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S, Sixth Amendment

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Sixth Amendment

was adopted as part of the *Bill of Rights in 1791. Some states had made their ratification of the Constitution contingent upon such adoption, reflecting a perceived need to limit the federal government’s power to investigate, prosecute, and punish crime. The original Constitution had few provisions relating to the criminal process, but of the twenty-six separate rights specified in the first eight amendments, fifteen are aimed specifically at that process. The Sixth Amendment itself specifies seven rights applicable “in all criminal prosecutions”: (1) *speedy trial; (2) public trial; (3) *trial by jury; (4) notice of the accusation; (5) confrontation of opposing witnesses; (6) compulsory process for obtaining favorable witnesses; and (7) the assistance of counsel (see counsel, right to). Although the Sixth Amendment guarantees these rights only with respect to the federal government, the adoption of the *Fourteenth Amendment in 1868 began a process of selective incorporation of the Bill of Rights provisions into its Due Process Clause. All Sixth Amendment rights have been incorporated and thus are also applicable to the states (see incorporation doctrine).

Speedy Trial.

The right to speedy trial protects three basic demands of the criminal justice system: “to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that long delay will impair the ability of an accused to defend himself” (Smith v. Hooey, 1969, p. 378). A defendant’s right to speedy trial, which can be forfeited by failure to invoke it before trial or guilty plea, attaches at the time of arrest or formal charge, whichever comes first (see plea bargaining). If the right has been violated, dismissal of the charges is the only possible remedy.

In Barker v. Wingo (1972), the Supreme Court elaborated how courts should determine whether a denial of the right has occurred. The Court first rejected two rigid approaches: the notion that the Constitution requires a trial within a specified time was rightly rejected on the ground that it would require the Court to engage in legislative or rulemaking activity; and the so-called demand-waiver rule, under which the right would be deemed waived for any period as to which trial had not been demanded, was rejected because it would be inconsistent with prior decisions on what it takes to waive a constitutional right. The Court then adopted a balancing test in which the conduct of both the prosecution and the defendant are weighed. The first factor of this test is the length of delay, which the Court seemed to treat mainly as a triggering mechanism. After a certain time (somewhere between six and eight months, the lower courts generally assume), the delay is presumptively prejudicial, so that further inquiry is necessary. The second factor is the reason for delay. The Court in Barker identified three categories: (1) a “deliberate attempt to delay the trial in order to hamper the defense,” which “should be weighted heavily against the government”; (2) a “more neutral reason such as negligence or overcrowded courts,” which “should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government”; and (3) “a valid reason such as a missing witness,” which “should serve to justify appropriate delay” (p. 531). The third factor is whether and when the defendant asserted his right to speedy trial. The final Barker factor is prejudice to any of the three interests noted above, which, as with the previous factors, is alone neither a necessary nor a sufficient condition to finding a deprivation of the right to speedy trial.

Public Trial.

The Sixth Amendment right to a public trial, which belongs to the defendant rather (p. 920) than the public, covers the entire trial and also certain pretrial proceedings, such as a suppression hearing, which bear a resemblance to a criminal trial. The right is adequately protected so long as there is freedom of access by the public to the trial; it is not necessary that everyone who wants to attend be accommodated. To show a violation of the right, the defendant need not show he was prejudiced in any specific way.

Exercise of the right serves as a restraint on possible abuse of judicial power, helps ensure testimonial trustworthiness, and sometimes causes material witnesses to come forward. But the right is not absolute, and thus those benefits must be balanced against interests that might justify closing the trial. A party seeking to close a trial “must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure” (Waller v. Georgia, 1984, p. 48).

Jury Trial.

The right to jury trial reflects “a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. … 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” (*Duncan v. Louisiana, 1968, p. 156). This right has to do with a jury’s determination of guilt or innocence and does not extend to the matter of sentencing.

The right does not apply to the trial of petty offenses, and any offense punishable by six months or less is presumably petty. Although the Court once viewed the traditional number of twelve jurors as a part of the right, six-person juries have been upheld on the ground that this number is “large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community” (*Williams v. Florida, 1970, p. 100). On similar reasoning the Court has held that the traditional requirement of unanimity is not a part of the constitutional right. Because of the cross-section requirement, there is a constitutional violation if “the jury pool is made up of only segments of the populace or if large, distinctive groups are excluded from the pool” (*Taylor v. Louisiana, 1975, p. 530). In Taylor, the right was violated because women were selected for jury service only when they filed a written declaration of a desire to serve (see petit juries).

Notice of the Accusation.

The Sixth Amendment also affords to a criminal defendant a right “to be informed of the nature and cause of the accusation” against him. This means that a defendant may not be convicted of one crime on an indictment charging a quite different crime. It also means that a defendant is entitled to a fair degree of specificity in the charge. Illustrative of a constitutionally defective charge is an indictment charging the defendants, in the language of the applicable statute, with having hindered certain citizens in their “free exercise and enjoyment … of the several rights and privileges granted and secured to them by the constitution.” The Court in United States v. *Cruikshank (1876) held that when a statute uses such generic terms the charge must be more particular, for example, in this case it must indicate which constitutional rights were allegedly hindered.

Confrontation of Opposing Witnesses.

A part of this Sixth Amendment right is that the defendant is entitled to be present at his trial. This right can be waived, but it takes more than absence to establish a waiver, as when the defendant “had been expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence” (Taylor v. United States, 1973, p. 19). The right can also be forfeited, as when a defendant engages in disruptive behavior.

Another aspect of this right of confrontation is that the defendant is entitled to cross-examine the witnesses against him. This right, like the right to be present, can be overcome only for compelling reasons. In Smith v. Illinois (1968), the Court held that a desire to maintain the confidential status of a police informant was insufficient reason to permit the informant to testify without revealing his true name and address. The right of confrontation also affords the defendant protection against the use of hearsay when the trier of fact would lack “a satisfactory basis for evaluating the truth of a prior statement” (California v. Green, 1970, p. 161).

Compulsory Process for Obtaining Favorable Witnesses.

One aspect of this right is that the defendant may testify on his own behalf. This right may be restricted to accommodate other legitimate interests in the criminal trial process, but those restrictions may not be arbitrary or disproportionate to the purposes they are designed to serve; thus a per se exclusion of a defendant’s hypnotically refreshed testimony is unconstitutional. Another aspect of the compulsory process right is that the defendant is entitled to *subpoena witnesses. This provides that the government may not undermine the defendant’s use of the subpoena authority, as when a trial judge drives a defense witness (p. 921) off the stand by unnecessarily strong warnings against perjury. Yet another part of the right is the right to put the witness on the stand, which is violated, for example, by a statutory provision making accomplices incompetent to testify for one another. But testimonial privileges, such as the privilege against *self-incrimination, are constitutional even though they might make a certain person unavailable as a defense witness.

Assistance of Counsel.

The Sixth Amendment right of a defendant “to have the assistance of counsel for his defense” quite obviously guarantees a right to representation by privately retained counsel. That it also includes a right to state-provided counsel to indigent defendants was for many years less than clear. The Court first recognized a due process right to appointed counsel in special circumstances, as in *Powell v. Alabama (1932)—the Scottsboro Boys case—where illiterate defendants were facing the death penalty. This special circumstances rule prevailed as to state cases until *Gideon v. Wainwright (1963), holding the Sixth Amendment right to counsel applicable to the states, where the Court reasoned that “in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him” (p. 344). Counsel need not be provided to indigent defendants in cases not resulting in imprisonment.

This right can be waived, but courts are typically quite demanding with respect to what will suffice to constitute a knowing and intelligent waiver. A court cannot simply resolve all doubts against waiver, for often the “waiver” may actually involve the invocation of another constitutional right. In Faretta v. California (1975), the Court interpreted the Sixth Amendment as making “counsel, like the other defense tools guaranteed, … an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally” (p. 820). Thus the Court held that a defendant also has a constitutional right to proceed *pro se, that is, to represent himself in a criminal trial.

What the defendant is entitled to under the Sixth Amendment is the effective assistance of counsel. This means, for one thing, that the government may not unreasonably restrict defense counsel’s performance, as when a trial judge ordered a defendant not to consult with his attorney during an overnight recess. It also means that the defendant is entitled to undivided loyalty from his lawyer; a defendant has shown a violation of this right if he establishes an actual conflict of interest that adversely affected his lawyer’s performance, without regard to whether the defendant was prejudiced thereby. Finally, it means that the defendant is entitled to have an attorney whose performance is not defective. To show a constitutional violation, it must appear that “in light of all the circumstances, the identified acts or omissions [of counsel] were outside the range of professionally competent assistance,” and “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (Strickland v. Washington, 1984, pp. 690, 694).

See also due process, procedural.

Joseph G. Cook, Constitutional Rights of the Accused, 2 vols. (1972). David Fellman, The Defendant’s Rights Today (1976). Wayne R. LaFave and Jerold H. Israel, Criminal Procedure (1984). Charles H. Whitebread and Christopher Slobogin, Criminal Procedure, 2d ed. (1986).

Wayne R. LaFave