The Sixth Amendment to the US Constitution

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Amendment VI

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 defence.

You have been accused of a crime. Your good name is sullied, your job is in jeopardy, your family has doubts about your innocence, and your best friends don’t know what to say to you.

You have spent time in jail while the charges were being filed. Now you are out on bail. What do you want more than anything else right now?

A Speedy and Public Trial

You want all this to be over. Either you will be exonerated or you will be destroyed by the findings of the court, but the stress of waiting to find out will take a toll on your health, your finances, and your relationships.

If you are innocent, you want everyone to know it. Whispered accusations can be more devastating than the truth because the gossip has no burden of proof.

The founders of our nation wanted us to use our resources wisely and treat our citizens fairly. This is best accomplished with efficient trials and open information. 

Without the guarantee of a speedy trial, a prosecutor could delay for years, destroying the defendant’s opportunity for self-defense as witnesses disappear and economic resources dwindle in the aftermath of a scandal.

The memory of the event will not be as sharp in the mind of a witness called years afterward. If the defendant stays in prison during a lengthy delay, the prison system bears the cost of feeding, housing, and protecting the accused. If the defendant is released on bail, the government must keep track of him and runs the risk of elopement. 

A speedy trial also ensures that an innocent person will not spend more time than necessary awaiting the trial in prison. Time served for a crime you did not commit cannot be returned to you after your acquittal.

A specific time limit has not been set for a speedy trial, but the judge must consider the reasons for the delay and their impact on the defendant’s ability to prepare his case. 

Public trials are an important safeguard for the defendant and the public. When the public has access to the proceedings, the witnesses are more likely to tell the truth because they know everyone can hear the testimony. The court itself will give more consideration to proper procedure when the public is watching carefully. 

The defendant can waive the right to a public trial, but the First Amendment guarantees freedom of the press, and that includes access to government proceedings.

The judge may make exceptions to protect children and rape victims. When information has been stolen, the trial may be closed to protect that information.

Trials may also be closed to protect the identity of undercover personnel. The safety of the court personnel may warrant a closed trial where organized crime is involved, and the judge may elect to protect the public from information that offends public standards of decency.

An Impartial Jury

As a culture, we tend to try cases in the court of public opinion. We hear it on the news or see it on television and take for granted that the facts as presented are correct and complete. That can cause us to conclude that the defendant was guilty based on the news coverage. 

In a criminal case, the accused has the right to help choose the jury so that people who may have come to premature conclusions on the case will not end up on the jury. The voir dire is the pretrial process by which the lawyers and the judge question the prospective jurors to determine their fitness to participate.

The defense or the prosecution may dismiss a juror without stating a reason in a peremptory challenge. In this case the reason could be that the accused simply does not think you will help his case. The limit on the number of jurors who may be dismissed in this manner varies by jurisdiction and other factors specific to the case.

The court may also dismiss jurors with a challenge for cause. In this case the reasoning must be explained to the judge, who will decide whether the cause for dismissal is sufficient.

Causes may include knowing someone involved in the case, openly stating a bias, or having been personally involved in a similar case. The lawyers may also petition to dismiss a juror who appears to be unable to serve on a jury.

The judge has the option of choosing to dismiss jurors at their own request. When I was called for jury duty the judge addressed a large group of prospective jurors, advising them of the general nature of the case and requesting that individuals volunteer any facts that would excuse them from service.

A line formed and each individual pitched a reason to be excused. In my case being four months pregnant and too nauseated to concentrate except when eating did not constitute just cause to be excluded. The judge did ask me to be discreet with my snacking.

I was asked about my general feelings about race, criminal punishment, and the use of weapons. The defendant had been accused of discharging his weapon into a crowded bar during a brawl. I had not heard about the case and had no opinions that concerned the prosecution or the defense, so I was seated as a juror. 

The location of the trial may have to change due to publicity. By default the case is tried where the crime is alleged to have occurred, but excluding all the prospective jurors who have heard about a well-publicized local case may prove impossible.

If the court believes the publicity in the area has affected public opinion so much that the entire pool of jurors cannot be impartial, a change of venue will improve the fairness of the trial. The defendant may waive the right to request a change of venue.

Our system of justice is based on the idea of fairness, and a fair trial requires an impartial jury. Justice must be served for the victim and for the accused.

The Nature and Cause of the Accusation

In order to defend yourself, you need to know what crime you are alleged to have committed. The accusatory instrument explains what the defendant is alleged to have done. 

Earlier in this series we discussed the freedom from double jeopardy, which is standing trial more than once for the same offense.

In colonial days the courts were not as interconnected as they are today, so the accused would have to do some legwork to prove that the crime for which he was standing trial had already been tried in a neighboring court.

With computerized records this is easier to ascertain, but still the case must be stated clearly and unambiguously. Should the defendant prove the accusatory instrument insufficient, the case could be dismissed.

The instrument of accusation provides both notice of indictment and details of the allegation to allow the accused to prepare his defense based on the prosecutor’s line of reasoning.

If the case goes before a grand jury, as discussed here in a prior post, all the essential elements of the allegation must be voted on by the grand jury.

Possible defects in the accusatory instrument include

  • an unconstitutional statute,
  • an accusation of an act that does not constitute a crime,
  • a document that recites the law without specifics about what the defendant is said to have done
  • a missing detail about the crime.

The defense moves to dismiss the charges when the instrument of accusation is questionable, and the judge decides whether the standard for dismissal has been met.

The instrument of accusation can substantiate the right of the accused to move for dismissal if it proves double jeopardy: the accused has already stood trial for the same crime.

The principle of a clearly stated accusation is crucial to the rights of every American because it keeps accusation from becoming an exercise in frivolity.

A case that should not be brought before the courts is a waste of time, money, and effort, and exacts an emotional toll. This important Sixth Amendment right keeps us from being harrassed by the law.

Confronted With the Witnesses

When you are accused of a crime, the consequences can be devastating. At a bare minimum you have the expense of engaging counsel, the time away from work, and the notoriety of the accusation.

At worst you can lose your property, your liberty, and even your life as a result of your conviction. It is only fair to know who has accused you and to observe the testimony. You have the right to be present at the trial and to cross-examine the witnesses. This serves three purposes.

  • The testimony of the witness under oath underscores the seriousness of the matter. It is easy to make an accusation in a conversation, but the gravity of the situation magnifies in the presence of a crowd of witnesses in a formal setting.
  • Putting the witness on the stand allows the accused to cross-examine the witness. A sworn statement is a starting place, but the minute details of the case need explication in court to determine whether the crime was committed and whether the accused is the one who committed the crime.
  • The appearance of the witness in the court further allows the jurors to observe the behavior of the witness and decide whether the evidence is credible.

When a witness repeats something that was said out of court, that evidence is called hearsay. Hearsay is regarded as no better than a rumor because the person who made the original statement is not present and under oath.

Exceptions apply when the hearsay establishes the feeling of the moment, such as an excited utterance at the moment of a startling event. This is because a startled response is likely to be a truthful one.

Documents such as business records are hearsay but can be admitted in court at the discretion of the judge, as can statements made to a medical provider and assessments about the reputation of the person being discussed.

Documents provide the background for the situation in which the witness alleges a crime took place. These can include birth records, marriage records, and prior court transcripts.

In the case of child abuse, the child’s testimony may be obtained by one-way closed-circuit television if the judge determines that the presence of the accused will additionally traumatize the child. In this case the accused sees the testimony but is not in physical proximity to the witness.

A declarant may be unavailable to testify, causing the evidence to be hearsay, if he has died, does not remember the event, is unable to be present, or refuses to testify.

An exception may be made if the witness has already testified and been cross-examined in a prior proceeding that covered the same information, such as a civil case on the same matter. Other exceptions may apply.

The defendant’s right to cross-examine may be limited once the subject has been exhausted. The witness must not be badgered or harrassed on the stand.

Can I get a Witness?

If you are on trial for a criminal offense, the government is trying to prove you did something wrong. The burden of proof is on them to prove beyond a reasonable doubt that you committed the offense, but you need to make the best case for your defense. To do this you may need to call witnesses. 

The right to call witnesses is the right to mount a defense, and a compulsory process puts the ability into the hands of the defendant to use a subpoena to compel a material witness to appear before the court. A witness who fails to appear in response to a subpoena may be punished for contempt.

Witnesses can be called by the prosecution and by the defense. The witness is first examined by the lawyer who called him or her. Witnesses may testify about the facts of the case, and sometimes they may give their opinions.

To make a conclusion, the witness must be an expert or uniquely qualified for the matter at hand. Witnesses may identify documents, photos, or other items. The examining attorney may not ask leading questions.

The witness may then be cross-examined by the opposing attorney, who may use leading questions to verify the truthfulness of the original testimony. 

The prosecution and the defense have the right to object to a question that does not meet legal standards and should do so before the witness answers the question. The judge will decide whether to sustain or overrule the objection.

Without the right to call a witness, you would be unable to defend yourself in court. Our nation’s founders made certain that the Sixth Amendment to the US Constitution preserved this right to safeguard justice for the American people.

The Right to An Attorney

You have watched enough TV shows to know your Miranda Rights: You have the right to remain silent. Anything you say can and will be held against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.

For more on the right to remain silent, see my prior post on the Fifth Amendment. The right to an attorney comes from the Sixth Amendment to the United States Constitution. You have the right to the help of a legal professional when you are being interrogated, and when you are defending your case in court.

Before we became a nation, the United States followed English common law, which allowed legal counsel for defendants in misdemeanor cases (minor crimes), but not for those accused of a felony (punishable by more than a year in prison).

In establishing our own laws after winning freedom from Britain, our founders endorsed the idea that we have the right to retain legal counsel when defending ourselves at the bench. At that time the defendant was expected to do that for himself with his own funds.

Interpretation of the law develops as judges decide cases and write opinions explaining their reasoning. Gradually the right to obtain counsel on your own became the right to have it provided if you could not afford it.

The complexity of the law and the judicial system make it so difficult to navigate that a person not specifically trained in legal matters is likely to fail to understand subtle points, and this could lead to an inadequate defense for a person who might be innocent of the stated charges.

A conflict of interest may cause your attorney of choice not to be approved by the court. As an example, your lawyer should not represent you and someone who is testifying against you. That lawyer would have difficulty arguing both sides of the case effectively.

Your lawyer must be a real lawyer who is a member of the bar.

You do have the right to waive counsel and defend yourself, but the judge may deny you this right if you are incompetent to do so or if your method of doing so is disruptive to the proceedings.

You can’t just get up and talk; you have to understand enough about what is going on to participate properly. The right to defend yourself at trial does not extend to appeals.

You have the right to counsel when participating in a police lineup because of the possibility that the witness could be led to a certain suspect based on how the lineup is presented. This does not apply to blood samples, photos, or handwriting samples because their interpretation can be reconstructed on the stand, whereas the lineup cannot be re-experienced in the courtroom. Your right to counsel extends to the post-conviction sentencing.

The time to learn your rights is now, before you find yourself in a situation where you need to defend yourself. If you are thinking of obtaining a Concealed Weapons Permit, you need to know your rights and responsibilities. Click here for my post on South Carolina’s laws relating to concealed carry.

Before I wrote this post, I beefed up my knowledge of the Sixth Amendment by going to the Cornell Law School site.

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Carla Pittman

Carla is a Speech Pathologist working in Home Health by day and a blogger by night. She married Chris in 2008 and is working to help him unite his love of guns with his passion for teaching others to carry safely. Her other impetus for blogging is to make Americans aware of their Constitutional rights, which are at risk in the current political environment.

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