Due Process of Law: Crash Course Government and Politics #28

Hi I’m Craig and this is Crash Course Government
and Politics, and today we’re going to try to define one of the trickiest terms in government
and in the Constitution, and that is certiorari. No, we’ve already defined that. Due process
of law. On the most basic level, due process is what it means to have a fair trial, but, as we’ll see,
it’s a lot more than what goes on in the courtroom. Due process can refer to any type of legal
action, but we’re mostly concerned with criminal procedure here, mainly because it’s
always the government that brings criminal charges. Last time, we looked at search warrants
and probable cause, and it’s fair to say that this is the beginning of due process,
but search and seizure is the Fourth Amendment; in this episode we’re more concerned with amendments
Five and Six. And, most important, we’ll be explaining some of the aspects of the legal system that you’ve
probably heard if you’ve ever watched a cop show. [Theme Music] Before we move forward, let’s look at the
Fourteenth Amendment. You’ll remember from episode 23 that the civil liberties enshrined
in the Bill of Rights initially applied only to the federal government; state governments
could violate them until the cows came home, which in 1789 was how they measured time.
This changed with the Fourteenth Amendment, which allowed the Court to incorporate the
rights against the states over time. This is especially important with criminal procedural
rights and liberties because most of the time criminal cases are brought by state governments. So the part of the Fourteenth Amendment that
applies here is “No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” You can see that it refers directly to states
and that it says they can’t deprive person of life — kill them – liberty – lock
them up – or property – fine them and take away their stuff, without due process
of law. But what does it mean? Serious fans of jurisprudence – and you
know who you are – know that there are two concepts of due process floating around out
there. The first is substantive due process, which is a blanket prohibition on government
infringing on fundamental liberties. If you think that this is kind of vague, you’re not alone;
the courts generally don’t like to uphold claims based on substantive due process because
then they’d have to define what it actually means. Procedural due process, on the other hand,
is a different story. Under this doctrine, the court looks at whether the government
acted properly in applying its power. Court decisions established procedural limitations
on law enforcement and adjudication. If the government followed these procedural rules,
then in general the courts will say that they didn’t violate your due process rights. But what procedures
do they have to follow, and where do they come from? When it comes to Due Process, the Fifth Amendment
to the Constitution does most of the heavy lifting.
Here’s what it says: “No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases
arising in the land or naval forces, or in the militia, when in 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.” Notice that the second to last clause mentions
due process of law in language similar to what you would find in the 14th amendment
– imagine that – and the rest of the Amendment basically explains a lot of what due process
is. Let’s go to the Thought Bubble. The first clause basically says that if you
are charged with a crime, you are entitled to a grand jury that must look at the evidence
and decide that there is enough to bring you to trial. If the grand jury decides that there
is enough evidence, they issue an indictment, and this means that, unless you make a plea
deal, you will have a trial – which almost never happens because people usually make
plea deals. We don’t have to talk much about cases in
the land or naval forces; this just means that soldiers and sailors who commit crimes
get tried in military courts, which becomes quite important when you are talking about
potential terrorists, but that’s for another day. The second protection this Amendment gives
us is against double jeopardy – not the good Alex Trebek kind — the bad kind where
the state tries you for a crime, loses its case and then decides to try you again for
the exact same crime. What is “Unfair”? Legal types like to say that the government only
gets one bite at the apple, because legal types love fruit. In case you are wondering,
the double jeopardy clause only applies to convictions; if there is a mistrial in your
case and as a result you are neither convicted nor acquitted, the state can bring you to
trial again. The next clause, saying that you can’t be
compelled to be a witness against yourself, is the most important one, at least in the
way we think about due process. This is the protection against self-incrimination, and it’s what we
mean when we say that someone “pleads the Fifth.” The idea that you can’t be compelled to confess your own guilt is the basis of the famous first sentence in every arrest you ever see on TV: “You have the right to remain silent, anything you
say may be used against you in a court of law.” You’ll remember, that this warning comes
from the 1966 case Miranda v. Arizona. The last clause in the 5th Amendment, is the
“just compensation” clause and it only means that if the state takes away your property,
say to build a freeway through your front yard, they can do it but they have to pay
you for it. This is the basis of what’s called eminent domain, which is fascinating
but I don’t have time to go into it here. I’m a busy man. Thanks, Thought Bubble. So you can see that the 5th amendment goes a
long way toward protecting us from the state using its power to put us in jail arbitrarily. Just think for a minute
about what the state could do to force confessions or to keep bringing you to trial until they get a conviction,
and you can see how important these rights are. The fear that the state would use its legal
muscle to take away our liberties was so great, that the writers of the Bill of Rights needed
two amendments to cover it all – three if you count the 7th amendment which guarantees
the right to a jury trial. If the Fifth Amendment provides some general procedural protections, then the
Sixth Amendment is more specific. Here’s what it says: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense.” So this explains what a fair trial looks like. It must be speedy, which most states define in their
constitutions but usually means that you can be held for 45 days before you have to have a trial, unless you
waive this right in order to prepare a stronger defense. The trial should be public – no royal courts
or star chambers – because transparency is supposed to make them work better. You
have the right to a jury of your peers – not a jury of policemen or government officials
or people who are basically likely to convict you – although again you can waive your
right to a jury. And the trial is supposed to be where you committed the crime, although
this doesn’t always apply exactly. You have the right to know what you are charged
with – which makes total sense because if you didn’t it would be pretty hard to put
up a good defense, and you must be able to cross examine the witnesses brought against
you. Probably most important, you have the right
to an attorney, although according to the case Gideon v. Wainwright, this only applies
in felony cases, which I suppose makes sense because these are the ones that are likely,
if you lose, to result in loss of liberty or even life. Because the legal process, as
I hope you’re beginning to see, is kind of complicated, you really, really need a lawyer if you’re
ever gonna get arrested and charged with a crime. That phrase, the right to an attorney, is
also part of the Miranda warning, so this seems like a good place to try to explain
the Miranda case. I’ll try to be brief. Stan made that pun. Terrible. Miranda was arrested on suspicion of kidnapping
and rape after being identified in a police line up. The police questioned him for two hours at
the end of which he confessed to the crime. He was never told about his due process
rights, specifically the protection against self-incrimination, which is what
he did in his confession. The confession was the main evidence used to convict him, and
Miranda was sentenced to 20-30 years in prison. He appealed – well, his lawyers did – claiming
that his 5th amendment rights were violated. The court agreed and they went a bit further,
ruling that you don’t really have due process protections unless you know about them. This
is why the police, when they arrest you, have to tell you about your right to remain silent
– so you don’t incriminate yourself – and your right to an attorney, provided by the
state if you can’t afford one, again because if you have been arrested you’re gonna need
one. If you are going to take away one thing from
this case, don’t make it my wallet cause that will get you arrested. It should be this:
If the police take you into custody or even want to ask you a few questions, you should
ask them if you are under arrest. If they say no, then you can walk away from them.
If they say yes, the very next thing you should say is, I’d like to speak with a lawyer,
and don’t say anything else to them until you have a lawyer there. Well, you might be
able to ask for coffee. The good cop might get it for you. The bad cop might throw it
in your face. So maybe don’t ask for coffee. This may seem silly, especially if you haven’t
done anything wrong but it’s important to keep the police acting the way they are supposed
to act. Court cases like Miranda and Gideon help to
define how agents of the state, in this case law enforcement and judicial officers must
act so that they don’t unjustly infringe on our liberties. In the case of trials, our
fundamental liberty – not being in jail – and maybe even our lives are at stake. Yes it’s true that sometimes guilty people
go free because the police or courts don’t follow the rules scrupulously, and that can
be a bummer. But when you consider the alternative, a government with the power to lock you up
whenever they feel like it, juries that are biased in favor of conviction, and a system
where the state can bring you to trial again and again until they get a conviction, I think
you’ll probably agree that it’s better to have these procedural protections than
not to have them. Thanks for watching. See you next time.
Crash Course Government and Politics is produced in association with PBS Digital Studios. Support
for Crash Course US Government comes from Voqal. Voqal supports non-profits that use
technology and media to advance social equity. Learn more about their mission and initiatives
at voqal.org. Crash Course was made with the help of these procedural protectors. Thanks
for watching.

100 thoughts on “Due Process of Law: Crash Course Government and Politics #28

  • please crash course, please correct your statement of "am I under arrest" and if they say no, you can leave. that is wrong. please explain the difference between detained and arrested.

  • I like the advice at the end, but i'v seen more then a handful of videos of people not being detained, and not under arrest try, and leave and end up getting beat up, shot or arrested. Considering the police state we live in if you hold your life dear just do what they say, and don't argue. The worst crime you can commit is questioning a cop.

  • I have a question. Let's say that "X" committed a crime, has been arrested, and is on trial. Now, for some reason X falls and hits his head and is in a coma. Can the government continue with the trial when X is in a coma? i.e. can the state try me when I am in an unconscious state or in a state when I am not aware of the trial. However X did commit the crime and is on trial. Thanks.

  • Many states have found and allowed a loophole in the fourteenth and fifth amendments, particularly the "shall not seize property without due process of the law," in the form of Civil Forfeiture.

    Civil Forfeiture is when the police don't try and accuse you of a crime, they try your property and accuse IT of a crime. All the police need to prove is that the property could of been used, or might in the FUTURE be used in a crime. So, the police find you driving around with a large amount of cash in your trunk (which they found after a drug sniffing dog got false positive on your car for drugs), the police can take your money and then use it to boost their department budgets. It is then up to the person who's property was taken by the police to prove their own property is innocent.

    While I doubt the constitutionality of the practice, since it is taking your property without due process of law and using your property for public service without just compensation, no one has yer brought an appeal against Civil Forfeiture to the Supreme Court.

  • I think the double jeopardy thing should be changed to account for new technologies. Here in Germany we recently had a case where a girl was raped and murdered in the 1980's but the alleged rapist/murderer was not convicted due to a lack of hard evidence and set free. 20 years later DNA testing proved beyond doubt that he in fact was the killer but then he couldn't be prosecuted again. Now the father of the girl has been suing and fighting for almost a decade to get some justice and closure but so far to no avail. I know there are many cases like this and I don't think it's right. In professional sports your blood and urine samples are frozen and tested again after years if new doping detection tests are available and if they find any illegal substances you can still be stripped of your titles or suspended or fined after years, basically until you retire and even then your reputation and legacy are ruined. I think if this goes for PEDs in sports, it should definitely go for murderers and rapists. It sickens me to know that there are rapists and killers walking free and everybody knows what they did because by now it has been scientifically proven but nobody can do anything about it and they know it, too.

  • THERE ARE 3 TIERS OF POLICE ENCOUNTERS:  consensual – no evidence or suspicion needed; detention – officer needs only reasonable suspicion; arrest or detention — officer needs probable cause.  I really wish someone at Crash Course would do their research.

  • Dear Crash Course, Thank you for the amazing work you do. I have learned a tremendous amount about the world we live in through your videos. You a awesome group of people, I just wish there were organisations like yourself doing similar work for the UK. I know that most of the topics you cover are not specific to the US e.g. the sciences but it would be great to learn about government and politics of here. Thanks and keep doing what your do

  • You thought you could slip in that SNL Celebrity Jeopardy! with Will Ferrel reference without me noticing. You were wrong.

  • One thing to consider about maranda rights is that if the police have no interest in questioning you then they do not have to tell you your rights when arresting you. So you may not be told your rights until you get to the station or perhaps even later.

  • You can be detained without arrest. When this happens it is often for the purpose of investigation and you can not leave. For instance, if you match the description of a suspect who just committed a robbery only a block away, you can be detained until they can determine if you are the person they are looking for. You are not under arrest, but at no time during this process can you walk away.

  • I would have brought up about being detained. you can't just get up and walk away from the police when they tell you to "come talk to me"

  • Um… do you have any actual lawyers reviewing this?
    a) You do not have to get Mirandized unless in custody (not only "arrested") and they intend to interrogate you. If they're just arresting you but aren't about to interrogate you, no Miranda warning necessary.
    b) You do not always get to walk away if you're not under arrest — you might be being detained. Still not free to go.

  • A common misconception from TV and movies is that the police need to "read you your rights" as soon as you are arrested. Now this may be true in the UK, but in the USA this would only be the case if the police are conducting a custodial interrogation and intend to use any statements made by the defendant against them in court. Most criminal proceedings for petite crimes or crimes in progress don't require a defendant to be "Mirandized" because the people do not intend to bring forth any statement made by the defendant against him. The more you know, da da da daaaa.

  • can you do an episode of the indefinite detention clause without trial, of the 2012 national defense authorization act?thanks!

  • Eventually, one of the CC science series will get around to telling us about Dew Process and the circle will be complete.

  • Dear CrashCourse and/or ThoughtBubble (ThoughtCafe),

    Thank you for the Potent Potables reference to Psych, who referenced it from SNL. It made my evening.


  • I really love your videos. I'm sure I would have dropped out of school much sooner had I seen your videos earlier. however there bees some misinformation in this episode.

    The video says right to counsel applies only to felonies. correct test = any jail time as punishment.

    Also the video implies the 14th amendment applies the grand jury requirement to States when it dont.

  • What happened in the case of Kalief Browder? The poor kid was arrest and spent three years in prison, two of which was in solitary, without a trial.

  • Ok, so how does the appeal process (which could be exercised by either side of a case) interact with the double jeopardy idea? Isn't an appeal in fact a second attempt?

  • you stated that police must tell you that you have the, "right to remain silent."
    The only time miranda is required is when there is custody and interrogation……. If I arrest a person an dont question them regarding their crime, I dont have to read miranda…….

  • When my husband filed for a divorce I thought that it would be easier to hire an attorney than to study the law. I was wrong. Attorneys don't have to represent the party's interests and use the entire body of the law to wave the rights of an entitled party. I was successful in firing two attorneys. The first, Bonnie Shields, asked to appoint a guardian ad litem to me – but didn't understand the scheme. She used old and outdated methods. I filed a request to accept her resignation before she filed her motion suggesting that I'm a paranoid schizophrenic and that she is very concerned. Magistrate Moss had Shields dismissed right away. The second attorney asked to move my case to Judge Angela Arkin – who refused to fire him and also appointed a guardian ad litem in unrecorded hearings through misconduct. I filed a request to accept his resignation before the GAL was appointed, again spoiling the scheme. The idea behind the appointment of a GAL is that the attorney can wave the legal entitlements of the party, but the party won't be able to fire them because only the GAL can appeal on her behalf. I now had to study not only statutes, court procedures and Rules of Professional Conduct, but also the Colorado Appeals Rules – and all with a stressful schedule as Judge Arkin was rushing. My husband is allowed to deny the domestic assault of 10/11/13 because the judge prevented me from entering the courtroom as his case was sealed – so I was in fear for my life and too injured to move out of the marital home. Magistrate Moss let me reside there while proceedings are on. I discovered that the West Law Series is extremely easy to understand. There is nothing about the law that is complicated. There is not much left of the law either – each time a judge suspect that the Law of the Land contradicts her kickback and bribe potential she informs a justice. The Court Improvement and other committees immediately pass new court rules and local laws to avert the danger of decreased litigation or pro-se representation. Study C.R.C.P 15(4) (replace the C for Colorado with the first letters of your state). In the case of pro-se litigants the judges don't record hearings and issue fabricated arrest warrants to prevent appeals. Court's clerks are supervised by the judicial district's chief judge and are expected to endorse fraudulent documents. My friends who hired attorneys went down faster and stronger than I did. Going pro-se kept me in the marital house for another year – extremely important considering all the fractures and skeletal injuries from the deniable assault. I also enjoyed the monthly maintenance that Magistrate Moss prescribed and medical care. In the end, Judge Arkin held illegal hearings and did illegal things and I didn't get half of the marital home or half of the marital estate or any financial compensation for my injuries. The attorneys and judge are enjoying these. But I was going to get a lot less if I had not fired Bonnie Shields and Robert Wolf timely. Please write congress – disassemble the judicial branch and save billions weekly on appointments by judges. Why pay billions if they don't uphold the law at all? Replace with DORA regulated magistrates – no judges, no attorney of record and no justices. A more complete plan on my page.

  • We likely already a one-party country, except that some parties haven't heard of it yet. Ask Gore. The Clintons line the pockets of judges and attorneys in return for arms deals kickbacks. Justices will put their own people in power. Ask the Bushes and watch Fahrenheit 911. Judges are immune. Attorneys have no liabilities associated with their licenses. Doctors and bankers are self-regulating. Judges don't want to be elected anymore. This brings America on a par with Russia, China, North Korea. We have the same judicial branch.
    In court oral Agreement Law is misapplied everywhere. See Rules of Civil Procedure 15(4) – by a moment of silence an attorney can indicate to the judge that they agree with the other side without the knowledge of the party and against its will. In Family Court the judges appoint a state funded guardian ad litem who is paid a second time for the same services as the unbundled services of the same party without their knowledge and against their will. In Criminal Court public defenders and attorneys will prosecute an innocent party for money. The party will have served their sentence and will not be released from incarceration unless they admit to a crime they didn't commit. Bribe is what the courts have always been about. The FBI can't prosecute without a prosecuting attorney, law or a judge. All are missing. Governor of Colorado, Hickenlooper, signs bills to hire cops with criminal background & generate foreclosures by giving Community Association Managers the right to take "undisclosed fees" in the form of kickbacks from attorneys for starting litigation. The attorney who conducted the sunshine report for DORA, as well as a senior DORA representative both resigned. I hear that he wants to prevent the public from voting for judges.
    Three new amendments to the U.S. Constitution can change the course of history: 29 – state employee, DORA regulated judges. No appeals. No need to botch the case. Work from the constitution up. Simple. 30 – Clerks supervised by Sheriff's office & DORA. No justice department. No chief judges. No justices. 31- No attorneys ever elected with the legislative branch. No legislators eligible for attorney license.
    I'm not an attorney and don't give legal advice. There is no such thing as legal advice as the Supreme Court changes the law weekly. Typical rulings sound like this: "no need for separation of authorities due to accountability" & "illegal contracts with attorneys giving them absolute power are legal as the client shows trust by signing them."
    Attorneys, doctors and bankers are self-regulating so their income doesn't represent market forces – it represents illegal corruption. The judicial branch should have no legislative powers at all. But they should stick to the constitutions, one after the other, and only later the statutes. It is easy if you don't listen to attorneys. Then all illegal activity should be curbed by state-employee, DORA regulated magistrates. A divorce should be a pro-se situation, as most if not all other civil litigation. In Criminal court innocent people are put in prison – the judges control the juries, don't follow the law, people are prosecuted by their own attorneys for profit, etc. Our judicial branch is entirely counter productive – upholding crime for business, selling people's civil rights by the hour, etc. The justice department is costing billions hourly – and all they do is sell the right for crime to politicians. Save billions and disassemble the judicial branch.
    The problem with becoming a one-party country is that other one-party countries are likely to conquer.

  • Miranda warning only applies for custodial interrogation, not for an arrest. just to help all of you law enforcement majors studying for a test.

  • Nice,…  is there also a Video, why Court Costs, Claims for damages, etc. are so freakin expensive in the US? If it's true from what i hear in the News, then those expenses are arond 50 – 500times more expensive then in Europe.

  • Oh my…please slow down.Put the coffee mug down, the caffiene is not helping! Otherwise informative, but i had to rewind a few times.

  • Craig- Outstanding job explaining due process. My students loved this episode (and you)! Keep up with the great videos!

  • Don’t mention notice and opportunity to be heard under procedural due process??? There’s a chunk missing here that lies at the heart of procedural due process.

  • That is partly how it works, you can't just walk away, after being told "you are not under arrest" if there is indication a crime was committed or being committed and an officer is conducting an investigation or fact finding. And there is indication you are a participant or witness. You are compelled to stay.

  • State cannot be plaintiff, there is no way for them to prove you are physically located IN the state/plaintiff and that its codes apply to you. They do not abide by due process.

  • What about pleading the 5th, can someone still plead the 5th if connected to a PSC which mimics law enforcement and is fueled mostly by corporate needs not governmental or public service needs?

  • I love these videos. I’m prepping for the bar exam and was getting sooooo bored with the painful dry lectures on constitutional law. These are so helpful in stating relevant topics in a nice, concise manner. Keep up the awesome work!

  • This stuff is quality. I don't know a thing about law and am taking an onl class for aviation law. I am glad this guy can explain this stuff. I am learning more from these videos than the course.

  • Never understood why legal scholars didn't think the Supremacy Clause applied to the 5th amendment. If the federal government has to do it and its federal law then States obviously have too also. Section 1 of the 14th amendment seems moot…but whatever doesn't matter at this juncture anyway.

  • Including using surveillance as a weapon against you…for intimidation/ slandering you to others.. don't piss off cops. They have advance surveillance now..MZ catcher's. Used in combination with new voice Morpher technology they can get a sample of your voice and fabricate a entire confession by you but not by you! Research new technology… Question everything… Accountability is not always..the case…

  • when my teacher puts this on an the other teacher laugh for something he does, shes the only one that laughs

  • All this kind of goes out the window for most people. Defense attorneys usually are so overworked they don't really have time to to actually defend someone's rights, so if you get arrested, even if you did nothing illegal or I'd the police violated your rights, the judges and lawyers all tell you to plead guilty. In many cases, innocent people detained without even a charge, and never get a trial.

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