Hello and welcome to the Civic Flame, a podcast where we take a deep dive into the US Constitution and discuss how it is, and is not, being followed by the US government today. As always, IÕm your host, Amber a professor of law and policy at Worcester State University. 00:00:30 The Bill of Rights and Lawyers: Amendment 6 and 7 This week, we are continuing our journey through the Bill of RightsÑthat is the first ten amendments to the US Constitution. If youÕve ever wondered about where lawyers get their power or want to know why you only get a public defender in some cases, then this one is for you because today, weÕre going through the Sixth and Seventh Amendments. Grab your thinking caps, and letÕs go! (transition music) 00:01:05 I try not to make lawyer jokes As we talked about last week, the Fifth and Eighth Amendments because, why not go out of order? There a hallway in the building where I teach where the rooms are actually numbered out of order, so thereÕs precedent where I come from anyway. But really, as some of you might remember from last week, we chose to do it this way so that we could put the two lawyer sections together. Speaking of lawyers, hit me up with your favorite lawyer joke. Mine? WhatÕs black and brown and looks good on a lawyer? A Doberman. 00:01: 39 Lawyers were Òambulance chasersÓ because they protected you from insurance companies Lawyers get a lot of flack in US culture, but did you know that the Òambulance chaserÓ name was actually a positive thing? During the early days of cars and the crazy days of limited workplace accident protections, what would happen was that if someone got injured an insurance agent would try to get to the hospital with them in order to make them sign away their right to sue or give them money and call the issue solved. Lawyers would chase the ambulances to protect people from the insurance companies. And if youÕve ever seen a law drama, you know that good lawyers can make the difference between justice and not for a lot of folks. But a lawyer with an axe to grind or a young prosecutor out to make a name for themselves can abuse that power. This is why people have suck polarized emotions about lawyers. 00:02:26 Clarence Darrow and the Cook County Jail Speech Clarence Darrow, one of the most famous lawyers in the country during his day, gave an address to the prisoners of the Cook County jail in 1901 or so. In it, he basically said to these guys, ÒyouÕre here because youÕre poor. Because you canÕt afford a lawyer,Ó and that kicks off over a century of questions about poverty in the US criminal justice system. It is that line of thinking that leads to one of the most fundamental cases dealing with the Sixth Amendment: Gideon v Wainwright. 00:03:00 What does the Sixth Amendment Say So, the Sixth Amendment says: ÒIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.Ó 00:03:30 How are criminal and civil law different? As usual, this Amendment is doing a lot of work. The first part is that it says criminal prosecution. So, in the US we have two different streams of law: criminal and civil. Criminal youÕll recognize from most TV shows: someone murders someone else, someone steals something, etc. Criminal law basically means that you have a trial with people called defendants and prosecution, youÕre found guilty/not guilty, and the punishment has to do with the criminal justice system (jail, probation, etc). On the civil side you have a plaintiff rather than a defendant, and your punishment is usually administrative (like fines or contract issues or a mandate to do something). So if you as a person poison a townÕs water supply, youÕre going to the criminal stream and prison. But if you as a company poison a townÕs water supply, youÕre maybe going to get a fine, but likely will run out to fight with a dozen highly paid lawyers, and be forced to issue and apology and stop using that particular poison in that particular place. ItÕs not an ideal system. 00:04:30 The burden of proof is different, and that matters One of the biggest differences here is the burden of proof. In a criminal trial you have to be proven guilty, Òbeyond a reasonable doubt.Ó So, it has to look thereÕs no way you didnÕt do it. In a civil trial, it is just a preponderance of evidence, meaning you have to look more like you did than did not. But because criminal cases can land you in jail and evenÑin capital punishment statesÑget you killed, the idea is that you have a lawyer. 00:05:01 The government canÕt keep secrets from you about the allegations against you To fight out the case, Òthe accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.Ó 00:05:42 Changes of venue tick people off see Enron and Rodney King Jury trials are a part of social justice through the criminal justice system. Messing with them undermines the system. This gets hinky when peole do venue changes to find a more sympathetic jury. Think the Rodney King beating in LA when the police got the trial moved to Ventura County because it was more white and more conservative, and they let the police officer go. This resulted of course in days of mass rebellion and riots in LA. But also think about things like the ENRON issues in Houston where they knew everyone in Houston hated them for basically collapsing energy and economics in a few spots around the country. They also moved their case. The idea is that your trials occurs in the community you have harmed. That is the point of the public trial: you face justice where you have caused harm and we use the trial to achieve reconciliation or punishment. ThatÕs not always how it works, but thatÕs how itÕs supposed to work. 00:06:18 Most cases never go to trial The other thing here has to do with the trial themselves. Over 90% of both criminal and civil cases never actually go to trial. They are settled outside of the trial. But still, our court system is wildly overburdened, which means that the speedy part of the trial is not always so speedy (which is part of what causes some people to settle out of court: whether they are guilty or not they just want to put the issue behind them). Next, you have the right Òto be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor.Ó This is all of that procedural stuff. There should be no secrets from you in your trial. You get to hear what youÕre accused of, you get to confront who made the accusation, you get to ask them what theyÕre talking about, and you get to bring in your own witnesses. All of this has more of less function as criminal procedure without incident. 00:07:42 Public Defenders and Gideon v Wainwright ItÕs the last part that go really contentious in the 1960s you have the right Òto have the Assistance of Counsel for his defence.Ó In 1963 the Supreme Court ruled 9-0 in a case called Gideon v Wainwright. The question here was whether states were required to provide attorneys to all criminal defendants who could not afford them. Before these public defenders who worked for indigent clients, were only required in death penalty cases. Gideon argued that the Sixth Amendment said all cases. The Supreme Court said, ÒNot only these precedents, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.Ó 00:09:25 Gideon says lawyers are not a luxury, they are mandatory Basically, they say lawyers are essential in trials and you canÕt have a fair trial without them, therefore, states have to provide them. As you can imagine, this did not go down well with some states. Partly because this required revision of some cases that were already settled, party because of the amount of money this was going to require, partly because states didnÕt want the federal government telling them what to do, and partly because American culture has a bad habit of seeing anyone Accused as guilty and anyone guilty as criminal and anyone criminal as undeserving of public money. The political, economic, and moral dimensions of this case were pretty intense. But again, because this was the Sixth Amendment, this only applied to criminal cases. 00:10:27 What does the Seventh Amendment say? The Seventh Amendment deals with those civil trial. It says, ÒIn Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.Ó This has not been as well fleshed out legally or protected as the Sixth Amendment and criminal trial. Which, I think is a shame because while these donÕt deal with Òlife, liberty, and propertyÓ in the same way as criminal cases, they do deal with some pretty serious issues like child custody, immigration, eviction, medical malpractice, wrongful termination, etc. 00:11:40 What is Civil Gideon? There are some states that require public defenders for certain cases like housing or family court (this is called civil Gideon). So, as usual, they system is complicated and varies a lot. Maybe weÕll do a campfire on alternative dispute resolution and the role of arbitration, but in the meantime, I think IÕve dropped enough right in your lap. (transition) 00:12:04 Next week the 9th and 10th Amendments! Now that all the legal system stuff is out of the way, next week, weÕll be moving towards the 9th and 10th Amendment where my Constitutional radicalism really shows up. After that, well pick apart the 14th Amendment before taking our season break! Until next time, like follow, and share at Dr Fun Sponge on Instagram, Bluesky, and YouTube (which I forgot about). And keep the civil flame burning bright. (outro) 00:12:30 Thank you! The Civic Flame is a Dr Fun Sponge Media Project in collaboration with writer Amber Vayo and Sound Producer Matt Munyon. Thanks for listening.