The Sixth Amendment

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- [Kim] Hi, this is Kim from Khan Academy.

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Today I'm learning about
the Sixth Amendment

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to the US Constitution.

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One of four amendments
in the Bill of Rights

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that concerns the rights of the accused,

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the Sixth Amendment guarantees defendants

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in criminal cases the right
to a speedy and public trial.

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To learn more about the Sixth Amendment,

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I sought out the help of two experts.

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Stephanos Bibas is a
United States Circuit Judge

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for the US Court of Appeals
for the Third Circuit.

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He's also a leading scholar
of criminal procedure.

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Jeffrey Fisher is Professor of Law

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and Co-Director of the Supreme
Court Litigation Clinic

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at Stanford Law School.

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So Judge Bibas, in the
case of the Bill of Rights,

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the Framers were trying to prevent

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particular abuses of the government,

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so what was the historical background

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that led them to want to protect
these rights in particular?

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- [Stephanos] In England in the late

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17th and early 18th century,

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there was a series of treason trials,

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other political trials,

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and the king had done some things

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that bypassed the usual mode
of trial in criminal cases.

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The Anglo-American system
is known as the Common Law.

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It involves live testimony in open court

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before a jury of your peers,

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and the jury ultimately decides

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did you do it, were you blameworthy,

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do you deserve the punishment?

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The Crown had railroaded some
of its political opponents.

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People like Sir Walter Raleigh,

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people accused in the Popish Plots

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during the strife between
Catholics and Protestants

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and some of these convictions were

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later understood to
have been wrongful ones

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and so the colonists in
England and then in America

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insisted on protecting against various

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ways of diminishing or abridging the trial

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that would be speedy,
that would be public,

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that would be before a
jury, that would have

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an evenly matched prosecution and defense

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and would have an opportunity to

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look the witness in the
eye and confront him

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the way it was always done in England

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as opposed to on continental Europe.

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- [Jeffrey] There's a varied history,

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primarily in England of
certain periods of time

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where people were prosecuted in ways that

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the Founders deemed fundamentally unfair.

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Probably the most notorious
example was the Star Chamber.

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That was a moniker given to a king-run

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tribunal decades before the Founding

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where people were picked up and arrested

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and then sentenced to criminal punishment

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and sometimes to death without ever having

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an opportunity to challenge
the charges against them

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and sometimes not even knowing

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what the charges were against them.

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That kind of a travesty of justice

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and abuse of power was probably

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the foremost thing in the Framers' minds.

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- [Stephanos] This was
partly for the benefit

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of the defendant or the accused.

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It also was very importantly about

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protecting the citizens' right
to control criminal justice.

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That it wasn't the king who would do this,

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and the king couldn't just
let his royal officers off.

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It's very important to look at

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the Declaration of Independence.

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A bunch of the complaints
in the Declaration

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are complaints that the king
is bypassing these usual modes,

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that he's protecting his
soldiers by a mock trial

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from punishment for
murders which they should

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commit on the inhabitants of the States.

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That he's depriving us in many cases

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of the benefits of trial by jury

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and that he has made the judges subject

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to his manipulation and pleasure

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because they don't have stable salaries.

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The colonists were very suspicious

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of the king's manipulation
of criminal justice.

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- [Kim] So how does the Sixth Amendment

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inform how the US legal
system works today?

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- [Jeffrey] The first
important thing to understand

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is that when the Sixth
Amendment was drafted,

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just like all the other
first ten amendments,

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they applied primarily only
to the federal government

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not to state governments,

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but in the sixties and seventies

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the Supreme Court applied all of these

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rights one-by-one to the states.

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Now because the rights apply to both

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the federal government
and to state governments

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the Sixth Amendment
applies every single time

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somebody is charged with a crime.

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That starts with knowing what
you're being charged with,

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whether it's by what's known
as a grand jury indictment

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or some other method of accusing

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somebody of committing a crime,

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and it continues on with the right

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to an attorney to represent the accused

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and goes all the way
through the decision-making

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process with how the jury
decides whether to convict or not

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- [Kim] This is fascinating,

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but there are a couple things that I see

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in the Sixth Amendment that seem like they

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might be a little difficult to define,

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particularly the idea of a speedy trial.

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What actually counts as speedy?

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- [Stephanos] The speedy trial

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component is not well-defined.

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The Supreme Court has ultimately said,

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"Well, we're gonna balance
a bunch of factors.

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How long is the delay?

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What's the reason for the delay?

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Has the defendant shown any
prejudice from the delay?

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How long did it take after the defendant

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requested the speedy trial?"

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Very rarely does the court actually

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throw out a case based on that.

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What happens more often
is that the defendant

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makes a request and then judges really try

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to push the case along to be faster.

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The court has turned it into really

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focusing on the defendant's
interest in something fast,

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and that matters a lot when
a defendant doesn't make bail

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and is being held in jail pending trial.

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Those cases will go to
trial in a matter of months.

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A case where someone is out on bail

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can easily take a year or two

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before it ultimately proceeds to trial.

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- [Jeffrey] What's speedy
or what's reasonable in 1791

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might not be speedy or reasonable in 2017.

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What the courts have said
with respect to speedy is

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there's not a bright line rule, say,

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one year, five years, whatever it might be

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that somebody has to be brought

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to trial after being charged.

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Rather, what the court
does is it considers

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how diligently the prosecution

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has tried to pursue the case
in light of other factors

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such as the complexity of the case,

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whether the defendant
himself wants the case

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to go to trial soon or whether

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the defendant himself has
agreed to certain delays

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or said that he doesn't mind them,

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and whether there's
prejudice that has occurred

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which is a legal way of saying whether

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somebody's been harmed
or injured by the delay.

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Say for example a key witness

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has now died or fled the jurisdiction.

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Flexible words like speedy in essence

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translate some measure of discretion

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and flexibility to the courts.

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- [Kim] Why is our legal process

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so much slower than it
was in the 18th century?

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- [Stephanos] That connects up to

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the second set of rights we've constructed

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around what makes
something a public trial.

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One of the main things
there is the jury right.

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Juries in the 18th century,

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we didn't have a jury selection process.

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The first 12 people who didn't know

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the plaintiff or the
defendant or the victim

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or whoever it was would be empaneled

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and they would serve
all day and they'd hear

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all the cases that came that day.

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You didn't have lawyers
involved in most of these cases.

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Usually it was the victim against

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the defendant himself or herself,

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no lawyer speaking for either
side, that was the norm.

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The defendant had a right to hire a lawyer

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but usually couldn't afford it and didn't.

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There weren't rules of evidence.

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There weren't complicated motions.

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There weren't technical jury instructions.

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The trials themselves took,
as I said an hour, two hours.

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Pre-trial proceedings did not
involve lots of legal motions

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'cause there were no lawyers to run them.

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The judges themselves often
didn't have legal training.

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There were no law schools in America.

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When you have a system like
that, it's not that cumbersome

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there's very little
incentive to bypass it,

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and you don't have professional lawyers

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who are looking to get this case done with

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and get on to the next case
or who have seen enough cases

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that they can bargain back and forth

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and strike a bargain for this case

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that's about where the
previous cases came out.

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You didn't have an incentive
for plea bargaining,

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it wasn't slow enough.

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You didn't have the experts

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who it would take to run plea bargaining

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and you didn't have the lack of investment

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in your own case that
makes plea bargaining

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possible or the technical rules.

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These cases actually all did go to juries

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and the expectation was
they all would go to juries

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and the jury right wasn't
just a right of a defendant,

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this happened in every
case 'cause the public

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had a right to do justice itself

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as well as seeing justice done.

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- [Kim] I have so many
questions about this.

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For one thing, do you
think our current system

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is an improvement on this older system

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of juries and not so much plea bargaining,

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and also why is there so
much plea bargaining today?

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- [Jeffrey] At the time of the Founding,

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there were no deals to be
made short of a full trial.

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That's a huge contrast with today

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where over 90% of criminal cases

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in this country are not resolved by trial

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but rather by what's called a plea bargain

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which is a defendant coming in and saying,

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"Look, I will plead guilty
to a lesser offense,

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or to the same offense you're charging

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but with a guarantee of lesser punishment

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as long as you don't require
me to go through a full trial."

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The idea is, is that because the system

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has grown so large and
there are so many cases,

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that it's a relief to the prosecution

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and the court system not to have

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to have a trial in every case

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and the benefit to the defendant is that

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he gets a slightly better deal

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or is able to plead to a lesser crime.

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- [Stephanos] Over the
course of the 19th century

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prosecutors are really taking
over most of these cases.

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It goes from a few percent
to the lion's share of cases,

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and then defense lawyers get hired

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more and more to counteract that.

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Once you got prosecutors and
defense lawyers on both sides,

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and the Sixth Amendment guarantees you

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the right to hire a defense lawyer,

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that's how it's understood in
the 18th and 19th centuries.

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The prosecutors and defense lawyers

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develop rules of evidence
and they develop procedures

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and jury instructions
and they argue motions.

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They get more active and the judge

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gets more passive or reactive.

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The judge isn't pushing
the case along as much

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and the prosecutor and defense
lawyer are slowing it down.

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That seems like it makes it fairer,

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but once it gets to a
certain point of being slow

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the prosecutors wanna
get rid of the cases,

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they have too many of them.

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The judges, they have a bunch

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of civil cases they need to get rid of

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and so the prosecutors and the judges

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and the defense lawyers all get together

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and find ways to bargain the case away

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rather than spending, now it's
days on each case for trial.

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From their point of view it makes sense.

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They have a faster system
and everyone goes home happy

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and the prosecutor can pursue more cases

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and the defendant gets a lighter deal

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but the prosecution makes sure

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there's some conviction and sentence,

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but from the point of view of the public,

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the public doesn't see justice done

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and the public doesn't
trust these plea bargains.

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At the end of the day, what
the defense lawyer's mostly

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doing is not making sure there's a speedy

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and public trial but bargaining

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95% of cases away before there's a trial.

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- [Kim] What happens if the defendant

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can't afford a legal counsel?

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- [Jeffrey] The history
of the right to counsel

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is actually one of the more interesting

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components of the Sixth Amendment

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because many of the components

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have deep roots in the history of England

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and so were rights that Englishmen

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enjoyed for many, many years before

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they were brought over to the colonies

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and became part of our
Constitution of the United States.

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The right to counsel is a little

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bit different in that respect.

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Criminal defendants in
England and other countries

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around the time of our founding

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often did not have a right
to counsel of any kind

00:12:26.646 --> 00:12:28.804
whether they could pay for it or not.

00:12:28.804 --> 00:12:32.815
This was a bit of an innovation
on the part of the Framers,

00:12:32.815 --> 00:12:35.445
recognizing that all of the other rights

00:12:35.445 --> 00:12:38.751
they were identifying to
defend yourself in court

00:12:38.751 --> 00:12:40.848
might not amount to
much if you didn't have

00:12:40.848 --> 00:12:42.429
expert assistance or at least the right

00:12:42.429 --> 00:12:44.621
to obtain expert assistance.

00:12:44.621 --> 00:12:46.801
- [Kim] You've described a lot of changes

00:12:46.801 --> 00:12:50.432
to how our legal system
works over the years.

00:12:50.432 --> 00:12:52.750
What do you think would
have surprised the Framers

00:12:52.750 --> 00:12:55.876
most about how our legal
system works today?

00:12:55.876 --> 00:12:58.757
- [Stephanos] I think they
would have been shocked

00:12:58.757 --> 00:13:02.403
that a system that was meant to slow down

00:13:02.403 --> 00:13:06.592
and check governmental power
and protect overreaching

00:13:06.592 --> 00:13:09.190
and protect the people's role,

00:13:09.190 --> 00:13:11.870
has been so subverted that the people are

00:13:11.870 --> 00:13:14.787
involved in a few percent of cases.

00:13:15.681 --> 00:13:17.662
They designed a system that's slower

00:13:17.662 --> 00:13:19.900
and less efficient by design than

00:13:19.900 --> 00:13:22.207
the criminal justice system
of continental Europe

00:13:22.207 --> 00:13:25.810
because they were worried
about the king and the Crown

00:13:25.810 --> 00:13:29.276
pushing around citizens
and abusing their power.

00:13:29.276 --> 00:13:32.684
They wanted grand juries to
authorize every criminal charge.

00:13:32.684 --> 00:13:36.125
We've largely gotten
around that in most cases.

00:13:36.125 --> 00:13:38.436
They wanted petty juries to ensure

00:13:38.436 --> 00:13:40.592
that every prosecutor's
charge was justified

00:13:40.592 --> 00:13:42.528
and that the legislature's criminal laws

00:13:42.528 --> 00:13:44.216
weren't being applied too broadly.

00:13:44.216 --> 00:13:47.576
Again, prosecutors now
have so many threats

00:13:47.576 --> 00:13:49.623
and tools and sentences that they can make

00:13:49.623 --> 00:13:53.131
almost everybody give up
their jury trial rights,

00:13:53.131 --> 00:13:55.138
but the Framers also weren't dealing with

00:13:55.138 --> 00:13:57.256
the volume of cases we're talking about,

00:13:57.256 --> 00:14:00.086
and they weren't focused
primarily on the violent crimes.

00:14:00.086 --> 00:14:03.119
The federal crimes they
were dealing with were

00:14:03.119 --> 00:14:06.118
seditious libel,
criticizing the government,

00:14:06.118 --> 00:14:07.712
violations of the revenue laws,

00:14:07.712 --> 00:14:10.113
so it's also fair to point out

00:14:10.113 --> 00:14:12.648
that they did not expect that these rights

00:14:12.648 --> 00:14:15.353
were mainly gonna be
limitations that benefited

00:14:15.353 --> 00:14:18.661
people in rape and murder cases.

00:14:18.661 --> 00:14:20.522
A lot of these protections
are mainly designed

00:14:20.522 --> 00:14:23.252
to make sure that the innocent people get

00:14:23.252 --> 00:14:25.709
vindicated against unjust charges.

00:14:25.709 --> 00:14:27.862
They might be a little bit surprised

00:14:27.862 --> 00:14:29.256
that almost all the litigation

00:14:29.256 --> 00:14:33.194
is by people who may be factually guilty.

00:14:33.194 --> 00:14:34.876
- [Jeffrey] The next thing
that would have surprised

00:14:34.876 --> 00:14:36.884
the Framers a great deal, I think,

00:14:36.884 --> 00:14:39.384
is the role of the jury today.

00:14:40.373 --> 00:14:43.306
The jury trial right mentioned
in the Sixth Amendment

00:14:43.306 --> 00:14:45.990
is actually one of the only things

00:14:45.990 --> 00:14:47.882
mentioned twice in the Constitution.

00:14:47.882 --> 00:14:50.091
The right to a jury trial
is actually mentioned

00:14:50.091 --> 00:14:54.362
in the body of the Constitution
itself in Article Four,

00:14:54.362 --> 00:14:56.158
then it's mentioned again
in the Sixth Amendment.

00:14:56.158 --> 00:14:58.703
The reason why is because
the jury were truly

00:14:58.703 --> 00:15:01.487
the people's check on the court system

00:15:01.487 --> 00:15:05.957
and in particular on
the prosecutorial power.

00:15:05.957 --> 00:15:09.957
Serving on a jury, to the
Framers, was an honor.

00:15:11.411 --> 00:15:16.244
It was an act of deep political
participation and meaning.

00:15:17.714 --> 00:15:19.836
In a way that we joke
about jury service today

00:15:19.836 --> 00:15:21.601
as being something of a nuisance,

00:15:21.601 --> 00:15:23.916
they viewed it as almost as important

00:15:23.916 --> 00:15:26.516
as voting for the
president on Election Day.

00:15:26.516 --> 00:15:28.047
- [Kim] By guaranteeing speedy

00:15:28.047 --> 00:15:31.874
public trials by jury
and due process by law,

00:15:31.874 --> 00:15:34.616
the Sixth Amendment ensures that citizens,

00:15:34.616 --> 00:15:38.239
not the government,
control criminal justice,

00:15:38.239 --> 00:15:41.742
but today as Professor
Fisher and Judge Bibas note,

00:15:41.742 --> 00:15:44.195
the Framers might be
surprised to learn that

00:15:44.195 --> 00:15:46.696
due to the rise of plea bargaining,

00:15:46.696 --> 00:15:51.036
only a small percentage of
cases go to trial by jury,

00:15:51.036 --> 00:15:52.950
circumventing this process.

00:15:52.950 --> 00:15:54.872
To learn more about the Sixth Amendment,

00:15:54.872 --> 00:15:56.899
visit the National Constitution Center's

00:15:56.899 --> 00:15:58.699
interactive Constitution,

00:15:58.699 --> 00:16:02.068
and Khan Academy's resources
on US government and politics.


The Fifth Amendment

WEBVTT
Kind: captions
Language: en

00:00:00.167 --> 00:00:02.080
- [Kim] Hi, this is Kim from Khan Academy

00:00:02.080 --> 00:00:05.040
and today I'm learning more
about the fifth amendment

00:00:05.040 --> 00:00:06.670
to the US Constitution.

00:00:06.670 --> 00:00:08.710
The fifth amendment is
one of the better known

00:00:08.710 --> 00:00:11.230
constitutional amendments
since we frequently

00:00:11.230 --> 00:00:14.350
hear references to
suspects taking the fifth

00:00:14.350 --> 00:00:16.140
in TV shows and movies.

00:00:16.140 --> 00:00:18.720
But what does it actually
mean to take the fifth?

00:00:18.720 --> 00:00:20.880
To learn more, I talk to two experts.

00:00:20.880 --> 00:00:23.870
Donald Dripps is the Warren
Distinguished Professor of Law

00:00:23.870 --> 00:00:26.180
at the University of
San Diego School of Law.

00:00:26.180 --> 00:00:29.590
And Steven Saltzburg is the
Wallace and Beverly Woodbury

00:00:29.590 --> 00:00:33.140
University Professor of Law at
George Washington Law School.

00:00:33.140 --> 00:00:35.860
So, Professor Saltzburg
could you talk a little bit

00:00:35.860 --> 00:00:39.520
about why the framers were
interested in choosing

00:00:39.520 --> 00:00:42.290
to protect these rights in particular?

00:00:42.290 --> 00:00:44.120
- [Saltzburg] The fifth
amendment really addresses

00:00:44.120 --> 00:00:45.870
four different things.

00:00:45.870 --> 00:00:49.153
One, it says that generally
you can't be charged

00:00:49.153 --> 00:00:52.930
with a serious crime unless
you're indicted by a grand jury.

00:00:52.930 --> 00:00:57.370
Two, it says you can't be
subjected to double jeopardy.

00:00:57.370 --> 00:00:59.830
Three, it says you can't be compelled

00:00:59.830 --> 00:01:02.560
to be a witness against yourself.

00:01:02.560 --> 00:01:06.050
And four, there is this due process right,

00:01:06.050 --> 00:01:08.090
not to be deprived of life, liberty,

00:01:08.090 --> 00:01:10.130
or property without due process.

00:01:10.130 --> 00:01:12.950
If you look at it, the three provisions,

00:01:12.950 --> 00:01:15.630
the grand jury provision, double jeopardy,

00:01:15.630 --> 00:01:17.610
and the privilege against
self-incrimination

00:01:17.610 --> 00:01:21.500
all have a common history
and that is that in England

00:01:21.500 --> 00:01:25.390
there was a time in which
the crown, the King,

00:01:25.390 --> 00:01:29.310
basically tried to assert
power to bringing people

00:01:29.310 --> 00:01:33.217
to trial for charges that
the King wanted brought.

00:01:33.217 --> 00:01:37.290
And the grand jury served as a protection

00:01:37.290 --> 00:01:40.350
between the King and ordinary people.

00:01:40.350 --> 00:01:42.220
- [Dripps] Most of the
provisions in the Bill of Rights

00:01:42.220 --> 00:01:45.350
are aimed at preventing the
recurrence of some specific

00:01:45.350 --> 00:01:48.430
abuse that had been
known to English history.

00:01:48.430 --> 00:01:51.290
There are different provisions
in the fifth amendment

00:01:51.290 --> 00:01:53.660
that speak to different abuses.

00:01:53.660 --> 00:01:56.180
The fundamental one and the
one that goes furthest back

00:01:56.180 --> 00:01:58.010
in the legal history, back to Magna Carta

00:01:58.010 --> 00:02:00.440
and so on is the due process clause.

00:02:00.440 --> 00:02:04.630
And that clause means that
no person can be injured

00:02:04.630 --> 00:02:06.960
by the government except
according to the law

00:02:06.960 --> 00:02:09.200
of the land and after a fair trial.

00:02:09.200 --> 00:02:11.960
And that in the very,
very distant past back

00:02:11.960 --> 00:02:15.210
in the 13th century King
John had an infamous practice

00:02:15.210 --> 00:02:18.410
of executing supposed rebellious barons

00:02:18.410 --> 00:02:20.100
and then holding a solemn trial

00:02:20.100 --> 00:02:22.360
after the drawing and quartering.

00:02:22.360 --> 00:02:25.020
And so, that notion of judgment

00:02:25.020 --> 00:02:29.173
before punishment is
really, really fundamental.

00:02:30.770 --> 00:02:33.940
That's what due process is
about at its most basic level.

00:02:33.940 --> 00:02:35.180
- [Kim] Interesting, so can you say more

00:02:35.180 --> 00:02:37.370
about the due process clause here?

00:02:37.370 --> 00:02:39.370
What is due process?

00:02:39.370 --> 00:02:42.130
- [Saltzburg] Due process
is an extraordinarily

00:02:42.130 --> 00:02:43.660
complicated concept.

00:02:43.660 --> 00:02:46.920
It means that there are certain procedural

00:02:46.920 --> 00:02:49.510
and substantive rules that must be honored

00:02:49.510 --> 00:02:53.320
in the way in which governments
approach individuals

00:02:53.320 --> 00:02:57.610
and entities that they
are seeking to regulate.

00:02:57.610 --> 00:03:00.310
It's not a simple bright
line that in order

00:03:00.310 --> 00:03:03.090
to have due process this
is what is required.

00:03:03.090 --> 00:03:05.530
Due process is somewhat flexible.

00:03:05.530 --> 00:03:07.880
It tends to provide more protections

00:03:07.880 --> 00:03:11.350
when individuals are faced
with more serious consequences.

00:03:11.350 --> 00:03:15.020
So, in terms of criminal law
it's generally understood

00:03:15.020 --> 00:03:18.410
that the most severe
penalties that we have

00:03:18.410 --> 00:03:20.410
that can legally be imposed upon people

00:03:20.410 --> 00:03:23.360
are the death penalty, prison, and jail.

00:03:23.360 --> 00:03:26.410
And generally, you can't
impose any of those except

00:03:26.410 --> 00:03:28.070
as punishment for a crime.

00:03:28.070 --> 00:03:32.780
And so, the due process
in the criminal arena

00:03:32.780 --> 00:03:37.000
is largely defined by the Bill of Rights.

00:03:37.000 --> 00:03:40.770
And some common law understandings

00:03:40.770 --> 00:03:42.970
that have been carried forward,

00:03:42.970 --> 00:03:45.030
let me give you a couple of examples.

00:03:45.030 --> 00:03:47.730
There is nothing in the Constitution

00:03:47.730 --> 00:03:50.400
that says the government must prove guilt

00:03:50.400 --> 00:03:53.240
in a criminal case beyond
a reasonable doubt,

00:03:53.240 --> 00:03:55.590
but that is a fundamental
part of American law.

00:03:55.590 --> 00:03:58.460
The Supreme Court has
held that that is a part

00:03:58.460 --> 00:04:03.120
of what due process
requires and that is the law

00:04:03.120 --> 00:04:05.470
throughout the United
States not withstanding

00:04:05.470 --> 00:04:07.670
the fact you don't see
it in the Constitution.

00:04:07.670 --> 00:04:11.760
Similarly, the right to a unanimous jury

00:04:11.760 --> 00:04:14.267
in a criminal case is
also not found anywhere

00:04:14.267 --> 00:04:15.500
in the Constitution.

00:04:15.500 --> 00:04:17.480
- [Kim] You mentioned a grand jury,

00:04:17.480 --> 00:04:20.580
so how is that different
from an ordinary jury?

00:04:20.580 --> 00:04:24.808
- [Dripps] The grand jury
served a very delicate role

00:04:24.808 --> 00:04:28.270
in Founding era times because
many, many prosecutions

00:04:28.270 --> 00:04:29.970
were brought by private persons.

00:04:29.970 --> 00:04:32.920
There were no police forces
of the modern paramilitary

00:04:32.920 --> 00:04:36.930
24/7 type and a lot of
law enforcement was done

00:04:36.930 --> 00:04:41.320
by self help and prosecutions
were privately funded

00:04:41.320 --> 00:04:45.450
and sometimes lay people would
represent themselves pro se

00:04:45.450 --> 00:04:48.161
in pressing a criminal prosection.

00:04:48.161 --> 00:04:50.150
And the grand jury was there to make sure

00:04:50.150 --> 00:04:52.990
that people weren't
subjected to vindictive

00:04:52.990 --> 00:04:56.690
or malicious prosecutions
by ill-spirited neighbors

00:04:56.690 --> 00:04:58.180
and that sort of thing.

00:04:58.180 --> 00:05:00.600
The framers probably had
in mind a famous case

00:05:00.600 --> 00:05:05.140
of the Earl of Shaftesbury
who was suspected of misdeeds

00:05:05.140 --> 00:05:08.650
and a grand jury famously
refused to indict him.

00:05:08.650 --> 00:05:12.350
And so, they sought as
one among many checks

00:05:12.350 --> 00:05:15.190
against the possible abuse of power

00:05:15.190 --> 00:05:16.970
by this new federal government.

00:05:16.970 --> 00:05:19.450
- [Saltzburg] So, a grand jury is a body

00:05:19.450 --> 00:05:22.620
that decides whether or
not to bring a charge

00:05:22.620 --> 00:05:26.090
against an individual or an
entity like a corporation.

00:05:26.090 --> 00:05:30.520
The grand jury in federal
court happens to be 23 people,

00:05:30.520 --> 00:05:32.610
but there isn't anything
in the constitution

00:05:32.610 --> 00:05:34.960
that actually says it
has to be that number.

00:05:34.960 --> 00:05:37.890
Unlike a trial by jury
which we call a petty jury,

00:05:37.890 --> 00:05:40.350
the grand jury does not
have to be unanimous.

00:05:40.350 --> 00:05:44.430
It basically decides to bring
a charge by majority vote

00:05:44.430 --> 00:05:49.140
and the grand jury specifically instructed

00:05:49.140 --> 00:05:53.390
that its job is not to
decide guilt or innocence,

00:05:53.390 --> 00:05:56.630
its job is to decide whether
there is sufficient evidence

00:05:56.630 --> 00:05:57.500
to bring a job.

00:05:57.500 --> 00:06:00.590
Which we usually say means probable cause

00:06:00.590 --> 00:06:02.400
to believe that a crime was committed

00:06:02.400 --> 00:06:06.010
and a particular person
committed that crime.

00:06:06.010 --> 00:06:09.440
So the grand jury's function
is to bring a charge,

00:06:09.440 --> 00:06:11.650
the trial jury's function is to then

00:06:11.650 --> 00:06:14.830
decide guilt or innocence.

00:06:14.830 --> 00:06:17.550
- [Kim] Interesting, so
how about double jeopardy?

00:06:17.550 --> 00:06:19.730
This is something that I think we have

00:06:19.730 --> 00:06:23.410
a maybe rudimentary understanding
of in popular culture.

00:06:23.410 --> 00:06:25.310
What does double jeopardy really mean?

00:06:26.160 --> 00:06:28.280
- [Saltzburg] If we didn't
have a double jeopardy clause

00:06:28.280 --> 00:06:31.220
the executive branch, if it
could persuade grand jury

00:06:31.220 --> 00:06:33.490
to charge somebody with
a crime, could prosecute

00:06:33.490 --> 00:06:35.560
that person and if the
person was acquitted

00:06:35.560 --> 00:06:37.260
then government could do it again.

00:06:37.260 --> 00:06:39.270
Bring the same change and do it again

00:06:39.270 --> 00:06:41.920
until they got a conviction and that meant

00:06:41.920 --> 00:06:44.460
that an individual could be persecuted

00:06:44.460 --> 00:06:47.200
rather than prosecuted
by continuing charges

00:06:47.200 --> 00:06:48.980
for the exact same thing.

00:06:48.980 --> 00:06:52.340
And the basic function of
the double jeopardy clause

00:06:52.340 --> 00:06:56.000
is to basically tell the
government, you get one shot.

00:06:56.000 --> 00:06:57.930
- [Dripps] Trials are very
stressful and very expensive,

00:06:57.930 --> 00:06:59.800
and the government has more resources

00:06:59.800 --> 00:07:01.630
than the typical defendant does

00:07:01.630 --> 00:07:03.660
and so one concern is that you would just

00:07:03.660 --> 00:07:05.660
have the government have
power to bankrupt people

00:07:05.660 --> 00:07:09.660
by retrying the case over and over again.

00:07:09.660 --> 00:07:12.130
It becomes very, very
complicated saying just

00:07:12.130 --> 00:07:13.830
what the same offense is.

00:07:13.830 --> 00:07:18.830
The current doctrine is
that every statutory crime

00:07:19.121 --> 00:07:22.160
that includes different factual elements

00:07:22.160 --> 00:07:24.310
than every other statutory crime arising

00:07:24.310 --> 00:07:27.960
out of the same course of
conduct is a separate crime.

00:07:27.960 --> 00:07:30.560
- [Kim] Are there an
exceptions to double jeopardy,

00:07:30.560 --> 00:07:33.870
or common misconceptions
about how it works?

00:07:33.870 --> 00:07:37.083
- [Saltzburg] Yes, there are
two common misconceptions.

00:07:38.000 --> 00:07:42.570
One of them is that you
can only be tried once

00:07:42.570 --> 00:07:46.460
for the same criminal
activity and the reason

00:07:46.460 --> 00:07:49.730
you can actually be
prosecuted more than once

00:07:49.730 --> 00:07:52.010
is because in our system,
federal government

00:07:52.010 --> 00:07:55.660
in each state is considered
to be a separate sovereign

00:07:55.660 --> 00:07:58.880
which means the federal
government can charge someone

00:07:58.880 --> 00:08:01.400
with a crime, let's say a drug conspiracy.

00:08:01.400 --> 00:08:06.400
The State of Virginia or
California can also prosecute

00:08:06.500 --> 00:08:08.163
for the same criminal conduct.

00:08:09.264 --> 00:08:13.170
The states have their own
criminal law to enforce.

00:08:13.170 --> 00:08:17.440
So technically, someone
could be prosecuted let's say

00:08:17.440 --> 00:08:19.150
by the Commonwealth of Virginia

00:08:19.150 --> 00:08:22.420
for a drug conspiracy and convicted.

00:08:22.420 --> 00:08:25.140
And then could be prosecuted
again by the federal government

00:08:25.140 --> 00:08:28.820
or another state for the
same criminal activity

00:08:28.820 --> 00:08:30.510
and be convicted or acquitted

00:08:31.430 --> 00:08:34.300
and the double jeopardy
clause would not be violated.

00:08:34.300 --> 00:08:38.090
The second thing about double jeopardy is

00:08:38.090 --> 00:08:41.800
that it only protects
you from being prosecuted

00:08:41.800 --> 00:08:46.420
a second time by the same
sovereign for the same crime.

00:08:46.420 --> 00:08:49.340
It doesn't protect you
from being prosecuted

00:08:49.340 --> 00:08:50.560
for a different crime.

00:08:50.560 --> 00:08:55.560
Suppose the State of California
prosecutes a defendant

00:08:55.790 --> 00:08:59.110
for murder and the defendant is acquitted,

00:08:59.110 --> 00:09:00.730
the State of California could then bring

00:09:00.730 --> 00:09:04.760
a second prosecution for a
kidnapping of the same victim

00:09:04.760 --> 00:09:07.250
that actually occurred before the murder.

00:09:07.250 --> 00:09:09.690
And because that's a different crime,

00:09:09.690 --> 00:09:12.393
the double jeopardy clause doesn't bar

00:09:12.393 --> 00:09:14.564
a separate prosecution.

00:09:14.564 --> 00:09:16.420
- [Kim] And so there's also a clause here

00:09:16.420 --> 00:09:20.743
that says an individual
shall not be compelled

00:09:20.743 --> 00:09:25.550
in any criminal case to be
a witness against himself.

00:09:25.550 --> 00:09:28.840
So, this is what we call
taking the fifth, right?

00:09:28.840 --> 00:09:30.370
What does that mean?

00:09:30.370 --> 00:09:33.700
- [Dripps] So, the fifth
amendment privilege is a privilege

00:09:33.700 --> 00:09:37.610
that can be asserted by
anyone who is called to answer

00:09:37.610 --> 00:09:40.978
by agents of the government
and to claim the privilege

00:09:40.978 --> 00:09:44.930
it has to be the case that
the witness is being compelled

00:09:44.930 --> 00:09:47.520
to speak will suffer adverse consequences

00:09:47.520 --> 00:09:50.570
if she doesn't answer the
questions the government officers

00:09:50.570 --> 00:09:51.860
want her to answer.

00:09:51.860 --> 00:09:55.520
Those answers have to tend
to incriminate the witness

00:09:55.520 --> 00:09:58.330
and those answers have to be testimonial,

00:09:58.330 --> 00:09:59.436
that is to say they have to say

00:09:59.436 --> 00:10:01.300
in some way they constitute witnessing.

00:10:01.300 --> 00:10:03.950
- [Saltzburg] Good lawyers,
good lawyers will generally

00:10:03.950 --> 00:10:07.470
advise their clients to take the fifth.

00:10:07.470 --> 00:10:09.930
That is, claim their privilege
against self-incrimination

00:10:09.930 --> 00:10:12.420
almost any time that the government

00:10:12.420 --> 00:10:14.850
is seriously investigating them.

00:10:14.850 --> 00:10:18.840
And the reason is people's
memories are often bad,

00:10:18.840 --> 00:10:21.569
that when people are asked
question they may believe

00:10:21.569 --> 00:10:24.240
that something happened in a certain way

00:10:24.240 --> 00:10:26.130
but they haven't gone back to review it.

00:10:26.130 --> 00:10:30.870
And when people make
mistakes, simple mistakes,

00:10:30.870 --> 00:10:32.700
that are made in response to a question

00:10:32.700 --> 00:10:35.130
may look like people deliberately lied.

00:10:35.130 --> 00:10:38.420
They may make someone look
like they were attempting

00:10:38.420 --> 00:10:39.900
to deceive investigators.

00:10:39.900 --> 00:10:43.030
And therefore, when in doubt,
individuals who are being

00:10:43.030 --> 00:10:45.320
investigated have good reason to invoke

00:10:45.320 --> 00:10:47.830
their privilege against
self-incrimination.

00:10:47.830 --> 00:10:49.920
- [Dripps] Historically,
there were two things

00:10:49.920 --> 00:10:51.190
that the fifth amendment privilege

00:10:51.190 --> 00:10:52.920
was really supposed to prevent.

00:10:52.920 --> 00:10:55.360
One was that while the
English system relied

00:10:55.360 --> 00:11:00.360
on grand juries and petty
juries and cross examination,

00:11:00.390 --> 00:11:04.380
confrontational trials,
the European system

00:11:04.380 --> 00:11:08.190
of the Founding era
even as late as the end

00:11:08.190 --> 00:11:11.350
of the 18th century still
relied on juridical torture.

00:11:11.350 --> 00:11:14.330
So, if there was a lot
of preliminary proof,

00:11:14.330 --> 00:11:16.530
if it's super probable
cause against a suspect

00:11:16.530 --> 00:11:19.730
in say France or Germany,
the judges will authorize

00:11:19.730 --> 00:11:23.010
to torture the target into confessing.

00:11:23.010 --> 00:11:26.430
They didn't want to adopt
this inquisitorial practices

00:11:26.430 --> 00:11:27.930
of continental Europe.

00:11:27.930 --> 00:11:30.180
And the other great abuse
behind the privilege

00:11:30.180 --> 00:11:34.390
was the Court of Star Chamber's
use of the oath ex officio

00:11:34.390 --> 00:11:37.530
which was witnesses were
called before the Star Chamber

00:11:37.530 --> 00:11:40.060
without knowing what the
investigation was about,

00:11:40.060 --> 00:11:41.300
whether they were a target,

00:11:41.300 --> 00:11:43.120
what they were suspected of doing,

00:11:43.120 --> 00:11:44.250
and the first thing that happened

00:11:44.250 --> 00:11:46.310
was they were obliged to swear an oath.

00:11:46.310 --> 00:11:48.330
And there was a famous
case involving a man

00:11:48.330 --> 00:11:51.310
named John Lilburne who
refused to take the oath

00:11:51.310 --> 00:11:53.880
and was torturously punished
by the Court of Star Chamber

00:11:53.880 --> 00:11:56.970
for refusing to take that
oath they pilloried him

00:11:56.970 --> 00:11:59.720
and they flogged him, and
his case was seen as kind of

00:11:59.720 --> 00:12:04.231
an example of the kinds of
abuses that might be done

00:12:04.231 --> 00:12:09.231
by asking questions subject to
oaths where the answer might

00:12:09.780 --> 00:12:12.420
incriminate you or expose your to perjury,

00:12:12.420 --> 00:12:14.950
or expose your soul to
eternal consequences.

00:12:14.950 --> 00:12:16.940
So, those two things were behind

00:12:16.940 --> 00:12:19.568
the privilege against self-incrimination.

00:12:19.568 --> 00:12:20.401
The Founders didn't want either of those

00:12:20.401 --> 00:12:23.690
to come back from the past
to haunt the new continent.

00:12:23.690 --> 00:12:25.160
- [Kim] Say that I have committed a crime,

00:12:25.160 --> 00:12:26.380
what might happen?

00:12:26.380 --> 00:12:29.820
Are police or investigators required

00:12:29.820 --> 00:12:33.547
to tell me about my right
not to self-incriminate?

00:12:33.547 --> 00:12:36.690
- [Saltzburg] Starting 1966, in the case

00:12:36.690 --> 00:12:40.350
that many people have now heard
of Miranda versus Arizona.

00:12:40.350 --> 00:12:42.490
The United States Supreme Court held

00:12:42.490 --> 00:12:45.180
that when a person is in custody,

00:12:45.180 --> 00:12:47.330
that is generally has been arrested

00:12:47.330 --> 00:12:51.000
and the investigators or prosecutors want

00:12:51.000 --> 00:12:54.330
to question the suspect
they have to give a series

00:12:54.330 --> 00:12:57.680
of warnings which are widely
known as the Miranda Warnings.

00:12:57.680 --> 00:13:00.257
In short, they have to say to the suspect,

00:13:00.257 --> 00:13:02.607
"You have the right to remain silent.

00:13:02.607 --> 00:13:05.337
"Anything you say can and will be used

00:13:05.337 --> 00:13:07.157
"against you in a court of law.

00:13:07.157 --> 00:13:09.527
"You have the right to
have a lawyer present

00:13:09.527 --> 00:13:13.217
"during any questioning, and
if you cannot afford a lawyer,

00:13:13.217 --> 00:13:15.680
"one will be appointed for you."

00:13:15.680 --> 00:13:17.720
- [Dripps] When the suspect is in custody,

00:13:17.720 --> 00:13:20.220
they have to give the
famous Miranda Warning

00:13:20.220 --> 00:13:22.250
that everybody knows from
movies and television

00:13:22.250 --> 00:13:24.710
and so forth, and that's the one case

00:13:24.710 --> 00:13:28.200
where the government is
required to be proactive.

00:13:28.200 --> 00:13:29.860
In front of a congressional committee

00:13:29.860 --> 00:13:33.590
or grand jury investigation,
or if you're just a witness

00:13:33.590 --> 00:13:35.380
at a civil trial, and there's a question

00:13:35.380 --> 00:13:37.656
that might expose you
to criminal liability

00:13:37.656 --> 00:13:39.510
you have to claim the privilege.

00:13:39.510 --> 00:13:41.547
You have to say, "I refuse
to answer that question

00:13:41.547 --> 00:13:43.700
"on the grounds that
it may incriminate me."

00:13:43.700 --> 00:13:45.703
When the suspect is under arrest

00:13:45.703 --> 00:13:47.920
and the police wanna question him,

00:13:47.920 --> 00:13:49.970
they have a different duty.

00:13:49.970 --> 00:13:52.620
They have a duty to
proactively give him a warning

00:13:52.620 --> 00:13:55.060
to make sure that he
understands his rights,

00:13:55.060 --> 00:13:57.990
that he doesn't have to
say anything to the police,

00:13:57.990 --> 00:14:01.570
that what he does say could
be admissible against him.

00:14:01.570 --> 00:14:03.210
- [Kim] So, we've learned
that the fifth amendment

00:14:03.210 --> 00:14:06.370
protects citizens from
possible abuses of power

00:14:06.370 --> 00:14:08.470
by the government when an individual

00:14:08.470 --> 00:14:10.040
is charged with a crime.

00:14:10.040 --> 00:14:12.410
It requires a grand jury to determine

00:14:12.410 --> 00:14:14.960
whether an individual should
be indicted for a crime.

00:14:14.960 --> 00:14:17.190
Limits the number of times an individual

00:14:17.190 --> 00:14:19.280
can be tried for the same crime.

00:14:19.280 --> 00:14:22.820
Protects people from
self-incrimination and requires

00:14:22.820 --> 00:14:25.130
that the government follow fair procedures

00:14:25.130 --> 00:14:26.660
in prosecuting the law.

00:14:26.660 --> 00:14:28.460
To learn more about the fifth amendment

00:14:28.460 --> 00:14:30.530
visit the National Constitution Center's

00:14:30.530 --> 00:14:33.690
interactive constitution
and Khan Academy's resources

00:14:33.690 --> 00:14:35.553
on US government and politics.


The Fourth Amendment

WEBVTT
Kind: captions
Language: en

00:00:00.504 --> 00:00:02.220
- [Kim] Hey, this is
Kim from Khan Academy,

00:00:02.220 --> 00:00:05.763
and today I'm talking with some experts

00:00:05.763 --> 00:00:08.013
about The Fourth Amendment.

00:00:09.061 --> 00:00:11.549
This is the Fourth Amendment
of the Bill of Rights,

00:00:11.549 --> 00:00:15.209
and the Fourth Amendment
deals with unreasonable search

00:00:15.209 --> 00:00:16.964
and seizure.

00:00:16.964 --> 00:00:19.440
So here's the official
text of the amendment.

00:00:19.440 --> 00:00:22.100
It says, "This right of
the people to be secure

00:00:22.100 --> 00:00:25.829
"in their persons, houses,
papers, and effects,

00:00:25.829 --> 00:00:28.878
"against unreasonable
searches and seizures,

00:00:28.878 --> 00:00:32.354
"shall not be violated, and
no Warrants shall issue,

00:00:32.354 --> 00:00:36.859
"but upon probable cause,
supported by Oath or affirmation,

00:00:36.859 --> 00:00:39.831
"and particularly describing
the place to be searched,

00:00:39.831 --> 00:00:42.775
"and the persons or things to be seized."

00:00:42.775 --> 00:00:44.530
To learn more about the
the Fourth Amendment,

00:00:44.530 --> 00:00:46.825
I talked to two law professors

00:00:46.825 --> 00:00:50.011
who specialize in criminal law,

00:00:50.011 --> 00:00:53.178
Professor Tracey Meares of Yale University

00:00:53.178 --> 00:00:57.038
and Professor Orin Kerr of
George Washington University,

00:00:57.038 --> 00:00:59.516
and he's a particular
expert in criminal procedure

00:00:59.516 --> 00:01:01.500
and computer crime.

00:01:01.500 --> 00:01:03.548
Professor Kerr, can you
tell us a little bit about

00:01:03.548 --> 00:01:06.297
what the Fourth Amendment
is and why the Framers

00:01:06.297 --> 00:01:10.041
were interested in protecting
these rights in particular?

00:01:10.041 --> 00:01:11.536
- [Orin] The Fourth Amendment is a ban

00:01:11.536 --> 00:01:14.652
on unreasonable searches and
seizures by the government.

00:01:14.652 --> 00:01:17.118
It's something the
Framers were interested in

00:01:17.118 --> 00:01:20.499
because they wanted to limit
the government's power.

00:01:20.499 --> 00:01:21.785
At the time of the framing,

00:01:21.785 --> 00:01:25.440
the English King had engaged
in some pretty bad things

00:01:25.440 --> 00:01:27.237
that the Framers wanted to stop,

00:01:27.237 --> 00:01:29.931
and one of those was
raiding people's homes

00:01:29.931 --> 00:01:31.958
with what was called a general warrant.

00:01:31.958 --> 00:01:33.633
A general warrant was
basically a warrant that said

00:01:33.633 --> 00:01:35.937
the police could go anywhere
and look for anything

00:01:35.937 --> 00:01:37.261
without any limit.

00:01:37.261 --> 00:01:38.752
- [Kim] I asked Professor
Meares to explain

00:01:38.752 --> 00:01:41.105
a little bit more about general warrants.

00:01:41.105 --> 00:01:43.400
She's a professor at Yale Law School

00:01:43.400 --> 00:01:45.611
who specializes in criminal procedure

00:01:45.611 --> 00:01:47.529
and criminal law policy.

00:01:47.529 --> 00:01:49.360
- [Tracey] They were a general warrant

00:01:49.360 --> 00:01:53.527
allowing these officials
to search people's homes,

00:01:55.897 --> 00:01:58.517
places, papers, the kinds of things

00:01:58.517 --> 00:02:02.684
that the Fourth Amendment lists
in ways that people thought

00:02:03.972 --> 00:02:05.055
was not okay.

00:02:06.560 --> 00:02:09.258
The Fourth Amendment
was primarily concerned

00:02:09.258 --> 00:02:11.427
with a couple of things.

00:02:11.427 --> 00:02:15.594
One: a case involving a
seditious libel investigation.

00:02:18.494 --> 00:02:21.073
It's a case called Entick.

00:02:21.073 --> 00:02:25.142
And a warrant was issued
authorizing Entick,

00:02:25.142 --> 00:02:27.380
that's the subject of
the warrant, his arrest,

00:02:27.380 --> 00:02:31.646
and the seizure of all
of his books and papers

00:02:31.646 --> 00:02:35.813
so that he could be prosecuted
for seditious libel.

00:02:37.277 --> 00:02:39.643
That case isn't as well-known
as the second case,

00:02:39.643 --> 00:02:42.552
which is called the
Writs of Assistance case,

00:02:42.552 --> 00:02:46.469
and basically, the Writs
of Assistance involved

00:02:48.169 --> 00:02:52.602
customs inspectors who
were trying to crack down

00:02:52.602 --> 00:02:56.685
on smuggling that was
affecting Boston's economy,

00:02:59.851 --> 00:03:04.018
so to add in that task, inspectors
used writs of assistance

00:03:06.469 --> 00:03:10.175
that were issued by the king
and authorized the inspectors

00:03:10.175 --> 00:03:12.258
both to draft assistance,

00:03:13.927 --> 00:03:15.878
hence the name "writs of assistance,"

00:03:15.878 --> 00:03:19.128
and to search any place
where smuggled goods

00:03:19.128 --> 00:03:21.000
might be concealed.

00:03:21.000 --> 00:03:22.635
- [Orin] The Framers wanted
to put an end to that

00:03:22.635 --> 00:03:24.771
and so they said, "No general
warrants are allowed,"

00:03:24.771 --> 00:03:26.787
and searches and seizures
have to be reasonable.

00:03:26.787 --> 00:03:29.592
That really means is the
government can't just stop anyone,

00:03:29.592 --> 00:03:31.474
arrest anyone, break into someone's house.

00:03:31.474 --> 00:03:34.666
There are limits as to
what the government can do.

00:03:34.666 --> 00:03:36.618
- [Kim] But what are those limits?

00:03:36.618 --> 00:03:39.278
What determines probable
cause for a search

00:03:39.278 --> 00:03:43.229
and what renders a search
and seizure unreasonable?

00:03:43.229 --> 00:03:44.861
- [Orin] Yeah, what counts as unreasonable

00:03:44.861 --> 00:03:46.726
is a really big question.

00:03:46.726 --> 00:03:49.785
There are different answers
different courts have suggested,

00:03:49.785 --> 00:03:53.085
but the basic idea is that
first if the government

00:03:53.085 --> 00:03:56.044
has a valid warrant, a search
or a seizure is reasonable.

00:03:56.044 --> 00:03:58.285
If the warrant, if a judge
has signed off and said,

00:03:58.285 --> 00:04:00.251
"Yeah, the government has probable cause

00:04:00.251 --> 00:04:02.429
"to search this place
for particular evidence,"

00:04:02.429 --> 00:04:04.073
then the government can do that.

00:04:04.073 --> 00:04:05.382
And then the Supreme Court has laid out

00:04:05.382 --> 00:04:07.226
a bunch of what they call exceptions

00:04:07.226 --> 00:04:08.460
to the warrant requirement,

00:04:08.460 --> 00:04:10.088
which are also reasonable searches.

00:04:10.088 --> 00:04:12.924
So for example, if a person
consents to a search,

00:04:12.924 --> 00:04:14.522
that's reasonable.

00:04:14.522 --> 00:04:16.148
Or in the case of a car,

00:04:16.148 --> 00:04:18.019
a car can be searched without a warrant

00:04:18.019 --> 00:04:19.752
based on probable cause.

00:04:19.752 --> 00:04:21.924
That's called the automobile exception.

00:04:21.924 --> 00:04:23.271
There are rules that govern

00:04:23.271 --> 00:04:25.468
when the police can stop
somebody temporarily.

00:04:25.468 --> 00:04:27.414
When the government needs an arrest,

00:04:27.414 --> 00:04:28.733
they need probable cause.

00:04:28.733 --> 00:04:30.474
There are basically all sorts of rules

00:04:30.474 --> 00:04:31.641
that the Supreme Court has laid out

00:04:31.641 --> 00:04:33.335
on a bunch of different cases

00:04:33.335 --> 00:04:36.196
that say what counts as an
unreasonable search or seizure.

00:04:36.196 --> 00:04:37.756
The Supreme Court has
said that probable cause

00:04:37.756 --> 00:04:40.923
means a fair probability
that evidence will be found

00:04:40.923 --> 00:04:43.556
in a particular place or
that a particular person

00:04:43.556 --> 00:04:47.313
committed a crime, and "fair
probability" is the language,

00:04:47.313 --> 00:04:49.464
but that's not something
the Supreme Court has said.

00:04:49.464 --> 00:04:51.062
You know, that's not 50%.

00:04:51.062 --> 00:04:52.775
That doesn't mean it's
more probable than not.

00:04:52.775 --> 00:04:55.718
It just means that there's
pretty good reason to think

00:04:55.718 --> 00:04:57.976
that there's evidence to
be in a particular place

00:04:57.976 --> 00:05:00.154
or that a particular
person committed a crime.

00:05:00.154 --> 00:05:02.570
So it doesn't mean a hunch,
it doesn't mean the officer

00:05:02.570 --> 00:05:05.105
just had the idea pop into his head,

00:05:05.105 --> 00:05:08.123
but it also doesn't mean
that the officer's certain.

00:05:08.123 --> 00:05:10.141
There's just got to be
a pretty good reason,

00:05:10.141 --> 00:05:11.422
but not certainty,

00:05:11.422 --> 00:05:13.033
to think that that
person committed a crime

00:05:13.033 --> 00:05:14.705
or there's evidence there.

00:05:14.705 --> 00:05:16.642
- [Kim] But when I asked Professor
Meares the same question,

00:05:16.642 --> 00:05:19.566
she wasn't convinced
it was so easy to tell

00:05:19.566 --> 00:05:22.168
what counts as probable cause.

00:05:22.168 --> 00:05:25.418
So what counts as a true probable cause

00:05:27.422 --> 00:05:30.035
to issue a warrant upon?

00:05:30.035 --> 00:05:31.450
(Tracey sighs)

00:05:31.450 --> 00:05:32.403
(Kim laughs) Sorry.

00:05:32.403 --> 00:05:34.723
We can just skip this instead.

00:05:34.723 --> 00:05:36.141
- [Tracey] Let's take a second.

00:05:36.141 --> 00:05:37.614
I mean, I taught this today.

00:05:37.614 --> 00:05:39.927
You can't, these aren't questions

00:05:39.927 --> 00:05:41.520
that you can just simply answer.

00:05:41.520 --> 00:05:43.977
No one can actually.

00:05:43.977 --> 00:05:48.109
I mean, there is, I mean
literally, I taught today

00:05:48.109 --> 00:05:50.942
the fact that there is no real law

00:05:52.280 --> 00:05:54.370
on what probable cause is.

00:05:54.370 --> 00:05:57.774
It's inherently a factual determination.

00:05:57.774 --> 00:05:59.627
- [Kim] So how does this work in practice?

00:05:59.627 --> 00:06:01.697
I asked Professor Kerr
if it's the case that

00:06:01.697 --> 00:06:04.195
a police officer has to convince a judge

00:06:04.195 --> 00:06:07.145
that there's probable
cause to issue a warrant.

00:06:07.145 --> 00:06:08.603
- [Orin] Yes, that can
come up in two ways.

00:06:08.603 --> 00:06:10.721
In some cases, the Supreme Court says

00:06:10.721 --> 00:06:14.269
the police have to go to a
judge first and get a warrant

00:06:14.269 --> 00:06:16.357
and then they have to convince the judge

00:06:16.357 --> 00:06:19.642
that what they're about to do
is based on probable cause.

00:06:19.642 --> 00:06:20.859
And other cases come up

00:06:20.859 --> 00:06:23.994
when the government has
searched first or arrested first

00:06:23.994 --> 00:06:26.047
and then they come back with the evidence

00:06:26.047 --> 00:06:27.770
or come back with the
person who was arrested

00:06:27.770 --> 00:06:29.474
and then there's a hearing as to whether

00:06:29.474 --> 00:06:31.151
there was probable cause for the arrest

00:06:31.151 --> 00:06:32.254
that already occurred,

00:06:32.254 --> 00:06:33.719
so either way the standards are the same.

00:06:33.719 --> 00:06:35.326
It's that fair probability idea,

00:06:35.326 --> 00:06:37.982
ultimately up to a judge
whether the police were right

00:06:37.982 --> 00:06:40.025
or wrong in doing what they did.

00:06:40.025 --> 00:06:42.194
- [Kim] Interesting, so
there is a little bit of

00:06:42.194 --> 00:06:46.002
prior legwork involved in some cases.

00:06:46.002 --> 00:06:50.750
What happens in cases when
it might be really important

00:06:50.750 --> 00:06:54.583
to get evidence, say if
there's a bomb threat?

00:06:56.292 --> 00:06:58.939
- [Orin] So there are some
rules that allow searches

00:06:58.939 --> 00:07:00.402
or seizures without a warrant

00:07:00.402 --> 00:07:03.156
under what they call
exigent circumstances.

00:07:03.156 --> 00:07:05.143
That basically means
there is an emergency,

00:07:05.143 --> 00:07:08.334
so the government had to act
without a search warrant.

00:07:08.334 --> 00:07:10.084
And so if there is a ticking time bomb

00:07:10.084 --> 00:07:12.856
that they think is gonna
go off in a package

00:07:12.856 --> 00:07:14.241
and they've got good reason to think

00:07:14.241 --> 00:07:16.154
there is this ticking
time bomb in the package,

00:07:16.154 --> 00:07:18.611
they don't have to say, "Hey,
we're gonna go find a judge,"

00:07:18.611 --> 00:07:20.036
because by the time they do that,

00:07:20.036 --> 00:07:21.374
the bomb might have gone off.

00:07:21.374 --> 00:07:23.056
They can search that package

00:07:23.056 --> 00:07:26.253
under this exigent circumstances idea.

00:07:26.253 --> 00:07:30.047
So that's an exception to the
rules, although beyond that,

00:07:30.047 --> 00:07:32.259
there is no difference
between a serious case

00:07:32.259 --> 00:07:34.681
and a less serious case
under the Fourth Amendment.

00:07:34.681 --> 00:07:36.152
They're kind of all serious cases,

00:07:36.152 --> 00:07:39.220
so the courts have to follow
and the police have to follow

00:07:39.220 --> 00:07:42.451
the same rules in less serious
and more serious cases.

00:07:42.451 --> 00:07:44.065
- [Kim] Professor Meares
gave me an example

00:07:44.065 --> 00:07:46.159
of what seemed like a less serious case,

00:07:46.159 --> 00:07:48.601
but it's still a really
interesting example

00:07:48.601 --> 00:07:52.683
of what counts as an
unreasonable search and seizure.

00:07:52.683 --> 00:07:54.059
- [Tracey] I'll give you one more case

00:07:54.059 --> 00:07:55.898
that I'm sure the high
school students will love,

00:07:55.898 --> 00:07:58.135
and my students love it.

00:07:58.135 --> 00:08:02.302
It's a case where a person
was sitting in a noddle shop

00:08:03.532 --> 00:08:07.986
in front of a window eating
a big bowl of noodles,

00:08:07.986 --> 00:08:12.496
clear soup with noodles, and
a police officer walks by

00:08:12.496 --> 00:08:16.261
the person eating the noddles
and notices something floating

00:08:16.261 --> 00:08:17.789
in the bowl of noodles.

00:08:17.789 --> 00:08:20.445
So he enters into the store

00:08:20.445 --> 00:08:22.243
where the person is eating the noodles

00:08:22.243 --> 00:08:25.624
and the person has left
temporarily the bowl of noodles

00:08:25.624 --> 00:08:28.857
to get a napkin or go to
the bathroom or something.

00:08:28.857 --> 00:08:31.841
And then the police officer
approaches the bowl,

00:08:31.841 --> 00:08:35.635
picks up the person's
spoon and stirs the noodles

00:08:35.635 --> 00:08:37.960
to see if he can find anything

00:08:37.960 --> 00:08:41.330
and some baggies of
crack float to the top.

00:08:41.330 --> 00:08:44.304
Did the person have a reasonable
expectation of privacy

00:08:44.304 --> 00:08:45.156
in their food?

00:08:45.156 --> 00:08:46.642
- [Kim] In their soup?

00:08:46.642 --> 00:08:47.902
- [Tracey] In their soup.

00:08:47.902 --> 00:08:49.661
(Kim laughs)

00:08:49.661 --> 00:08:51.425
- [Kim] How did they rule?

00:08:51.425 --> 00:08:55.520
- [Tracey] They ruled that
the stirring was a search.

00:08:55.520 --> 00:08:58.306
So if it is a search, and i.e.,

00:08:58.306 --> 00:09:01.723
that you have a subjective
interest of privacy

00:09:01.723 --> 00:09:04.702
in your soup that society is prepared to

00:09:04.702 --> 00:09:08.721
recognize as reasonable,
then the police officer would

00:09:08.721 --> 00:09:13.291
have to get a warrant
before stirring the soup.

00:09:13.291 --> 00:09:15.014
- [Kim] This raises the question.

00:09:15.014 --> 00:09:18.362
Where I have Fourth Amendment rights?

00:09:18.362 --> 00:09:21.005
Are some locations
protected and not others?

00:09:21.005 --> 00:09:23.083
- [Orin] The building block
of the Fourth Amendment

00:09:23.083 --> 00:09:24.969
is really that you have
Fourth Amendment rights

00:09:24.969 --> 00:09:29.645
in your home, in your
pockets, in your packages,

00:09:29.645 --> 00:09:32.724
but you don't have Fourth
Amendment rights outside.

00:09:32.724 --> 00:09:33.974
You don't have Fourth Amendment rights

00:09:33.974 --> 00:09:37.081
in what you're doing outside
or if the police want to walk

00:09:37.081 --> 00:09:40.198
on what they call open
fields, public streets,

00:09:40.198 --> 00:09:43.244
that, you don't have Fourth
Amendment rights in that.

00:09:43.244 --> 00:09:45.100
So thinking about how the
Fourth Amendment applies

00:09:45.100 --> 00:09:46.477
just in the physical world,

00:09:46.477 --> 00:09:47.745
if the police want to
break into your home,

00:09:47.745 --> 00:09:49.141
they need a search warrant.

00:09:49.141 --> 00:09:51.684
If the police want to watch
you walk down the street,

00:09:51.684 --> 00:09:53.506
they don't need anything.

00:09:53.506 --> 00:09:55.080
It's not a search or a seizure,

00:09:55.080 --> 00:09:57.988
so they can do anything they
want, just watching you.

00:09:57.988 --> 00:10:01.066
If they want to arrest you,
they need probable cause

00:10:01.066 --> 00:10:03.165
to believe you've committed a crime.

00:10:03.165 --> 00:10:05.101
So those are really the building blocks

00:10:05.101 --> 00:10:06.336
of the Fourth Amendment

00:10:06.336 --> 00:10:08.969
going back to 18th-century technology.

00:10:08.969 --> 00:10:10.215
And then the big question becomes,

00:10:10.215 --> 00:10:13.590
"All right. Well, how do you
update that to a modern world?"

00:10:13.590 --> 00:10:15.995
- [Tracey] It's also the case
that the Fourth Amendment

00:10:15.995 --> 00:10:18.390
applies to seizures,

00:10:18.390 --> 00:10:23.143
so what police have to show
before they arrest a person

00:10:23.143 --> 00:10:27.310
or temporarily stop them,
or briefly pat their body

00:10:30.644 --> 00:10:33.049
on the outside of their body for weapons.

00:10:33.049 --> 00:10:36.398
All of those questions are
Fourth Amendment questions,

00:10:36.398 --> 00:10:40.419
as are questions involving how much force

00:10:40.419 --> 00:10:44.571
police actually use to effect the arrest

00:10:44.571 --> 00:10:48.898
once we've decided that
an arrest is legitimate.

00:10:48.898 --> 00:10:51.106
So we haven't talked about
any of those questions

00:10:51.106 --> 00:10:54.815
but the Fourth Amendment
governs all of that

00:10:54.815 --> 00:10:55.898
and remember,

00:10:57.034 --> 00:10:59.925
the Fourth Amendment
governs all of those topics

00:10:59.925 --> 00:11:04.289
in a context in which
the Framers' motivations

00:11:04.289 --> 00:11:06.321
for enacting the Fourth Amendment

00:11:06.321 --> 00:11:08.091
have absolutely nothing to do

00:11:08.091 --> 00:11:11.093
with most of those
things I just mentioned.

00:11:11.093 --> 00:11:13.045
- [Kim] But the Fourth
Amendment also has implications

00:11:13.045 --> 00:11:15.855
that go beyond warrants and seizures.

00:11:15.855 --> 00:11:17.544
Professor Meares thinks that one of the

00:11:17.544 --> 00:11:21.512
biggest Fourth Amendment
issues today is discretion.

00:11:21.512 --> 00:11:25.282
- [Tracey] Many people have
thought much more about

00:11:25.282 --> 00:11:28.876
how the Fourth Amendment protects privacy

00:11:28.876 --> 00:11:33.275
than how the Fourth Amendment
addresses discretion.

00:11:33.275 --> 00:11:34.956
- [Kim] And by discretion
in this case, you mean

00:11:34.956 --> 00:11:37.816
what they get to decide
to do on their own, right?

00:11:37.816 --> 00:11:39.312
- [Tracey] Exactly so.

00:11:39.312 --> 00:11:42.203
And one way to see the difference
between those two things

00:11:42.203 --> 00:11:46.286
is to think about a metal
detector in an airport.

00:11:48.121 --> 00:11:52.152
So long as everyone is
required to go through

00:11:52.152 --> 00:11:53.992
the metal detector,

00:11:53.992 --> 00:11:57.992
there is no law enforcement
discretion involved.

00:11:58.882 --> 00:12:02.114
- [Kim] So this is kind of
where the public safety aspect

00:12:02.114 --> 00:12:05.281
comes in, that if we're all subject to

00:12:09.057 --> 00:12:12.890
non-invasive procedures
at the whim of police,

00:12:14.393 --> 00:12:16.742
it's a little different
than if individuals

00:12:16.742 --> 00:12:19.863
are kind of plucked for that reason?

00:12:19.863 --> 00:12:21.997
- [Tracey] Right, that
it's just pointing out

00:12:21.997 --> 00:12:22.905
that targeting,

00:12:22.905 --> 00:12:27.697
the targeting of people for
invasions is a different problem

00:12:27.697 --> 00:12:31.030
than the invasion problem itself, right?

00:12:32.394 --> 00:12:36.561
And so if all we ever do is
think about privacy invasion

00:12:38.291 --> 00:12:41.473
without thinking about
the discretion problem,

00:12:41.473 --> 00:12:43.660
then we're missing something important.

00:12:43.660 --> 00:12:45.286
- [Kim] For Professor Kerr however,

00:12:45.286 --> 00:12:48.054
the most important issue at stake today

00:12:48.054 --> 00:12:50.571
regarding the Fourth
Amendment is how it will apply

00:12:50.571 --> 00:12:52.470
to electronic media.

00:12:52.470 --> 00:12:53.688
- [Orin] Well, the big question I think

00:12:53.688 --> 00:12:55.111
is how the Fourth Amendment is gonna apply

00:12:55.111 --> 00:12:58.002
to searches and seizures
of computers, of emails,

00:12:58.002 --> 00:13:02.980
to the internet, new technologies
that we all use every day.

00:13:02.980 --> 00:13:04.833
We wake up in the morning and hop online

00:13:04.833 --> 00:13:09.208
or go on Twitter or
whatever you use online,

00:13:09.208 --> 00:13:12.666
lots and lots of communications
online all around the world,

00:13:12.666 --> 00:13:14.990
and how does the Fourth
Amendment apply to that

00:13:14.990 --> 00:13:17.771
is something that the courts
are beginning to answer

00:13:17.771 --> 00:13:19.610
but they've only started to answer.

00:13:19.610 --> 00:13:21.788
Some really, really hard
questions of kind of translating

00:13:21.788 --> 00:13:25.062
that physical world concept
of the Fourth Amendment

00:13:25.062 --> 00:13:27.997
to the world of computers
that we live today.

00:13:27.997 --> 00:13:30.645
- [Kim] So, as we've learned,
the Fourth Amendment ensures

00:13:30.645 --> 00:13:33.478
that government authorities
can't raid homes, pockets,

00:13:33.478 --> 00:13:36.426
or papers without a
warrant issued by a judge,

00:13:36.426 --> 00:13:38.725
and then only if there is a probable cause

00:13:38.725 --> 00:13:41.163
to believe there is a reason for a search.

00:13:41.163 --> 00:13:44.735
What's tricky is deciding
what counts as probable cause

00:13:44.735 --> 00:13:47.345
and whether it's discriminatory to select

00:13:47.345 --> 00:13:50.155
some people to search, but not others.

00:13:50.155 --> 00:13:52.186
And how do we translate
the Fourth Amendment

00:13:52.186 --> 00:13:54.920
to a world where our
papers are all digital?

00:13:54.920 --> 00:13:57.433
Should the police be permitted
to search our cell phones,

00:13:57.433 --> 00:14:01.760
our browsing histories, our
private social media profiles?

00:14:01.760 --> 00:14:03.776
You can learn more about
the Fourth Amendment

00:14:03.776 --> 00:14:06.441
by checking out the National
Constitution Center's

00:14:06.441 --> 00:14:09.903
interactive Constitution,
and Khan Academy's resources

00:14:09.903 --> 00:14:12.403
on US government and politics.