OVERVIEW OF SIXTH AMENDMENT RIGHTS

There are no less than six (6) clauses in the Sixth Amendment, two of which
apply to preliminary proceedings, and four of which apply to trial. The
Amendment, in whole, reads:

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.

We dealt with the two clauses that apply to preliminary proceedings in a

previous lecture - the notification clause (to be informed of the nature and
cause of the accusation) and the assistance of counsel clause (to have the
assistance of counsel for his defense). In this lecture, we deal with the
remaining clauses:

the speedy and public trial clause (enjoy the right to a speedy and
public trial)
the impartial jury clause (by an impartial jury)
the confrontation clause (to be confronted with the witnesses against
him)
the compulsory process clause (to have compulsory process for
obtaining witnesses)

The speedy and public trial clause is believed to have its sources in the
Magna Carta, at least the speedy part. The idea of a public trial goes back to
the Bible. This is a right that protects both individuals and society. It is
intended, sociologically, to protect society by having therapeutic value. It is
important to note, however, that most statute of limitations override 6th
amendment guidelines, and that some delays do NOT trigger 6th Amendment
protections. The case of Barker v. Wingo 407 U.S. 514 (1972) is the landmark
case in this area. It sets up an ad hoc balancing test where the reasons, length,
assertion of right, and prejudicial error are looked at in each case of delay.
Public trial is a separate issue disjoined from the right to speedy trial.

The impartial jury clause supplements the earlier guarantee of jury trial
in Article III of the Constitution. A jury size of 12 is mostly a historical
accident, but the idea is to have a jury large enough to promote group
deliberation, freedom from outside intimidation, and the fair possibility of a
cross-section of the community. The notion of "cross-section" applies to the
venire, or jury pool, from which eligible jurors are drawn. There is nothing in
the Constitution which mentions that jury verdicts must be unanimous.
Impartial means no knowledge of case (or only minimally knowledgeable); no
familiarity with parties; and no favoritism or prejudice toward the parties in
the case or the class from which they belong.

The confrontation clause guarantees the right to confront hostile

witnesses. Defendants have the right to test the credibility of their accusers in
order to prevent ex parte (outside of court) hearsay statements. This right is
designed to enhance the truth-finding function of trial in two ways: by face-to-
face confrontation during the witness's direct testimony; and through the
opportunity for confrontation by cross-examination. The first way entitles the
defendant to be in court at all important stages of testimony, and their physical
presence in the courtroom is normally required unless: (a) they voluntarily
choose to be absent; or (b) they continually disrupt the proceedings after being
warned not to do so. The second way permits the defendant, or more likely,
their counsel, to test the witness's credibility and reliability under cross-
examination. To some extent, almost any test is tolerated, including the
witness's believability. An important derivative of this right is the Hearsay
Rule (Federal Rule of Evidence 801c) which, in general, prohibits hearsay
because the defendant cannot confront an absent witness. However, the U.S.
Supreme Court has held that the confrontation clause does not prohibit
hearsay under certain exceptions: if the prosecution demonstrated good-faith in
getting a witness to testify; if the hearsay is trustworthy and reliable in the
totality of circumstances; or any number of other exceptions to the hearsay
rule.

The compulsory process clause guarantees the right to compel the

attendance of favorable witnesses. This is usually done by means of a court-
ordered subpoena. To exercise this right, the defendant must show that the
witness's testimony would be relevant, material, and favorable to the defendant.
Compulsion of such witnesses must not be cumulative or redundant. In other
words, the defendant does NOT have the right to keep calling witness after
witness to testify favorably on their behalf.

THE RIGHT TO A SPEEDY TRIAL

The speedy trial clause of the Sixth Amendment applies to the states through
the Fourteenth Amendment and was selectively incorporated in the 1967 case
of Klopfer v. North Carolina. Prior to the 1960s, the notion of a speedy trial was
rarely discussed, or needed, for that matter, since most cases proceeded in
timely fashion. By 1970, however, a backlog of cases began to appear in court
systems, and lawyers started to question whether lengthy delays were
constitutional or not. There was much disagreement over exactly when the
clock should start ticking; whether from the time the offense was committed or
from the time formal charges were filed. In U.S. v. Marion (1971), the Court
ruled that the clock started ticking from the time of indictment, or when
formal charges were filed. This allows prosecutors to publicly announce that
indictments are forthcoming, and take as long as they want, two or three years,
for example, to actually file charges.

The following year, in 1972 with the case of Barker v. Wingo , the Supreme
Court was asked to decide exactly how long a delay in bringing someone to
trial is unconstitutional. The case involved a five year delay after an indictment
had already been filed. Barker had committed murder along with an
accomplice named Manning, and to convict Barker, the prosecutor needed
Manning to testify, but Manning refused to do so on Fifth Amendment
grounds. So, the prosecutor decided to try Manning first, convict him, and
remove his reason for no longer testifying against Barker. Unfortunately, it
took longer to convict Manning than anticipated, five years, in fact, until
Barker's trial and conviction was obtained. Barker's lawyers appealed on
constitutional grounds, but a unanimous Supreme Court upheld Barker's
conviction. The Justices refused to interpret the Sixth Amendment as requiring
any specific length of time. Instead, Justice Powell delivered the majority
opinion which established a balancing test, which he said applied in Barker's
case because there was reason to wait for a witness, there was no prejudice, and
Barker's lawyers only raised the delay issue fairly late. This balancing test is
known by a number of names: Justice Powell's balancing test, the Barker test,
or the ad hoc balancing test (because it seemed tailor-made to ensure Barker's
conviction). It sets up the following conditions for courts to consider:

The ad hoc balancing test (four criteria) for determining

unreasonable delay:

the length of the delay (the longer, the more

unreasonable)

the reasons for the delay (the prosecutor must have

good reasons)

the point at which defendant asserts their right (if it's

just another attempt at avoiding conviction or
punishment)

whether the delay prejudiced the defendant (if their

favorable witnesses died, for example)

In the uproar that followed the Barker decision, the U.S. Congress decided to
pass legislation called the Speedy Trial Act of 1974. It applies only to federal
courts, but it sets specific time limits, requiring indictment within 30 days of
arrest, arraignment within 10 days after indictment, and trial 60 days after
arraignment. This stringent set of protections goes beyond what the Supreme
Court thinks is fair, and this area of Sixth Amendment jurisprudence is one of
the few areas where there is a hotly contested interpretive battle going on
between two branches of government. Most states passed their own version of
the federal Speedy Trial Act, the most common time period being 90 days from
arrest to trial (which is what you see in criminal justice textbooks, although
state laws vary considerably). Needless to say, court backlog, congestion, and
delay still exist, so statutory law is rarely enforced since constitutional law
provides much more breathing room. A few dismissals have occurred, however,
but generally, no legislator likes to see the guilty go free under some law they
passed. To give the appearance of effectiveness, most states and even the
federal government, have enacted exceptions to their Speedy Trial Acts. The
most common exception is whether or not delay is caused by the defendant's
motions.

No one has dared experiment with the implicit reasoning in the Barker
decision to consider whether delay is an attempt to escape punishment. Reform
in this area tends to get caught up in revisions of habeas corpus law or
restrictions on frivolous lawsuits. To this day, the speedy trial clause and
Speedy Trial Acts remain as little-known loopholes, taken advantage of by a
small number of defendants and lawyers. Also, given the fact that only a small
number of cases go to trial because of plea-bargaining, it is not in the
defendant's best interests to assert their right for speedy trial early on. That
would negate any opportunity for adequate plea-bargaining to occur.

The notion of making the criminal justice system speedier has appeal to
some. After all, every parent knows that you don't raise your children by
saying "Johnny, you been bad, so six months from now you're going to be
grounded." However, criminal justice systems loaded with constitutional
safeguards simply do not lend themselves to swiftness. About all that can be
done is to enhance or intensify some of the components or subcomponents of
the system, such as with "intensive probation" where probation officers drive
around at night or make it so they can show up on a home visit at any time.
Another idea is to use the civil justice system, not generally known for being
fast in itself, but by adding such things as "gang injunctions," it's possible to
clean up a neighborhood quicker with anti-gang injunctions which board up
drug houses and the like. Similarly, drug testing and gun searches would
accomplish the kinds of objectives which target those criminals who are
presumably taking advantage and making a mockery of the system's slowness.
Beefing up truancy enforcement might also produce some changes along the
lines that the system is swiftly holding people to some higher standard.

THE RIGHT TO A PUBLIC TRIAL

 The right to a public trial is NOT absolute. The governmental purpose of
keeping the criminal justice process out in the open is to ensure that all
participants, especially judges and prosecutors, act professionally at all times.
Openness is a presumption, not a right. The law presumes that open, public
proceedings will be the norm at all stages of the criminal justice process.
However, the presumption of openness can be easily overturned by any motion
for closure. There are a number of well-established precedents setting forth
good reasons for closure; organized crime cases in which the identities of
jurors are kept secret (anonymous juries); rape cases in which common
decency closes proceedings to the public; and juvenile cases in which concern
for well-being closes proceedings to the public.

Closure is decided on a case-by-case basis at the discretion of the judge, as

are gag orders to the media, although there are tougher standards for avoiding
pretrial publicity. Constitutionally, there must be some substantial or
legitimate public interest served; in practice, most any claim of embarrassment,
trauma, or intimidation overrides the presumption of openness. Press-
Enterprise Co. v. Superior Court of California (1984) requires a showing of why
alternatives to closure are inadequate. Many scholars regard the right to public
trial and the right to free press to be in conflict.

THE RIGHT TO AN IMPARTIAL JURY

It's a fact that when the English nobles forced King John to sign the Magna
Charta establishing a right to a jury of one's peers, they were talking about
juries that consisted of members of their own social class. The principle set
down that year in 1215 was that commoners should be tried by commoners and
noblemen by noblemen. In America, of course, we don't recognize social class,
so our substitute for this principle is the idea of a cross-section of the
community. That is quite the opposite conception of what juries were
originally intended for. Furthermore, juries, for centuries, were selected for
their good judgment and knowledge of the case. Somewhere in Anglo-
American common law, this changed into a conception of impartial juries who
were best seen as knowing as little as possible (about the case).

The jury trial clause of the Sixth Amendment applies to the states through
the case of Duncan v. Louisiana (1962). It's also guaranteed in Article 3,
Section 2 of the Constitution which says that all crimes, except impeachment,
shall be tried by jury. All that Duncan provides is the right to a jury at the
state level if such a right would exist at the federal level. There is NO right to a
bench trial in front of a judge without a jury; that's a privilege at the court's
discretion. There is NO right to a jury in military justice, and there is NO
constitutional right to a jury for juveniles. The Supreme Court reasons that the
jury right is actually an entitlement that extends to classes of cases where the
entitlement existed when the Constitution was adopted. As interpreted, most
jurisdictions now provide the right when the potential penalty is more than six
months imprisonment, or a non-petty offense. It doesn't matter if there's a
whole bunch of petty offenses for which the penalty adds up to more than six
months. The seriousness of the offense is what matters.

THE RIGHT TO CONFRONTATION

The origins of the right to confrontation are obscure. One romantic myth
traces it to the trial of sir Walter Raleigh, who was convicted on the basis of an
affidavit by an alleged co-conspirator who was never produced in court. Trial
by affidavit, or ex parte absent witnesses, is common in civil law, but it is
strictly prohibited in criminal cases by the Sixth Amendment. Nevertheless,
evidence law allows certain exceptions, especially in criminal cases. The dying
declaration is one such exception, and criminal courts place a lot of weight on
the last words of a victim or witness, regardless of their accuracy. Another
doctrine is the so-called availability standard , which allows admission of ex
parte testimony if the prosecutor has exhausted all means at the government's
disposal to bring forth a witness. Forensic law also allows some experts to
testify by written report or response to hypothetical research questions.

The right to cross-examine witnesses of one's adversary is absolute. The right

to confront the witnesses of one's adversary in a face-to-face context before a
judge or jury is NOT absolute. This is because the right to cross-examination
has been thought of as the "greatest legal engine ever invented for discovery of
truth" and to "inhere logically from the confrontation clause" (Bruton v. U.S.
1968). With few exceptions, the Court has always treated cross-examination as
the more logically derived right or what the framers intended. Cross-
examination is also a more "critical" right since it is allowed when taking
depositions from potential witnesses in the pretrial stage where the defendant
is not normally present.

The most common situation in which the confrontation clause is triggered

involves a joint trial of two or more co-defendants where one confesses (and
implicates the others) while the others take the Fifth Amendment and refuse to
testify on their behalf. In such situations, the Hearsay Rule needs to be relaxed
and/or juries instructed not to consider the implicating confession as proof of
guilt for the silent co-defendants, nor the right to remain silent as proof of
guilt. Needless to say, jurors have to perform some neat tricks of "mental
gymnastics" to follow these kinds of instructions, and it becomes all the more
complicated when you consider that a prosecutor's favorite trick is to try all co-
defendants jointly and rely upon the pretrial confession or deposition of one
co-defendant in a refreshed memory tactic when all the defendants take the
Fifth at trial. All these situations involve the Bruton doctrine (from Bruton v.
U.S. 1968) which has many exceptions, but generally prohibits prosecutors
from using a "one trial for all" tactic. Many scholars regard evidence law as
being in conflict with constitutional law on this regard.

In recent years, there have been more straightforward cases involving the
confrontation clause. Coy v. Iowa (1988), for example, involved sexually abused
child victims who testified in the courtroom behind a screen so as not to see the
defendant during their testimony. The Supreme Court ruled this was
unconstitutional, not because it deprived the defendant of his rights, but
because the state of Iowa was doing it for all sexual abuse cases. There has not
been a standard or test developed in any subsequent rulings, and appellate law
varies by region. Most regions follow a public policy and necessity
standard set down by Thomas v. People, 803 P.2d 144 (Colo. 1990) which
requires the trial judge make a particularized finding over the individual
mental or emotional harm a child victim of sexual abuse would experience in
the presence of the defendant. Various state shield laws provide a constant
arena of constitutional questions, as does the modern use of technology, such
as videoconferencing.

THE RIGHT TO COMPULSORY PROCESS

The compulsory process clause of the Sixth Amendment was made binding
on the states in Washington v. Texas (1967), although the right has long existed
in state constitutions and statutes before then. The right allows defendants, free
of charge as long as material to their case, to obtain a subpoena to call forth
witnesses, documents, and objects on their behalf. Court clerks issue the
subpoenas, and they are usually served by a marshal, sheriff, or process server.
Prosecutors normally don't challenge a defendant's exercise of this right, but
when they do, a judge must rule on the materiality to the case.

It's important to note that pretrial reciprocal discovery rules and notice-
of-alibi rules generally outweigh the constitutional right to compulsory
process. Again, as with the confrontation clause, many scholars regard
evidence law as being in conflict with constitutional law in this regard,
although limitations on the right to compulsory process have a long history in
the exclusionary rule going back to Weeks v. U.S. (1913). A typical reciprocal
discovery rule reads as follows:

Subject to constitutional limitations and a reasonable amount

of time, counsel shall inform their adversary of any defenses they
intend to make at hearing or trial, and shall furnish the other side
with a list of the material and information within its possession or
control. Such furnishing shall include the names and last known
addresses of persons intended to be called as witnesses.

Discovery rules prevent abuse of compulsory process to "ambush" the other

side. Notice-of-alibi rules serve the same purpose, but additionally place
restrictions on a defendant's continual calling of witness after witness in hopes
of obtaining an alibi.

The compulsory process clause has an interesting history of being involved in

cases of national security, secrecy, and Presidential privilege. Several
Presidents have been subpoenaed for documents, from Thomas Jefferson (in
the Aaron Burr trial), to Richard Nixon (in Watergate), to Bill Clinton, and all
have either lost or won their claims to executive privilege outweighing the right
to compulsory process.

INTERNET RESOURCES
Anatomy of a Murder: A Trip Through the Legal System
Courtroom 21
Court TV
Lecture on PreTrial Procedures
Lecture on Reversible Error
Nolo Press
Vera Institute

PRINTED RESOURCES
Beaney, W. (1955). The Right to Counsel in American Courts. Ann Arbor: Univ.
of Michigan Press.
Epstein, L. and T. Walker. (2001). Constitutional Law for a Changing America.
Wash. DC: CQ Press.
Ferdico, J. (1996). Criminal Procedure for the Criminal Justice Professional. St.
Paul: West.
Garcia, A. (1992). The Sixth Amendment in Modern American Jurisprudence.
Westport: Greenwood.
Heller, F. (1951). The Sixth Amendment to the Constitution of the U.S. Westport:
Greenwood.
Levy, L. & K. Karst. (eds.) (1998). Encyclopedia of the American Constitution.
NY:Macmillan.
Lewis, A. (1989). Gideon's Trumpet. NY: Vintage.
Scheb, J. and J. (1999). Criminal Procedure. Belmont, CA: Wadsworth.
Scott, A. (1982). "Fairness in Accusation of Crime" Minnesota Law Review
41:509-46.
Westen, H. (1978). "Confrontation and Compulsory Process" Harvard Law
Review 91:570-89.

Last updated: 01/06/04

Syllabus for JUS 410
MegaLinks in Criminal Justice