Inside The Sixth Amendment: Rights That Shape Justice

Power decides what counts as fair—unless people do. That’s the heartbeat of our conversation with Professor Esther Hong, a scholar of youth and adult carceral systems and a former appellate advocate, as we unpack how the Sixth Amendment still guards legitimacy in a justice system dominated by plea deals. We walk through the core rights—speedy and public trial, impartial jury, notice of charges, assistance of counsel, confrontation, cross-examination, and compulsory process—and trace how they became binding on the states through the Fourteenth Amendment’s Due Process Clause.

We explore why Gideon v. Wainwright is more than the right to counsel; it’s a landmark in incorporation that shaped modern criminal procedure. From there, we look squarely at the rise of plea bargaining and the Supreme Court’s recognition in Lafler and Frye that real-world fairness requires effective counsel during negotiations. Even when trials are rare, those trial-centered rights still set the terms of negotiation and keep the state’s burden high.

Juries get special focus through Duncan v. Louisiana: ordinary citizens serve as a deliberate check on concentrated power, especially in serious cases where liberty hangs in the balance. We also examine the confrontation right through Crawford v. Washington, which re-centered live, adversarial testing of testimonial statements and rejected convictions built on untested accusations. Along the way, we push back on myths from televised trials, noting that many cases move fast, often without juries, and sometimes without counsel, while the Sixth Amendment continues to function as a constitutional North Star.

If you want a clear, grounded tour of how counsel, juries, and confrontation still shape fairness—and how incorporation brought these protections into everyday state practice—this conversation offers both legal insight and practical context. Subscribe, share with a friend who loves law and policy, and leave a review telling us which Sixth Amendment right you think needs the strongest protection right now.

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Chapters

• 1:33 Setting The Stage: Sixth Amendment
• 2:16 What Fairness Meant And Means
• 3:58 Incorporation And Gideon’s Legacy
• 6:03 Rise Of Plea Bargaining
• 8:44 Why The Jury Right Matters
• 12:12 Confrontation And Crawford
• 15:23 Myths Versus Reality Of Trials
• 17:41 Enduring Significance And Closing

Transcript

SPEAKER_01: 0:47

Today's guest is Professor Esther Hong, a scholar of youth and adult carceral systems whose work examines the juvenile legal system and what it reveals about the broader carceral state. A former appellate advocate for indigent youth and adults, Professor Hung now teaches criminal law and criminal procedure at the ASU Sandra Day O'Connor College of Law. She is a graduate of Stanford Law School and brings both scholarly and lived legal experience to today's conversation. Professor Hong, thank you so much for being here today. I'm excited to talk about, I mean, the Sixth Amendment kind of as a whole. So the first question I have for you is kind of on the foundations of fairness. So the Sixth Amendment guarantees us a speedy and public trial by an impartial jury. What did the framers mean, or what does fairness in a trial mean? And how has that evolved with modern criminal justice?

SPEAKER_00: 1:45

Yes, thank you for the question. And also thank you for having me on your podcast. So the Sixth Amendment ensures that a defendant in a criminal prosecution receives a fair trial. And fairness is guaranteed by a set of specific procedural rights that the defendant has. And these include the right to be informed of charges, including the nature and cause of the charges, so that they can prepare for their defense, the right to assistance of counsel, which means that there's a right to an attorney if they cannot afford one, but it's only for certain charges and proceedings, the right to a trial that is speedy and public, as you mentioned, the right to have an impartial jury determine the guilt. And that jury has to be chosen from the state and district where the crime occurred, and the district has to be previously determined by law, and the right to confront and cross-examine witnesses and to compel witnesses and to appear in their favor. So all of these rights ensure that a defendant has adequate time, resources, and transparency to prepare a defense and ultimately receive a fair trial. In terms of how the Sixth Amendment evolved, I want to highlight two key developments because it also gives us insights into the meaning of the Sixth Amendment. The first is what is referred to as the incorporation of rights against the states. And I'll tell you more what that means. So when the Sixth Amendment was ratified in 1791 as part of the Bill of Rights, it was widely understood to only bind or apply to the federal government, meaning that states were governed by their own constitutions and statutes. And of course, there was some overlap with the rights in the Sixth Amendment, but the states didn't have to follow the Sixth Amendment. After the 14th Amendment was ratified in 1868, the Supreme Court began to rely on the due process clause to analyze which rights in the Bill of Rights should also apply to the states because they were deemed necessary for fundamental fairness. And that is a doctrine called incorporation. So the process was slow, and the majority of the Sixth Amendment rights were expressly incorporated against the states in the 1960s. So the famous case, Gideon versus Wayne Wright, 1963. A lot of people assume that that case is just about the right to counsel in criminal cases, but actually it's an incorporation case, meaning that the court knew, everyone knew that the federal government had to provide right to counsel in federal criminal cases. But it was in that case that the Supreme Court said that the states also have to follow the Sixth Amendment right to counsel because of the fundamental fairness argument under the due process clause. And the states had to give defendants counsel if they couldn't afford one in felony cases. And later on, the court expanded that to include more cases. So starting with these incorporation cases, the contours of the Sixth Amendment rights began to get more defined. It was also the 60s that the right to cross-examine and confront witnesses was incorporated, as well as the right to speedy trial, suppulsory process, jury trial, which we'll talk about later. But this is it was through these cases that the Supreme Court began to really define these rights. The second major development is that is important to note is the increased reliance on plea bargaining to resolve most criminal cases. So plea bargains began to take place early on, and their legal realists began to support it. And 1950s and 1960s, they began to become much more accepted in the academy and in court. They really took off the 60s and 70s when criminal cases surged. Over 90% of criminal convictions result from guilty pleas, meaning the prosecutor and the defendant negotiate charges and sent recommendations in exchange for the defendant waiving and formal entering a plea that results in a guilty conviction. So, for example, in federal criminal cases, generally 98% of convictions are a result of pleas. In state cases, generally between 90 to 95% of convictions are a result of pleas. They have become so common that in 2012, the Supreme Court observed in a case called Laffler versus Cooper and a companion case, Missouri versus Fry, that the reality is that criminal justice today is for the most part a system of pleas, not a system of trials. As a result, in that case, the court actually expanded the Sixth Amendment right to counsel to include the right to effective assistance during plea negotiations. But even in light of this reality, the Sixth Amendment remains critically important because it often functions as the defendant's primary bargaining leverage in plea negotiations. And the right to a fair trial really serves as the North Star for many pretrial proceedings and processes, including discovery and disclosure obligations and also the right to counsel. So for that reason, the Sixth Amendment right to trial and six amendment rights are very, very important. Even with the overwhelming prevalence of plea bargaining as well, the absolute number of criminal trials is still substantial. And the public visibility of criminal trials, especially in the media of high-profile cases, it continues to play a very important role in shaping perceptions of fairness and legitimacy in the criminal system.

SPEAKER_01: 7:56

So you talked about a jury. So why did the framers believe that it was so important for ordinary citizens, so not judges or government officials, to decide guilt or innocence? What does the jury system reveal about our values in the Constitution?

SPEAKER_00: 8:14

Yeah. So first, the right to a jury trial under the Sixth Amendment has been interpreted to only apply to serious cases, which generally means offenses that are punishable by more than six months imprisonment, although some limited exceptions apply. So when I teach the Sixth Amendment to my students, I say, I know the text says all criminal prosecutions, but for two other rights, there's an asterisk next to that word, all. And the right to jury is one of those rights where it doesn't apply to all criminal prosecutions, but just serious cases. The framers believed that juries, which are composed of ordinary citizens, were necessary as a check on government power. So I'm going to read some quotes from the court's opinion in a case called Duncan versus Louisiana. It was a 1968 case that incorporated the Sixth Amendment right to jury against the state. And it does a wonderful job of showing not only why the framers provided this right, but also how important they are to the democratic values that are foundational in our constitution. So the court said, those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The court then continued, providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. And here's the part where I think it really gets to the value of the constitution. Beyond this, the jury trials in the federal and state constitutions reflect a fundamental decision about the exercise of official power, a reluctance to entrust plenary powers over the life and liberty of a citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our state and federal governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocent. I think the words still remain true today. Um, it's not only the actual criminal prosecutions, but the fear of them that represent really the height of government power because it had the power to take away someone's life, liberty, or pursuit of happiness in a quote, legitimate and lawful way. So it was a framers designed to really ensure that people, everyday citizens, would have protection against that. And that allows them to really participate in our democracy.

SPEAKER_01: 11:17

That is, it's fun sometimes because I think when we talk about, you know, especially in America 250, we're talking about the Declaration. I think sometimes people are a little like, oh, that was in the 1700s or whatever. But it really does tie into the Constitution, to kind of how we live every day. And I mean, that quote was just so good. And you're right, when we're talking about taking away somebody's life, liberty, and pursuit of happiness, it can't just be, you know, there needs to be a process, there needs to be more to it. Right. So part of the Sixth Amendment is your ability to face your accuser. So why are these rights so vital to justice? And how do they shape what we think of a fair trial today?

SPEAKER_00: 12:05

Yeah, great question. The Sixth Amendment rights to confront and cross-examine adverse witnesses and to compel favorable witnesses to appear. They're very central to justice and to our understanding of a fair trial. So, first, these rights are essential safeguards against wrongful conviction, right? So they ensure the government's evidence is tested in open court, that the accused has a meaningful opportunity to present a defense. And they also reflect the framers' commitment to, again, guarding against unchecked government power, which in the criminal context means preventing convictions based on untested or secret accusation. So in 2004, uh, the Supreme Court issued a decision called Crawford versus Washington, and it fundamentally reshaped the confrontation clause doctrine. And this case also reveals some insights, again, about the framers' commitment to democracy, to providing checks against government power, et cetera. So in that case, Crawford versus Washington, the court rejected a prior test. It was a reliability test that helped determine when out-of-court statements can come into court during trial. And the court here said that testimonial statements made by a witness outside of court can only be omitted in trial if the witness actually appears and therefore can be confronted and cross-examined. The only exceptions are when one, the witness is unavailable, and two, the defendant had a prior opportunity to cross-examine the witness. If one of those were not fulfilled, then the statement couldn't come in if the person was not available. The court granted this rule in history, pointing in particular to someone named Sir Walter Raleigh and his trial. And in particular, in that trial, his conviction rested on ex-party examinations rather than live adversarial testing in open court. And the modern court in 2004 decried it, decried that practice. So therefore, in Crawford and its subsequent cases, the court reaffirmed that the rights of confrontation and cross-examination are fundamental to preserving fairness in criminal trials, and again, to maintain a meaningful check on government power.

SPEAKER_01: 14:37

Professor Hong, today what do you think people misinterpret most about the Sixth Amendment? Or what do you wish they knew more about when it comes to the Sixth Amendment? Because I like that you brought up, you know, these like public trials, because you turn on the news and they're talking about the Reiners, right? And his son and how the judge said that he, you know, we're not going to show him on TV. And I think that when I mean, even me, I'm thinking about the OJ Simpson case. I think a lot of people see like those big things, or they watch like legal shows and think that this is how the system works, but it's not. It's not like glamorous and dramatic, if you will.

SPEAKER_00: 15:26

Yeah. I think that's so true. I think the reality of our criminal system is that, like the Supreme Court said, it is a system of pleas. Yes. And in some instances, cases can be resolved in minutes. The vast majority of criminal cases are state misdemeanor cases. And in many of those instances where prison or imprisonment is not on the table, there's not even a right to a jury or to to even counsel. But the Sixth Amendment, like I said, it is the North Star. It is just, it's in the air that the criminal system breathes. And so it is very, very important that we have these rights because at the end of the day, it is really one of the most powerful tools that the defendant has to ensure that they receive fairness throughout the criminal process, from the very time that they are charged and even arrested to sentencing. And so it is profound, it's still profound to me that the framers really ensured that defendants would have these rights. It made it so that criminal prosecutions were supposed to be slow and difficult for the government to use. And I think that while our current system oftentimes is the opposite of that in terms of how pleas are implemented, that having this text and having this in the background, it still ensures that there is some fairness that applies. And again, if the defendant wants to go to trial and in serious cases want to have a jury, that they are entitled to that.

SPEAKER_01: 17:15

Professor Hong, thank you so much. Not only for the all the Supreme Court cases you gave us to look into, but for helping us really ground this in, you know, the Declaration of Independence and the Constitution, because the reality is those aren't separate things. The systems we have today are based on that. So we appreciate your expertise and your willingness to talk to us today. Thank you.

SPEAKER_00: 17:40

Thank you so much for having me. It's such a joy to be here.