The Sixth Amendment

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 [sic].

Like the Fifth Amendment, the Sixth Amendment is made up of a series of clauses, or individual phrases, and each defines a particular set of rights. Along with several of the Fifth Amendment clauses (see chapter five), the Sixth Amendment establishes specific rights for those accused of criminal actions by the government. For this reason, the Sixth Amendment is often referred to as the amendment that provides for a fair trial.

Under the Sixth Amendment, a persons who are accused of a crime by the government has the right to know what they have been accused of and why. Once accused, the defendants have the right to a lawyer. If the accused cannot afford a lawyer, the government must provide one.

A defendant also has the right to a trial by jury. A jury is a group of citizens who listen to evidence and decide whether the defendant is guilty or innocent. A person’s trial must start quickly and must be open to the public, and jury members cannot have made up their minds about the case before the trial starts.

Ratification Facts

Proposed:

Submitted by Congress to the states: September 25, 1789, along with the other nine amendments that comprise the Bill of Rights.

Ratification:

Ratified by the required three-fourths of states (eleven of fourteen): December 15, 1791. Declared to be part of the Constitution: December 15, 1791.

Ratifying States:

New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 24, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791 (amendment adopted).

A defendant also has the right to face and question the prosecution’s witnesses as well as to call witnesses of his or her own.

These rights are contained in specific clauses within the Sixth Amendment that ensure the following:

• The right to a speedy and public trial
• The right to trial by an impartial (unprejudiced) jury
• The right to know the nature and cause of an accusation
• The right to be confronted with the witnesses against him or her
• The right to compulsory process, which requires witnesses called by a defendant to appear in court
• The right to assistance of counsel, which allows defendants to obtain help in presenting their side of the case

Origins of the Sixth Amendment

Many of the rights embodied in the Sixth Amendment can be traced to English common law (legal traditions). Trial by jury, the assistance of counsel, and the right to a speedy trial all existed in some form in England before they were transported to England’s colonies in America.

English criminal trials before the twelfth century took place in forms that seem odd to modern observers. For instance, in “trial by battle” persons accused of a crime would fight their accusers to determine who “won” the case. These fights were “refereed” by robed judges. Another English tradition that predates jury trials was the “trial by ordeal.” In these trials defendants were forced to undergo potentially life-ending ordeals, such as walking across red-hot metal or being thrown in a river with hands and feet bound up, to decide their fates. Needless to say, even innocent defendants did not fare well in such trials.

A lopsided judicial system

By the middle of the twelfth century trials routinely called upon the oldest and most respected people from a defendant’s neighborhood to testify at his or her trial and even decide the outcome of the trial. Such groups of local citizen-witnesses were some of the earliest juries. Impartial jury verdicts, however, were still in short supply. In fact, the government often fined or punished jurors who found a defendant not guilty. This situation did not change until 1670, when public outrage over Bushell’s Case, in which a juror was jailed for finding a defendant innocent, at last put an end to such punishments.

Judicial rights in the American colonies

American colonists enjoyed many rights that their English counterparts did not. Each colony settled during the seventeenth century included safeguards of personal liberty in its written laws. West New Jersey established a set of fundamental laws in 1676 that guaranteed a public trial by a jury of twelve “good and lawful men.” Likewise, the Pennsylvania Frame of Government Charter (1683) included the right to have justice speedily administered by a jury of twelve men. And though paid lawyers were originally frowned upon in the colonies, as states began using professional prosecutors in court, it became common in the colonies for defendants to hire professional lawyers to plead their cases.

Judicial rights after the American Revolutionary War

War broke out between Great Britain and its American colonies in 1775, in large part because colonists felt that the British government had repeatedly violated their rights. By the time they won their independence from the British Empire in 1781, most of the thirteen original colonies had adopted bills of rights that included the right to trial by jury.

Under the Articles of Confederation, ratified in 1781, the newly independent states formed a weak union in which most governmental power was kept by the states. By 1788, however, the states adopted the United States Constitution (see Introduction), establishing a strong national government with power divided among an executive branch headed by the president, Congress (the legislative or law-making body of government), and the Supreme Court.

Madison writes and promotes amendments

The right to a jury trial was included in the new Constitution, which states that “the Trial of all Crimes, except in cases of impeachment, shall be by Jury.” But many people worried that the Constitution did not do enough to ensure the people’s rights and pushed for a national bill of rights to be added to the Constitution.

James Madison (1751–1836), a member of the House of Representatives from Virginia who later became the fourth president of the United States, spent much of his first session in Congress writing and promoting amendment proposals that eventually became the Bill of Rights (see Introduction). Among these proposals was a proposal for an amendment ensuring the rights of the accused in criminal trials, which was nearly identical to the final wording of the Sixth Amendment. After some minor changes, the amendment was passed by Congress in 1789 and adopted by the states in 1791 with the other Bill of Rights amendments.

Interpreting the Sixth Amendment

Much of the Sixth Amendment is open to broad interpretation, meaning the words can be understood different ways. For example, does the right to assistance of counsel mean that a defendant is allowed to have a lawyer’s assistance? Or does it guarantee defendants the right to an attorney even if they cannot afford one? Similar questions may be asked about many of the Sixth Amendment’s clauses.

Under the Constitution, the ultimate power to decide such questions belongs to the Supreme Court of the United States, the highest court in the land. The Supreme Court often makes decisions regarding questions and issues that arise in lower court cases. Over the years, the Supreme Court’s decisions in cases involving a defendant’s Sixth Amendment rights have defined and redefined exactly what those rights are.

Equal protection and due process

Depending on the crime and where it took place, criminal trials in the United States may be held at either the federal or state level. Most armed robberies, for instance, are state crimes and are tried in state courts. But bank robbery is a federal crime that is tried in federal court.

Originally, protections offered by the Bill of Rights amendments applied only at the federal level. Individual state governments were not required to abide by them. It was possible in a state trial, for instance, for a person to be denied the right to counsel or even to a jury trial. But with the ratification of the Fourteenth Amendment (see chapter fourteen) in 1868, that began to change. The Fourteenth Amendment’s equal protection and due process clauses established the idea that all citizens must be treated equally under federal and state laws. Over the years the Supreme Court has used the Fourteenth Amendment to require the states to comply with the Bill of Rights. This process, however, has been slow, and it was not until the 1960s that the Supreme Court began extending Sixth Amendment rights to defendants in state trials.

A speedy trial

Speedy justice was especially important in colonial times, when defendants were sometimes forced to travel all the way to England to stand trial. But even in the twenty-first century, a defendant may wish to have a case settled as soon as possible in order to clear his or her reputation. A speedy trial also ensures that a defendant is not kept in police custody any longer than necessary.

The definition of “speedy” is open to interpretation. The Supreme Court first addressed the speedy trial clause in Beavers v. Haubert (1905). In that case a defendant faced criminal charges in New York and in the District of Columbia, and the New York court allowed the District of Columbia court to hold its trial first. The defendant argued that his right to a speedy trial in New York was being obstructed. The Supreme Court held that each case must be judged on its own circumstances. Since the delay in this case was caused by another trial, the Court ruled that the public’s right to try the defendant for both crimes outweighed the defendant’s right to a swift trial in New York.

The Court considers four factors when deciding if a defendant’s right to a swift trial has been violated:

• The length of the delay: If the delay is found to be sufficiently long, the court will then consider the other factors.
• The reason for the delay: If there is a good reason for the delay, the court may decide that a speedy trial was not possible.
• The defendant’s request for a swift trial: If a defendant agrees to or causes delays in the trial, then the right to a swift trial is not violated.
• The possible prejudice caused by the delay: Was the defendant hurt by the delay? If the court finds that a delay did not cause the defendant harm, a trial may be allowed to proceed.

If it is determined that the government has unnecessarily delayed the case for an unreasonable amount of time, the charges against a defendant must be dropped. In 1967 the Supreme Court applied the speedy trial clause of the Sixth Amendment to the states in Klopfer v. North Carolina. In that case a defendant in North Carolina was accused of a criminal trespass. When a jury in the trial was unable to decide the case, the government prosecutor dismissed the charge but retained the right to charge the defendant again at any time.

The defendant argued that this violated his right to a speedy trial. The Supreme Court agreed, finding that keeping the defendant under a cloud of suspicion for an indefinite period of time violated the Sixth Amendment. By contrast, the Court found in Barker v. Wingo (1972) that a defendant had given up his right to a speedy trial because he had objected to the government’s first eleven requests to delay his trial.

United States v. McDonald (1982) involved a highly publicized case of an Army doctor charged with murdering his wife and two daughters. The army dismissed the charges in 1970, but the case was later taken up by the U.S. Department of Justice, which continued to investigate the matter. In 1975 the defendant was indicted and later convicted of the crimes. After the conviction, the defendant argued that his right to a speedy trial had been violated. However, the Supreme Court ruled that since the defendant “was not under arrest, not in custody” and had not been formally indicted, he was “legally and constitutionally” in the same position as if no charges had been made up to that point. In other words, his right to a speedy trial did not begin until his indictment in 1975.

In Doggett v. United States (1992), the Supreme Court found that a defendant’s speedy trial rights were violated when there was more than an eight-year gap between his indictment and his subsequent prosecution. The Court focused on the “extraordinary 81/2-year lag between his indictment and arrest” and the fact that “the government was to blame for the delay.”

A public trial

By guaranteeing the right to a public trial, in which the public is allowed to attend court proceedings against an individual, the Sixth Amendment is designed to increase public confidence in the justice system. The Sixth Amendment generally prohibits closed justice, like the infamous Star Chamber in sixteenth-century England in which defendants were tried in secret. In the case of In re Oliver (1948), the Supreme Court found that the right to a public trial is “a safeguard against any attempt to employ our courts as instruments of persecution”, that is, it serves as a protection against the government abusing its judicial power.

There are, nonetheless, limits on the right to a public trial. Courts may temporarily exclude the public from a trial when a witness might be embarrassed by the public’s presence, or in order to protect the identity of an undercover agent. A court may also limit the number of spectators or throw out spectators who are disruptive.

Still, courts cannot abuse their power to exclude spectators. In Waller v. Georgia, a Georgia court had agreed to close a part of a trial to protect the privacy of one of the witnesses. However, the trial remained closed to the public for seven days, during which time less than three hours were spent on issues that involved the witness’s privacy. The Supreme Court ruled that the closed trial violated the defendant’s Sixth Amendment right to a public trial, finding that a “closure must be no broader than necessary.”

Sometimes criminal defendants have argued that their Sixth Amendment right to a public trial has been violated by the exclusion of their relatives from their trials. Most of the time reviewing federal courts have rejected such claims.

The Jury System

The main purpose of a jury trial is to prevent governmental abuse by placing ordinary citizens between the government and the accused. The Supreme Court put it this way: “The purpose of trial by jury is to prevent oppression by the Government by providing a safeguard against” the abuse of power by judges or prosecutors. By giving a relatively large group of people from the community the final decision-making power in a trial, jury trials help prevent judges or prosecutors from abusing their power.

The original Constitution required that all criminal cases be tried by a jury. But the Sixth Amendment’s jury clause goes farther, requiring trial by an impartial jury. In order to ensure a fair trial, it is important that a jury is not biased or prejudiced against a defendant before the trial begins. In other words, jurors should not have made up their minds about a case before hearing the facts.

The Size of a Jury

In English common law, a jury was composed of twelve people. This number was reaffirmed by the Supreme Court in Patton v. United States (1930). In that case the Court ruled that trial by jury, as guaranteed in the Constitution, requires “the essential elements as they were recognized in this country and England when the Constitution was adopted.” Among these elements were stipulations that a jury consist of twelve men and that a jury’s verdict should be unanimous (that is, all twelve jurors must agree).

In 1970, however, the Supreme Court overruled itself in Williams v. Florida. In Williams the Court called the twelve-person jury a “historical accident” and ruled that six members could serve the same function as twelve for state criminal trials. What was more important than the number of jurors, the Court said, was whether the jury reflected “a common sense judgment” based on the participation of a broad segment of the community. The Court ruled that “The performance of this role is not a function of the particular number” of jurors who sit on the jury.

Though the Supreme Court ruled that six-member juries are legitimate, in Ballew v. Georgia (1978) the Court found that “the purpose and functioning of the jury in a criminal trial is seriously impaired … by a reduction in size to below six members.”

The Court threw out another of the “essential elements” outlined in Patton in a 1972 ruling. In the case of Apodaca v. Oregon (1972), the justices held that the Constitution does not require a unanimous verdict in state criminal trials; they added that the essential element of a jury trial is to put the “common sense judgement” of a group of citizens between “the accused and his accuser.” This purpose, according to the Court, does not require a unanimous verdict. In Burch v. Louisiana (1979), however, the Supreme Court ruled that when a six-person jury is used, a unanimous verdict is required to convict a defendant.

Despite the Supreme Court’s rulings that neither the unanimous verdict nor the twelve-person jury is required by the Constitution, only a handful of states have done away with either of these centuries-old common law traditions.

Picking a jury

Making sure a jury is impartial is not easy. At the start of a trial, a large group of potential jurors is called together by the court. From this large group, the defense and prosecution lawyers choose the final jury. During the selection process, attorneys from both sides may ask the group members questions and may then ask the judge to exclude certain members from the jury for various reasons.

But a court may put limits on who is excluded and for what reasons. In Connors v. United States (1895), the defendant essentially asked potential jurors what political party they belonged to. The judge in the case stopped this line of questioning, saying that such information was not relevant to the case. The Supreme Court agreed with the trial judge, ruling that a juror’s “political convictions” would not necessarily prevent him or her from seeking a fair verdict.

The selection process, however, is different for every trial, and judges and attorneys may have to take any number of circumstances into consideration while attempting to select an impartial jury.

In the news.

Newspapers and other media (such as television and radio) often cover criminal cases before they come to trial, and it is possible for negative pretrial publicity to influence potential jurors against a defendant before a trial begins.

The treason case of Aaron Burr (1756–1836) in 1807 was one of the first cases in the United States to be widely covered in the press. Burr, a former U.S. vice president, was accused of plotting to take over Texas and establish the area as an independent nation. The defense claimed that the Sixth Amendment guaranteed Burr a trial by a jury “perfectly indifferent and free from prejudice”—in other words, a jury made up of jurors who had never heard of the case. Of course, this would have been nearly impossible with such a high-profile case. The Supreme Court ruled that such a perfect standard was unobtainable and that as long as the jurors were “open to a fair consideration,” they could be considered impartial. In some instances, however, jurors who have strong opinions about a defendant based on media coverage of a case may be excluded from the jury.

Disqualifications for potential jurors.

Until 1936, the Supreme Court held that government employees could not be impartial jurors in federal criminal cases, since they worked for the same employer as the prosecution. But in United States v. Wood (1936), the Court ruled that there was no historical basis for a ban on government employees as jurors in criminal cases. Since that ruling, government employees have not been automatically excluded from serving as jurors.

Excluding prejudice—sometimes.

Depending on the circumstances of a case, a juror’s prejudice against a certain race, religion, or nationality may be used to exclude him or her from a jury. But it must first be shown that such prejudice is relevant to the case.

For example, in Ham v. South Carolina, (1973), a well-known black civil rights activist claimed that he had been framed on drug charges because of his civil rights work. At his trial, Ham had not been allowed to ask potential jurors about their racial prejudice, and the Supreme Court found that this kept him from receiving a fair trial.

In the 1976 Ristaino v. Ross case, however, the Court held that a defendant is not entitled to inquire specifically about racial prejudice during jury selection just because a case involves a conflict between individuals of different race or ethnic origin. The Court pointed out that the Ham case was special because “racial issues … were inextricably bound up” in that trial.

A cross-section of the community.

In Taylor v. Louisiana (1975), the Supreme Court ruled that a jury system in Louisiana, which excluded women from serving on juries, deprived a defendant of his Sixth Amendment right to an impartial jury. According to the Court, an impartial jury can only be achieved if it is taken from a pool that is representative of the entire community and does not exclude certain groups in the community. This cross-section requirement does not mean that the final jury must mirror the community. It simply means that no one group, whether it be a certain race or gender, can be systematically excluded from the pool of potential jurors.

In Miller-El v. Dretke (2005), the U.S. Supreme Court ruled that a defendant’s Sixth Amendment right to an impartial jury was violated when a Texas court permitted prosecutors to strike ten of eleven African Americans from the jury pool.

Death penalty views.

Some crimes may be punished by death. These capital crimes require jurors not only to decide a defendant’s guilt but also to decide whether to impose the death penalty. In death penalty cases, the Supreme Court has ruled that the prosecution may exclude potential jurors if they admit they are strongly opposed to any use of the death penalty. Similarly, the defense may excuse potential jurors who say they would automatically impose the death penalty if the defendant were convicted.

Another Line of Sixth Amendment Cases Involving Right to Jury

The Supreme Court in the 1990s, under Chief Justice William Rehnquist, ruled that the Sixth Amendment called into question a variety of state and federal sentencing laws. For example, in Apprendi v. New Jersey (2000), the Supreme Court struck down a New Jersey law that enabled judges to add years to a defendant’s sentence if he selected his victim based on his or her race or religion. This so-called penalty enhancement law sought to increase sentences for hate crimes. The Supreme Court determined this law violated the Sixth Amendment because it took fact-finding power away from the jury and gave it to the judge. “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and be proved beyond a reasonable doubt,” wrote Justice John Paul Stevens for the Court.

Then, in Blakely v. Washington (2004), the Supreme Court struck down a state sentencing law because it also enabled judges to increase sentences without proving additional facts beyond a reasonable doubt to juries. The Court also called into question the federal sentencing guidelines in United States v. Booker (2005). In all of these cases, the Court feared that the criminal justice system and the Sixth Amendment require that a jury determine whether the prosecutors have proven the defendant’s guilt beyond a reasonable doubt rather than just have a judge review facts and impose increased sentences.

Accusation and Confrontation

The Sixth Amendment requires the government to inform a defendant of the “nature and cause of the accusation” against him or her and allow the defendant to “to be confronted with the witnesses against him.” Both of these clauses are intended to keep the government from using “secret charges” or secret witnesses to prosecute a defendant and help the accused prepare his or her defense.

Informing a person of the nature and cause of an accusation means telling a defendant what he or she is accused of and why. For the most part, defendants are informed of the charges against them when they are indicted (formally charged by a grand jury or a hearing). The Supreme Court ruled in Cruikshank v. United States (1875) that simply informing a defendant that he or she is accused of “armed robbery” or “kidnapping” is not sufficient. An indictment must also provide details—such as where and when the crime took place and what evidence the prosecutor is basing the charges on—to put the defendant on “proper notice.”

In Rosen v. United States (1896), the Supreme Court ruled that an indictment must contain a detailed enough description of the charges to enable a defendant to “make his defense.” Such a specific description of the crime also provides defendants with a tool to avoid later prosecutions for the same crime (see “The Double Jeopardy Clause” section in chapter five).

The right to cross-examine

The right of an accused to be “confronted with the witnesses against him” gives a defendant the right to be present during his or her trial and to cross-examine (question) the witnesses called against him or her. This clause prevents the government from simply asking questions that help convict the defendant while ignoring questions that might help exonerate (to clear of blame) him or her.

Along with the compulsory process clause (see section below), which allows the defendant to call his or her own witnesses, the confrontation clause provides the defendant with an important tool to counter the prosecution’s charges.

The right of confrontation also gives the defendant the right to be present at nearly all points in the trial process, beginning with jury selection until the verdict is announced. If a defendant cannot understand English, the court must find a way (such as providing a professional translator) for the defendant to understand and cross-examine witnesses.

Witness absence.

In the case of Motes v. United States (1900), the government was responsible for the absence of one of its own witnesses. Since the witness was unavailable, the government wanted to introduce a transcript (written copy) of the witness’s testimony from a pretrial hearing.

The Supreme Court ruled that since the witness’s absence was the government’s fault, and “was not attributable to the actions or influence of the accused,” the testimony could not be used, since the defendant did not have the opportunity to cross-examine.

Witness death.

A witness’s absence does not always violate the defendant’s right to confrontation. In the case of Mattox v. United States (1895), the Supreme Court allowed a transcript of testimony from one trial to be used in another trial of the same defendant. Two witnesses died between the accused person’s first and second trial. Partly because the defendant had been given the opportunity to cross-examine the witnesses in the earlier trial, the Supreme Court ruled that the transcripts of testimony from the now deceased witnesses could be used in the second one.

Removing the defendant from court.

Defendant’s may also forfeit (lose) their right to confrontation. In Illinois v. Allen (1970), the Supreme Court ruled that a trial judge had the right to remove a defendant from his own trial for repeatedly disrupting the courtroom. The Court ruled that the removal was reasonable and that the defendant could regain his right to confront his accusers simply by agreeing not to disrupt the proceedings.

Protecting minors.

Protecting minor victims of sexual abuse from having to face an alleged attacker presents a challenge to the confrontation clause. In Coy v. Iowa (1988), the Court decided that an Iowa law that allowed a child to testify behind a screen, blocking the view of the defendant, was unconstitutional. In another instance (Maryland v. Craig [1990]) , however, the Court ruled that a Maryland law that allowed a child to testify in a separate room—while allowing the defendant to see and cross-examine the witness via video cameras—was perfectly acceptable.

In Crawford v. Washington (2004), the Supreme Court ruled that a defendant’s confrontation clause rights were violated when the state admitted statements his wife made to the police. Prosecutors charged Michael Crawford with assault after he stabbed a man who had allegedly sexually assaulted his wife. Mrs. Crawford refused to testify against her husband, asserting a state law preventing the state from forcing spouses to testify against each other. However, the prosecution sought to admit some of her initial statements to police after her husband’s attack on the man. The Court ruled that the confrontation clause prevented the state from using the statements of the defendant’s wife at trial.

The compulsory process clause

Compulsory process gives the defendant the right to use subpoenas to bring witnesses to testify during the trial, just as the prosecution does. A subpoena is a court order commanding a person to appear in court. Compulsory process may be used to call anyone to testify or to produce certain documents, if the defendant can show that the witness or evidence is relevant to the case.

Limits to the compulsory process.

If a trial judge believes a defendant’s request for a witness is petty or unnecessary, the court may refuse to call the witness. Also, if the defense subpoenas a witness and the court makes a legitimate effort to bring the witness to court with no results, the Supreme Court has ruled that the accused’s rights are not violated by the absence of that witness.

Furthermore, the Fifth Amendment right to refuse to testify against oneself (see “The Self-incrimination Clause” section in chapter five) is not overruled by compulsory process; therefore, a defendant cannot force witnesses to testify against themselves.

The call to testify.

Despite such limits, compulsory process can be used to call almost anyone to testify or provide evidence, if the evidence is relevant to the case. In United States v. Nixon (1974), for instance, the Supreme Court ruled that President Richard M. Nixon’s executive privilege (presidential rights) were overruled by compulsory process.

During a trial involving some of the president’s staff members and political supporters, the prosecutor subpoenaed certain tapes and documents from the president. President Nixon (1913–1994; served 1969–74 ) moved to stop the subpoena. But the Court ruled that the president must produce the evidence, saying that the “constitutional need” for all relevant evidence in a case to be weighed made it necessary that “compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” In other words, even the president of the United States cannot legally deny the Court the evidence it requests in a subpoena.

In a 1987 case, Rock v. Arkansas, the Supreme Court determined that the compulsory process clause also guaranteed a defendant’s right to testify on his or her own behalf. In the case the defendant had been charged with shooting her husband. After undergoing hypnosis, the defendant remembered details that indicated the gun had misfired.

An Arkansas law prohibited such “hypnotically refreshed” testimony from being used in court on the grounds that such testimony could be unreliable. But the Supreme Court ruled that the law violated the defendant’s Sixth Amendment right to call witnesses, in this case from calling herself. The Court ruled that it was up to the prosecution to prove whether the “hypnotically refreshed” testimony was unreliable.

As a result of this case, the Sixth Amendment is understood to guarantee a defendant the right to testify in his or her own trial. (The Fifth Amendment’s self-incrimination clause, by contrast, allows defendants to refuse to testify in their own trials.)

The Right to the Assistance of Counsel

The right to the assistance of counsel means that a defendant has a right to effective legal assistance from someone well-versed in the law, such as a lawyer. The right to counsel far surpasses any other constitutional right of the accused. While the right to counsel was originally understood simply to mean that a defendant had the right to hire a lawyer, the Supreme Court has expanded the right to counsel considerably.

Providing lawyers for indigent defendants

In Powell v. Alabama (1932), Powell was one of nine young black defendants, called the Scottsboro Boys, charged with raping two white women on a train that was going through Scottsboro, Alabama. The defendants could not read, had no friends or relatives in the area, and were faced with such negative publicity that the militia was called in to maintain public order.

On the morning of the trial, the judge appointed two local lawyers who reluctantly represented the nine defendants, despite having no time to prepare their case. Trials for each defendant took just one day, and all the defendants were convicted and sentenced to death.

The Supreme Court overturned the convictions in the “Scottsboro trial,” ruling that the assistance of counsel is a “fundamental” part of a defendant’s right to a fair trial. The Court took the defendant’s illiteracy into account as well, ruling that in this case the defendants could not have defended themselves.

The Court also said that states must provide assistance of counsel to all indigent defendants (defendants who cannot afford to hire counsel) charged with a capital crime. Furthermore, the Court ruled that the right to counsel necessarily means “effective” counsel,, that is, lawyers who actually help the defendant. The ruling was also used to ensure that illiterate or “feeble-minded” defendants also are provided with attorneys, since they cannot effectively defend themselves.

In Johnson v. Zerbst (1938), the Court extended the Powell ruling to guarantee a defendant’s right to receive counsel in all federal criminal cases. Additionally, in the historic 1963 case of Gideon v. Wainwright, the Supreme Court used the Fourteenth Amendment (see chapter fourteen) to extend the assistance of counsel to all felony cases at the state level as well. In that case, the Court ruled that it was the government’s duty to provide a lawyer to any defendant who cannot otherwise afford one (see “Gideon v. Wainwright” box).

Gideon v. Wainwright

In 1961 Clarence Earl Gideon was arrested in Panama City, Florida. Fifty-year old Gideon was charged with breaking into the Bay Harbor Poolroom with the intent to commit burglary. He had only an eighth-grade education and was also quite poor. While waiting for his trial Gideon researched the law and became convinced that the Sixth Amendment right to have “the assistance of counsel” combined with the Fourteenth Amendment’s “due process” clause (see chapter fourteen) guaranteed him the right to a court-appointed attorney.

Florida law only required the state to provide an attorney to poor defendants in capital cases. (Capital cases involve a state’s most serious crimes, such as murder or rape.) Gideon was not given a lawyer and was convicted of breaking into the poolroom.

From prison, Gideon argued that he was wrongly imprisoned by the Florida Department of Corrections, since he had not had assistance of counsel at his trial. Gideon, who still had no legal presentation, petitioned the Supreme Court of the United States to consider his case. Upon receiving the petition, written in pencil on prison paper, the Court appointed attorney Abe Fortas—who later became a U.S. Supreme Court Justice—to argue Gideon’s case.

In Gideon v. Wainwright (Wainwright, the director of Florida’s Department of Corrections, was named as the defendant in the case), Fortas argued that “no man, no matter how intelligent” can effectively defend himself. He pointed out that even experienced lawyers typically hire attorneys to defend them in criminal cases. Clearly, ordinary defendants with no legal training could not be expected to defend themselves in a trial.

Fortas then argued that the Fourteenth Amendment’s guarantee of equal protection under the law meant that every defendant, no matter how poor, should have the same right to assistance of counsel that wealthy defendants had. The Court agreed, ruling that “any person [brought] into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” The Court added that the fact that the government hires lawyers to prosecute and that defendants with enough money hire lawyers to defend themselves was proof that having a lawyer in a criminal trial is considered a necessity, not a luxury.

The Supreme Court’s decision did not only affect future cases. The decision was also deemed retroactive; that is, it applied to cases that had already been tried. In the following years, thousands of cases were reopened, and prisoners who had been convicted without the aid of a lawyer were released or given new trials.

Gideon himself was found not guilty of the original charges against him in a later trial. As he put it, the only difference between his first and second trials was that in the second “I had an attorney.” Thanks to Gideon’s determined efforts to have his case heard, defendants of all economic backgrounds could say the same thing.

The right to effective counsel

As noted in Powell v. Alabama, the mere presence of a lawyer does not ensure a defendant’s right to assistance of counsel. The assistance must also be effective; that is, the lawyer must actually help the defendant.

Deciding when a lawyer is effective is difficult, since there are many levels of effectiveness. In Strickland v. Washington (1984), the Supreme Court adopted the “reasonably competent defense counsel” standard to determine whether a lawyer had provided “effective” counsel. Under this standard, if a convicted defendant can prove that his or her lawyer made errors so serious—“and so affects the trial that there is a ‘reasonable probability’ that, absent counsel’s error, the outcome would have been different”—the conviction can be thrown out. However, smaller errors by a lawyer do not automatically give the defendant the right to another trial.

Some mistakes by attorneys that have led to new trials for the defendant include the lawyer’s failure to effectively question a witness, the failure to object to (argue against) inadmissible evidence, and the failure to raise certain defenses, such as self-defense. For example, the Supreme Court in Rompilla v. Beard (2005) ruled that two public defenders provided ineffective assistance of counsel to a capital defendant when they failed to review the defendant’s files on his past convictions and his school records. If the attorneys had reviewed his prior conviction files, they would have discovered mitigating evidence that may have caused the jury to sentence the defendant to life imprisonment instead of death. The Court found this to be a case of truly ineffective assistance of counsel.

Empowering the Defendant

Like the other Bill of Rights amendments, the Sixth Amendment was created to limit the power of government. The government can charge a defendant, but it must inform the defendant of the charges and try the defendant in a timely fashion in a public trial. The government may use professional prosecutors to argue its side of the case, but defendants may also have legal counsel. The government can call witnesses to testify, but compulsory process gives defendants the right to call their own witnesses. Moreover, while the government assists in the selection of a jury, the Sixth Amendment requires the government to take steps to ensure that jurors are not biased against the defendant before the case begins.

Taken together, the various clauses of the Sixth Amendment serve as a counterbalance to government power, helping to ensure that trials by jury, like those fought in medieval “trials by battle,” take place between equally empowered entities. The Sixth Amendment seeks to ensure that criminal defendants receive fair trials.

FOR MORE INFORMATION

Books

Abramson, Jeffery. We, the Jury: The Jury System and the Ideal of Democracy. Cambridge, MA: Harvard University Press, 2006.

Burnett, D. Graham. A Trial by Jury. New York: Vintage, 2002.

Carter, Dan T. Scottsboro: A Tragedy of the American South. Baton Rouge, LA: Louisiana State University Press, 1979, reprint 2007.

Dwyer, William L. In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy. New York: Thomas Dunne Books, 2004.

Geller, Laurence H., and Peter Hemenway. Last Chance for Justice: The Juror’s Lonely Quest. Dallas, TX: NCDS Press, 1997.

Jonakait, Randolph N. The American Jury System. New Haven, CT: Yale University Press, 2006.

Starr, V. Hale, and Mark McCormick. Jury Selection. New York: Aspen Law and Business, 2000.

Periodicals

Abel, Laura K. “A Right to Counsel in Civil Cases: Lessons From Gideon v. Wainwright.” Clearinghouse Review (July-August 2006): 271–280.

Allen, Sarah Livingston. “Faretta: Self-Representation, or Legal-Misrepresentation?”Iowa Law Review (April 2005): 1553.

Douglass, John G. “Confronting Death: Sixth Amendment Rights at Capital Sentencing.” Columbia Law Review (Nov 2005): 1967–2028.

Ignatoff, Mitchell. “Tale of Two Standards in DWI Cases.” New Jersey Law Journal (January 1, 2007).

Mauro, Tony. “Court Affirms Right to Counsel of Choice. ”New Jersey Law Journal (July 3, 2006).

SOURCES

Books

Cogan, Neil H., ed. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins. New York: Oxford University Press, 1997.

Cook, Joseph G. Constitutional Rights of the Accused. 3rd ed. St. Paul, MN: West Group, 1996.

Encyclopedia of World Biography. Detroit, MI: Gale Research, 1998.

Garcia, Alfredo. The Sixth Amendment in Modern American Jurisprudence. New York: Greenwood Press, 1992.

Heller, Francis H. The Sixth Amendment to the Constitution of the United States: A Study in Constitutional Development. New York: Greenwood Press, 1951., reprint 1969.

Kurland, Philip B., and Ralph Lerner, eds. The Founders’ Constitution. Chicago: University of Chicago Press, 1987.

Lehman, Jeffrey, and Shirelle Phelps, eds. West’s Encyclopedia of American Law. Farmington Hills, MI: Thomson Gale, 2004.

Rutland, Robert Allen. The Birth of the Bill of Rights: 1776—1791. Rev. ed. Boston: Northeastern University Press, 1991.

Witt, Elder. The Supreme Court and Individual Rights. 2nd ed. Washington, DC: Congressional Quarterly, 1988.

Web Sites

Lady Liberty’s Constitutional Clearinghouse on the Sixth Amendment. (accessed July 24, 2007).

Sentencing Law and Policy, (accessed July 24, 2007).