The Sixth Amendment: The Right to a Fair Trial

Colonial Americans had frequently experienced the disadvantages faced by those accused of crimes under English law. Therefore, as early as the Massachusetts Body of Liberties in 1641, they protected the right to a speedy trial, by a jury, and with counsel. After independence, many states also protected such rights in their constitutions. The Sixth Amendment was added to the U.S. Constitution to ensure that criminal defendants received a fair trial-although it does not use those exact words. The amendment repeats Article Ill’s guarantee of a trial by jury in criminal cases, but it adds other important rights as well-such as the right to subpoena witnesses and to have a lawyer. The Sixth Amendment attempts to balance the enormous power of the state, which pays for both police and prosecutors to prove guilt, against the power of the individual to prove innocence.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial

Although the Sixth Amendment refers to “all criminal prosecutions,” its protections do not always apply to every minor offense, such as jaywalking or speeding. Under the Sixth Amendment, the defendants must receive speedy and public trials, although defendants may waive those rights if they choose.

Speedy Trial

The defendant must be brought to trial quickly, because, as legal scholars say, “justice delayed is justice denied.” A person is assumed by the law to be innocent until proven guilty, but a long delay before the trial can damage that person’s reputation in the community.

Sometimes a defendant is denied bail and therefore remains in jail until the case is tried; the Sixth Amendment ensures that the defendant does not languish in jail. Also, witnesses’ memories can fade over time; a speedy trial often guarantees a more accurate verdict. Defendants can move to delay their trials if they need more time to prepare their defense, or if they think the passage of time and dimming of memories will hurt the prosecution’s case.

If the prosecution does not bring the case to trial in a speedy manner, then it must drop the charges against the defendant. The Supreme Court has rejected a specific time frame for when a defendant must be tried in order to receive a speedy trial, but in Barker v. Wingo (1972) the Court did establish general guidelines that apply both to state and federal cases.

Congress enacted fixed time limits for the federal government to bring criminal charges in the Speedy Trial Act of 1974. Currently, federal prosecutors must start their trials no more than one hundred days after making an arrest. In addition, some states have passed laws limiting the time before a defendant is tried.

Public Trial

Besides a speedy trial, the defendant is also entitled to a public trial. The purpose of this right, said the Supreme Court, is to serve as “a safeguard against any attempt to employ our courts as instruments of persecution.” In England, Charles I used the Star Chamber, a special court that met in secret, to suppress dissent in the 1630s. The Star Chamber thus became a potent symbol in America of a tyrannical court.

However, the Supreme Court has ruled that a trial can become too public. In Sheppard v. Maxwell (1966), the Court held that excessive pretrial publicity can prejudice the jury and deny the defendant a fair trial. The case involved Dr. Sam Sheppard, who was accused of murdering his wife in Cleveland. According to the Supreme Court, Sheppard’s case became “a Roman holiday for the news media.” In high-profile cases, said the Court, the judge must take active steps to guarantee an impartial jury, such as moving the venue or location of the trial and sequestering the jury.

Sometimes the defendant’s Sixth Amendment right to a fair trial conflicts with the public’s First Amendment right to attend and speak about criminal trials. The Supreme Court has ruled that the right to a public trial under the Sixth Amendment is for the benefit of the defendant, not the general public or the media. However, the Court held in Richmond Newspapers v. Virginia (1980) that the First Amendment gives the public a right to attend criminal trials in most cases. In addition, judges may not ban the media or issue gag orders limiting trial coverage, although they may take other steps to isolate the jury from prejudicial publicity if necessary.

Trial by jury was one of the most precious rights to early Americans. That’s why the Constitution protects it three times: for criminal trials in Article III and the Sixth Amendment, and for civil trials in the Seventh Amendment.
Trial by jury began in civil cases, so much of its history is discussed in the chapter on the Seventh Amendment. By the thirteenth century, trial by jury had been established in England for criminal cases, although it was not used in all trials.

The American colonists depended on juries for justice independent of the crown. Americans were outraged when Parliament allowed the colonists to be tried in courts without juries for violations of the Stamp Act of 1765.
Furthermore, Americans could be transported back to England for trial.

The Declaration of Independence cited both these practices as offenses by the king, and after the Revolution many states included defendants’ rights in their new constitutions.

But a jury trial is becoming a rarer commodity in criminal cases. As of 2000, only 4.3 percent of federal criminal charges culminated in jury verdicts, compared to 10.4 percent in 1988. By far most criminal cases are resolved through plea bargains, in which the defendant pleads guilty in exchange for a reduced sentence, thus saving the government the costs of a trial.

Standards for Jury Trials

The Supreme Court ruled in Duncan v. Louisiana (1968) that trial by jury in criminal cases applied to the states.
However, the Court has established different federal and state standards for this right, unlike any other right it has nationalized within the Bill of Rights.

The federal government must have twelve-person juries that issue unanimous verdicts in criminal trials. States can have smaller juries that render verdicts that are not unanimous except in death penalty cases. A state jury must have at least six members in a noncapital criminal trial, and that small a jury must issue a unanimous verdict. Only serious charges, those in which the maximum sentence is at least six months in jail, mandate a jury trial. The Supreme Court held in Lewis u United States (1996) that sentences for multiple charges cannot be added together; only the sentence for the most serious offense counts toward the six-month test.

Impartial Jury

The Sixth Amendment also requires that the jury be impartial. The prosecuting and defense attorneys question potential jurors, in a process known as voir dire, about their knowledge of the case and possible biases. Either attorney may challenge a prospective juror for cause if evidence indicates the juror is biased. The attorneys may also exclude a certain number of jurors without giving any reason, through a peremptory challenge. The Sixth Amendment does not prohibit the use of peremptory challenges in a discriminatory manner. But the Supreme Court has ruled that such discrimination against racial groups and women does violate the Equal Protection Clause of the Fourteenth Amendment.

To secure an impartial jury, it must be chosen from a “representative cross-section of the community.” Thus, the Supreme Court has ruled that particular groups such as African Americans or women must not be systematically excluded from the pool of potential jurors. In capital trials the state may exclude jurors who categorically refuse to impose the death penalty under any circumstances, although not those with moral reservations about capital punishment. Only the jury pool, not the final jury, has to be representative of the community in order to meet Sixth Amendment standards.

Local Jury

In addition to being impartial, a jury must also be local from “the state and district wherein the crime shall have been committed.” This provision is designed to prevent the British practice of carrying Americans across the seas to be tried by unsympathetic English juries. However, the defendant can waive the right to a local jury and request the judge to change the venue of the trial, if the community is biased due to pretrial publicity.

The Simpson Verdict Perhaps the most controversial example of the jury system in action was the murder trial of former football star O. J. Simpson in 1995. A jury acquitted Simpson of the murders of his ex-wife, Nicole Brown, and her friend Ronald Goldman. Critics of the verdict charged that the jury had ignored the evidence and rendered a racially biased decision. Supporters argued that the jury had properly done its job, because the prosecution due to evidence of significant police misconduct-had not proven its case “beyond a reasonable doubt,” as required by law. Simpson was later convicted in a civil trial and forced to pay damages to the victims’ families.

In the words of journalist Betsy Streisand: “For many Americans, the O. J. Simpson trial has become the criminal justice system’s Vietnam – an event of sickening revelation.”

The Sixth Amendment gives defendants the right to know the charges against them. This information is necessary to prepare a proper defense.

Normally, the judge informs the defendant of the charges against him at the arraignment, a court hearing where the defendant enters a plea of guilty or not guilty. A grand jury usually must return an indictment before the defendant is arraigned for a felony, a serious crime with a sentence of more than a year in prison. But nothing more than the arraignment is required for a misdemeanor, a minor offense with a sentence of a brief jail term or a small fine.

The charges against the defendant must be sufficiently detailed for him to offer an adequate defense. The government cannot accuse a person of a crime, for example, without stating the alleged time and place it occurred.
Otherwise, the defendant would be unable to offer an alibi. Although the Supreme Court has not officially extended to the states the defendant’s Sixth Amendment right to know the charges, mat right is considered to be an element of due process of law, which applies to the states through the Fourteenth Amendment.

The provision known as the Confrontation Clause prevents a witness from testifying in secret against the accused. It enables a defendant to challenge a witness’s truthfulness in open court. Through the process of cross-examination, the defendant can ask questions to dispute the witness’s testimony. Unless the defendant is unruly, he has the right to be in the courtroom at all times. But the judge may remove a disruptive defendant from the courtroom.

In most cases, the Confrontation Clause also prohibits hearsay, in which a witness testifies about the statement of a third party rather than something he or she directly observed. For example, Mary testifies that John said Jacob robbed a bank. But Mary herself did not witness Jacob committing a crime, and John is unavailable to be cross-examined.

Normally, Mary’s testimony would not be allowed. However, there are many exceptions to the hearsay rule, such as if John were dead or a codefendant in the crime.

Besides hearsay, the Supreme Court will also allow other exceptions to the defendant’s right to cross-examine witnesses. A witness can refuse to answer certain questions because of a privilege, such as the confidentiality of the confessional. The Supreme Court has ruled mat, under the Sixth Amendment, a witness must merely be available for cross-examination by the defendant, not compelled to answer all questions.

An especially controversial issue is whether the Sixth Amendment requires face-to-face confrontation between a witness and the defendant.

In general, such a confrontation is believed to increase the likelihood that the witness is telling the truth, because often witnesses find it easier to lie about a defendant behind his back rather than to his face. However, many states have laws that permit alleged victims in child abuse cases to testify without directly seeing the accused. The Supreme Court struck down such a law in Coy v. Iowa (1988), where the defendant was hidden behind a screen while the child testified. But in Maryland v. Craig (1990), the Court upheld a law that allowed a child abuse victim to testify on close-circuit television. Wrote Justice Sandra Day O’Connor for the Court: “the Confrontation Clause reflects a preference… for face-to-face confrontation at trial…a preference that must occasionally give way to considerations of public policy.”

“To have compulsory process for obtaining witnesses in his favor”

The state can compel witnesses to testify in criminal cases, and the Sixth Amendment gives the defendant the same power. Using a subpoena, a court order forcing a witness to testify or produce relevant materials, the defendant can gather the evidence necessary to present a valid defense. In United States v. Nixon (1974), the Supreme Court ruled unanimously that even the president must comply with a subpoena in a criminal case, unless military or diplomatic secrets are involved. President Richard Nixon had been subpoenaed during the Watergate trials to produce tape recordings of conversations in the White House.

He refused, on the grounds that such communications were protected by executive privilege under Article II. Although the Court recognized executive privilege for the first time, it still held that the Sixth Amendment right of compulsory process overcame a general claim of privilege not based on national security.

“And to have the Assistance of Counsel for his defence”

The right to counsel is the most important in the Sixth Amendment, because without it the defendant is unable to assert any other rights he has.

It is almost impossible for a layperson to navigate the complicated legal system alone. The Sixth Amendment originally protected only the right to have a lawyer present, but now it also includes the right to a court-appointed lawyer in most criminal cases if the defendant cannot pay for one. Under English law, a defendant had no right to counsel in felony cases, because the judge was presumed to be protecting the defendant’s rights.

Capital Cases

In a series of cases, the Supreme Court expanded the right to have a court-appointed attorney. The Court required legal representation for indigent defendants charged with federal felonies in Johnson v. Zerbst (1938), but it moved more incrementally for the right to such counsel in state cases. In Powell v. Alabama (1932), the Court ruled that in death penalty cases the states must provide counsel for poor people. The Court overturned the convictions of the “Scottsboro Boys,” nine African American teenagers accused of raping two white women on a freight train outside Scottsboro, Alabama. Without the right to counsel, said the Court, a defendant “though he be not guilty, faces the danger of conviction because he does not know how to establish his innocence.” Although one of the alleged victims later recanted her testimony, several of the Scottsboro defendants were sentenced to death on retrials. No one was ever executed, but they spent many years in prison, always declaring their innocence.

Noncapital Cases

The Powell case was the first step by which the Supreme Court applied the right to counsel to the states. But in Betts v. Brady (1942), the Court held that states only had to appoint counsel in noncapital cases under “special circumstances,” such as when the defendant was mentally handicapped or otherwise incapacitated from presenting a defense. The Court overturned Betts in Gideon n Wainwright (1963), requiring counsel for indigent defendants in all felony trials. In that case, Clarence Earl Gideon had sent a handwritten petition on prison stationery asking the Court to overturn his conviction for burglary because he was denied a lawyer. Gideon, an ex-con, had been accused of breaking into a poolroom and stealing about sixty-five dollars in change, which offenses combined to make a felony under Florida law. After the Gideon decision, the Court also extended the right to counsel in state cases to misdemeanors, if the defendant could be imprisoned when convicted.