment is about protecting privacy more than anything else. Wherever you have a reasonable expectation of

28:16privacy, Fourth Amendment protections apply. And three, searches generally require warrants based on probable cause, but there are exceptions. Those exceptions include consensual searches, emergencies, certain car searches, or limited searches like Terry stops. So those are the three takeaways. Obviously, you know, like I said with the case law, we could keep going, but for purposes of this condensed course, those are the three things I want you to take with you. Okay, now let's move on to the Fifth Amendment. The Fifth Amendment applies mostly in criminal proceedings. And like the Fourth Amendment, I'll give you the exact text, and then I will summarize. So the exact text of the Fifth Amendment 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

29:17or naval forces or in the militia, win 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. As you can probably see, there are many components to the Fifth Amendment. Five to be exact. Five components to the Fifth Amendment is a good way to remember it. So number one, the grand jury requirement. Before the federal government can formally charge someone with a serious crime, a grand jury has to first review the evidence and decide whether there's enough evidence to move forward with the charges. Number two, double jeopardy. The government cannot try someone over and over again for the same crime just because it didn't get the outcome

30:19that it wanted. Once a person has been acquitted or convicted, that case is generally over. Number three, the protection against self-incrimination. The government cannot force you to testify or answer questions that would prove your guilt. People have the right to remain silent to avoid incriminating themselves. Number four is due process. The government has to follow certain procedures before taking away someone's life, freedom or property. It cannot punish people arbitrarily. It has to follow established legal rules. And the Fifth component of the Fifth Amendment is the takings clause. If the government takes private property for public use, it has to pay the owner fair compensation. So let's say the state decides to build a new road that's going to run right through your land, right through your property. The government has the authority to take the property because the road serves a public use. But under the Fifth Amendment, it cannot just take your land for free. It has to pay you the fair market value of that property before taking it. So those are

31:26the five components of the Fifth Amendment in short, but now we'll elaborate a bit on each one. We'll start with the first one, the grand jury requirement. A grand jury first and foremost is a group of citizens that decide whether prosecutors have enough evidence to bring formal charges against a defendant. The grand jury does not decide guilt. The grand jury just decides whether there is enough evidence to reasonably reasonably believe that the charge is justified. Now you might have noticed that the actual text of the amendment says that the grand jury clause applies only to capital or otherwise infamous crimes. It says, quote, no person shall be held to answer for a capital or otherwise infamous crime unless on a present of indictment of a grand jury. So the question is, what is considered an infamous crime? Well, like many things, the Supreme Court has given us an answer. In 1885, in a case called X Parté Wilson, the Supreme Court held that any crime punishable by hard

32:32labor in a penitentiary is an infamous crime requiring a grand jury indictment. The court held that it's the punishment, not the crime itself that dictates the necessity of a grand jury. But then in 1937, in a case called Duke versus United States, the Supreme Court held that the grand jury requirement doesn't apply to petty offenses or misdemeanors, specifically if a crime is punishable by a fine of a thousand dollars or less or imprisonment of less than six months, the grand jury requirement does not apply. But here's a main to keep in mind, when courts decide whether a crime is considered infamous for purposes of the grand jury requirement, they don't look at the punishment the person actually receives. They look at the maximum punishment that the law allows for that crime. So even if someone ultimately gets a short sentence or no jail time at all, the crime is still treated as an infamous crime requiring a grand jury indictment, if the law allows the court to impose a more

33:37serious punishment. Okay, so as an example, if let's say a law says that a crime could be punished by up to five years in prison, that crime is treated as serious enough to require a grand jury indictment, even if the judge ultimately only sentences the defendant to, you know, probation or maybe two months in jail. So it depends on what the law says, the crime is punishable by. And then the third important grand jury related case is Hurtado versus California. So this was an early case 1884. The court in Hurtado said that the grand jury clause does not apply to the states and that is still the rule today. So the federal government generally has to use grand jury indictments for serious offenses. And states can choose to use them, but they don't have to. Now many states do use grand jury indictments, but it's not a requirement. So that's, that's just an interesting thing to note. And one last thing I want to say about the grand jury requirement is this. The exclusionary rule that we talked about in our fourth amendment discussion does not apply

34:41to grand jury proceedings. So even if evidence was obtained through an illegal search, prosecutors can still use that information to question witnesses before a grand jury or ask the grand jury to consider evidence derived from that information. Prosecutors just can't use the evidence or information at trial because that would violate the exclusionary rule, but the exclusionary rule does not apply to the grand jury proceedings. The Supreme Court has held that the primary purpose of the exclusionary rule is to deter unlawful police conduct at trial, but applying it during grand jury investigations would interfere with the grand jury's investigative function. So to be clear, illegally obtained evidence generally cannot be used at trial, but it can still sometimes be used during grand jury investigations to ask questions or pursue leads. So that's the grand jury

35:41requirement of the fifth amendment. Now let's go on to double jeopardy, which is the second component of the fifth amendment. Double jeopardy is an important one because without it, prosecutors could just continue trying someone until they finally obtained a conviction, right? But what double jeopardy means is that the government generally cannot prosecute the same person twice for the same offense after a final verdict has been reached. So if someone is tried for robbery and a jury finds them not guilty, the government cannot later retry that same person for the same robbery just because prosecutors found new evidence or they think, you know, they think they can now win the second time round. They can't do that. Similarly, if someone is convicted of burglary and serves their sentence, the government can't later charge them again for the same burglary, okay? But here's where double jeopardy doesn't apply. If someone commits a crime that violates both

36:43state law and federal law, they can be prosecuted by both governments. So someone tried in state court could still face federal charges based on the same criminal activity, right? An example of this would be Luigi Mangioni who shot and killed the CEO of United Health Care. He's facing both state and federal charges and that is allowed. Similarly, if a trial ends in a hung jury, meaning the jury can't reach a verdict, prosecutors can retry the case because there was no final verdict, okay? So we saw that with Karen Reed, if any of you guys were following that trial. It was a hung jury the first time around and prosecutors went ahead and prosecuted her again. So there's no final verdict. Prosecutors can take another stab at it. But if there is a final verdict, whether it's guilty or not guilty, you cannot go back a second time. And then finally, if one incident involves multiple distinct crimes, a person can be charged separately for each offense.

37:44So if someone robs a bank and assaults a bank teller at the same time, the person can face both robbery charges and assault charges separately. They can be tried twice, but on those two different charges because they're legally different offenses. So that's the general gist of double jeopardy. Next, we have the Fifth Amendment's protection against self-incrimination. And this is one of the most famous parts of the Fifth Amendment, right? Because we always hear the phrase, I plead the Fifth or whatever. That's where this comes from. Pleading the Fifth comes from the Fifth Amendment. The government can not force someone to testify in a way that could be used against them, okay? And the most famous case related to the protection against self-incrimination is Miranda versus Arizona, where the Supreme Court said that suspects have the right or suspects have to be informed of their rights before being interrogated, including the right to remain silent and the right to an attorney. And if you didn't know before, perhaps now you know where the name Miranda writes comes

38:49from. In Miranda versus Arizona, it was a man named Ernesto Miranda. He was arrested for kidnapping and rape. And after being taken into custody, officers questioned him for about two hours. He eventually signed a written confession, but police never told him that he had the right to remain silent or the right to an attorney. Despite that, his confession was used against him at trial, who's used to convict him. So he went ahead and challenged the use of that confession. And the question was whether the Fifth Amendment protection against self-incrimination requires police to inform suspects of their constitutional rights before conducting these interrogations. And the Supreme Court said, yes, the court held that statements made during an interrogation are generally inadmissible in court unless police first informed suspects of their rights, including the right to remain silent, that anything that anything they say can be used against them, the right to an attorney, the right to have an attorney appointed if they can't afford one. These are now known as

39:53our Miranda rights. So that's why you almost always hear police read suspects that are Miranda rights when arresting them. Because if they are able to obtain any sort of information or confession after arrest, they are ensuring that it won't later be deemed inadmissible in court, right? Because they made sure to read off the Miranda rights, which means that anything that said after that point, because the suspect has already been warned, you have the right to remain silent. But if they say anything, if they confess to anything, after they have been read their Miranda rights, those things can be used in court. But if they are not read their Miranda rights, those statements, any possible confessions, anything like that is inadmissible in court. Okay, let's take our second and final break here. When we come back, we'll go over the last two components of the Fifth Amendment, and then we will finish this episode talking about the Sixth Amendment. These days, I am all about quality over quantity, especially when it comes to my closet. If it is not well made and versatile, it's just not worth it to me. And that's honestly why I love twins because the fabrics feel really

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45:09requirement of the fifth amendment. We've talked about double jeopardy. We talked about the protection the protection against self-incrimination. Now let's talk about due process. The fifth amendments due process clause says the federal government cannot deprive any person of life liberty or property without due process of law. And in simple terms it means that the government has to follow fair legal procedures before punishing someone before imprisoning someone before taking someone's property. There are really two main types of due process that that courts talk about. There's procedural due process and there's substantive due process procedural due process focuses on how the government acts whereas substantive due process focuses on what the government can do. So procedural due process requires the government to notify you of the charges against you. It requires the government to give you a meaningful opportunity to be heard. It requires that there be some sort of neutral decision maker at trial like a judge or a jury. So with procedural

46:14due process the government you know couldn't imprison someone without giving them a fair a fair chance to challenge their charges. The government can't fire a federal employee that has protected job status without giving them an opportunity to challenge their firing. That is procedural due process. Then there's substantive due process. Substantive due process stands for the idea that some rights are so fundamental that the government cannot infring them without extremely strong justification even if it follows proper legal procedures. Most of the well-known Supreme Court cases involving privacy and personal decision making things like same-sex marriage, abortion, etc. were analyzed under this substantive due process concept but we're actually going to dive really deep into that into due process and substantive due process in a later episode. I think

47:15it's two episodes from now. So for today the key takeaway here is just that due process protects both fair procedures and in some situations fundamental liberties. And then finally the fifth and final component of the Fifth Amendment is the takings clause which requires the government to provide compensation if it takes private property for public use. Like I said earlier if the government needs your private property for a legitimate public project like building a highway or building a school or something like that. The government has the power to take your property but it has to pay you fair market value for it. This authority is often called eminent domain. You might have heard that before. That's basically the government has the authority to take your property. It just has to pay you fair market value. And over time the Supreme Court has also said that a taking doesn't always have to involve physically taking land. In some situations if government regulations

48:17go so far that they effectively deprive an owner of the practical use or value of their property that too can qualify as a taking requiring compensation under the Fifth Amendment. So as an example imagine you own land by the water that you plan to build a house on one day. But the government passes a regulation that says no building of any kind can can be built on that land. Let's say it's for environmental purposes. You technically still own the property. The government didn't take it but because of this new regulation you can't use it and you can't sell it because now it's lost virtually all of its value. In a situation like that a court might find that the regulation went so far that it effectively functions as if the government were taking your property. Even if the government never physically took it and if that happens under the taking clause of the Fifth Amendment the government might have to compensate you accordingly. So that is the taking clause and that is the Fifth Amendment. So as you can see it's all about fair treatment by the government when someone

49:21is accused of a crime or when the government seeks to take property. Now let's finish this episode with the Sixth Amendment. The Sixth Amendment focuses on the rights of people once criminal charges have been filed. So once you've been charged with a crime that is when the Sixth Amendment kicks in. The Sixth Amendment guarantees the right to a speedy and public trial, the right to a trial by an impartial jury, the right to be informed of your charges, the right to confront witnesses, the right to compulsory process to obtain witnesses meaning the right to require witnesses to appear in court to testify on their behalf and the right to assistance of counsel, aka a lawyer. So what's interesting is that the Fifth Amendment had five main components that we went over, right? The Sixth Amendment has six main components and like we did with the Fifth Amendment we will take each of these six components one at a time and elaborate on it, you know, a bit more. So first

50:24the right to a speedy and public trial. The government cannot arrest you and then just like leave you waiting forever for a trial and your criminal trial generally has to be open to the public, including the press, but as we know there are always exceptions. So a trial might not be public if the case involves minors. It might not be public if there's safety concerns for witnesses if the trial involves national security issues or classified information or if the person on trial you know maybe it causes too much publicity and it potentially interferes with the defendants right to a fair trial, maybe in that case it wouldn't be public. But generally speaking a defendant has the right to a speedy and public trial. The biggest case when it comes to the right to a speedy trial is Barker vs. Wingo. A man named Willie Barker was charged with murdering Kentucky and prosecutors wanted to try Barker's alleged accomplice first so they asked the court to delay Barker's trial not once, not twice, not three times, 16 times. Okay. It took more than five years before

51:25he was finally tried and convicted. So what did Barker do? Barker argued that this delay violated his constitutional right to a speedy trial. And the question for the court was how should courts determine whether a criminal dependence sixth amendment right to a speedy trial has been violated. The court said well there's not really a fixed time limit that automatically violates the right because each case is different. So instead courts will have to apply a balancing test that looks at four factors. The length of the delay, the reason for the delay, the defendants assertion of the right so whether the defendant demanded a speedy trial and prejudiced to the defendant whether the delay harmed the defense. This test is now known as the Barker balancing test and it's what courts still use to this day to determine whether a defendant's right to a speedy trial has been violated. Then we have the six amendment right to an impartial jury. This is the second component of the six amendment. This one is pretty self-explanatory. It guarantees that a

52:27criminal defendant is judged by a neutral group of jurors who can fairly evaluate the evidence and apply the law without any bias or preconceived opinions about the case. So an impartial jury means can't have a personal interest in the outcome of the case. They can't already believe the defendant is guilty or innocent before hearing the evidence and they have to be willing to base their decision only on the evidence presented in court and the judges instructions on the law and nothing outside of that. Now obviously it's not always 100% possible to have a totally impartial jury, right? In really high profile cases there's already so much out there about especially in today's day and age with social media and just technology and everything like that. Sometimes there's just so much out there about a crime or a defendant before the case makes it a trial that the jury is bound to go into a trial with with some preconceived notions. But to try to ensure as much impartiality as possible the court will conduct what's called Vaudier before a trial starts and in Vaudier

53:33the attorney is representing both sides and the judge will question potential jurors to identify any potential bias. But the purpose of the right to an impartial jury is just to protect defendants from you know being judged by a group of people that's already against them from the get go. Then there's the right to be informed about the charges against you again another straightforward one. The government has to clearly tell a defendant what crime they're being charged with and what conduct allegedly violated the law and this is so the defendant can properly prepare a defense. Now in practice this means that prosecutors have to file a formal charging document either in indictment or in information that states the specific criminal offense being charged the facts supporting that charge and when and where the alleged crime occurred. So that's the sixth amendment right to be informed of the charges against you and then we'll take the next

54:35two components of the six amendment together the right to confront witnesses and the right to compulsory process to obtain witnesses. These two are all about the witnesses that testify at your trial. So the right to confront witnesses means a criminal defendant has the right to face the witnesses who testify against them in court and challenge that witness testimony through what's called cross examination and then the right to compulsory process to obtain witnesses gives a criminal defendant the power to force witnesses to come to court to testify on their behalf. So these are people testifying in favor of them without the right to obtain witnesses only the prosecution you know easily bring witnesses into court which then obviously wouldn't be fair to the defendant. So these two rights work in tandem with one another and then finally we have the right to assistance of council and not just assistance of council but effective assistance of council and in the in

55:38the amendment it's only written as assistance of council but since then as we'll talk about in a minute it has developed into effective assistance of council. If the government is trying to convict you have a crime. You have the right to legal representation at critical stages of the prosecution, interrogation, pretrial proceedings, plea negotiations, trial and sentencing. Two important cases to talk about here. The first one is Gideon versus Wade Wright. This is a 1963 case. This is a big case. A man named Clarence Gideon was charged in Florida state court with breaking and entering. He couldn't afford a lawyer. He asked a judge to appoint a lawyer for him but the judge refused because Florida law only required appointment of council in capital cases. Gideon ended up representing himself a trial. He got convicted and he was sentenced to prison but from prison he filed a handwritten petition to the Supreme Court of the United States and he argued that his constitutional right to council had been violated. So the question for the court was

56:40whether the constitution requires states to provide an attorney to criminal defendants who cannot afford one in non-capital felony cases and the Supreme Court said yes. The court unanimously held that the six amendment right to council is a fundamental right and through the 14th amendment and this is where it gets a little bit confusing but I promise this will all will connect the dots throughout each of these episodes in this unbiased university series but through the 14th amendment states states as well as the federal government have to provide attorneys to defendants who cannot afford them that are charged with serious crimes and this actually overturned an earlier decision from a case called Betts versus Brady but Gideon established that if you face serious criminal charges and you cannot afford a lawyer the government has to provide one. It doesn't matter if it's state charges or federal charges you are entitled to council. Then the other major case when it comes to our right to council is Strickland versus Washington. This was a 1984 case and this case said

57:46that our right does not just guarantee a lawyer a guarantees an effective lawyer. A man named David Washington went on a pretty violent crime spree and later pleaded guilty to various crimes and when it came time for sentencing his attorney chose to not present certain evidence that would have possibly helped him get a lower sentence this is called mitigating evidence and his attorney instead focused on Washington's acceptance of responsibility. Well Washington ended up getting sentenced to death and he later appealed his sentence arguing that his lawyer's performance was so bad that it violated his six amendment right to assistance of council. So in this case the court had to figure out when a defense attorney's bad representation rises to the level of a constitutional violation and the Supreme Court said that a defendant claiming ineffective assistance of council has to satisfy a two-part test. The first part is deficient performance meaning

58:48the lawyer's performance fell below an objective standard of reasonableness. The second part is prejudice meaning there's a reasonable probability that the result of the case would have been different if the lawyer had performed adequately. So if a criminal defendant can show both deficient performance and prejudice they can properly claim ineffective assistance of council. And those are the main components of the six amendment. So hopefully after discussing everything we've discussed in this episode you can clearly see how the fourth, fifth, and six amendments really really kind of set the rules that the government has to follow when it's investigating crimes, when it's charging people with crimes, and when it's putting people on trial. And while we talked about a lot in this episode and my hope is that you learned a lot, if you take away anything from this episode let it be let it be this. The fourth amendment focuses on searches and privacy, the fifth amendment focuses on due process and protections against government overreach,

59:50and the sixth amendment focuses on fair trials and legal representation. Now as much as I wish I could I guess the warning I just want to give you is that although these episodes are incredibly insightful they do serve as a baseline of the knowledge I could I mean there's a reason law school is what it is right there there's whole I mean you could talk about the sixth amendment for a week in a law school class you could talk about the fourth amendment for two weeks in a law school class there's just so much to talk about but I hope you at least walk away from this episode feeling like you have gained more knowledge than you went into this episode with. So next episode we'll cover amendments seven eight nine and ten to complete the Bill of Rights and then we'll move on to specific principles within the Constitution and the Bill of Rights which we haven't yet touched on in a ton of detail like the separation of church and state due process in much more detail and equal protection. So thank you for attending today's class at

1:00:50unbiased university and I will talk to you next time. It's tax season and at life lock we know you're tired of numbers but here's a big one you need to hear billions that's the amount of money and refunds the IRS has flagged for possible identity fraud. Now here's another big number one hundred million that's how many data points life lock monitors every second if your identity is stolen we'll fix it guaranteed one last big number save up to 40% your first year visit life lock.com slash podcast for the threats you can't control term supply term supply.