SIXTH AMENDMENT

The Sixth Amendment to the U.S. Constitution 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.

The Sixth Amendment to the U.S. Constitution affords criminal defendants seven discrete personal liberties: (1) the right to a speedy trial; (2) the right to a public trial; (3) the right to an impartial jury; (4) the right to be informed of pending charges; (5) the right to confront and to cross-examine adverse witnesses; (6) the right to compel favorable witnesses to testify at trial through the subpoena power of the judiciary; and (7) the right to legal counsel. Ratified in 1791, the Sixth Amendment originally applied only to criminal actions brought by the federal government.

Over the past century, all of the protections guaranteed by the Sixth Amendment have been made applicable to the state governments through the doctrine of selective incorporation. Under this doctrine, the Due Process and equal protection Clauses of the fourteenth amendment require each state to recognize certain fundamental liberties that are enumerated in the bill of rights because such liberties are deemed essential to the concepts of freedom and equality. Together with the supremacy clause of Article VI, the Fourteenth Amendment prohibits any state from providing less protection for a right conferred by the Sixth Amendment than is provided under the federal Constitution.

Speedy Trial

The right to a speedy trial traces its roots to twelfth-century England, when the Assize of Clarendon declared that justice must be provided to robbers, murderers, and thieves "speedily enough." The Speedy Trial Clause was designed by the Founding Fathers to prevent defendants from languishing in jail for an indefinite period before trial, to minimize the time in which a defendant's life is disrupted and burdened by the anxiety and scrutiny accompanying public criminal proceedings, and to reduce the chances that a prolonged delay before trial will impair the ability of the accused to prepare a defense. The longer the commencement of a trial is postponed, courts have observed, the more likely it is that witnesses will disappear, that evidence will be lost or destroyed, and that memories will fade.

A person's right to a speedy trial arises only after the government has arrested, indicted, or otherwise formally accused the person of a crime. Before the point of formal accusation, the government is under no Sixth Amendment obligation to discover, investigate, accuse, or prosecute a particular defendant within a certain amount of time. The Speedy Trial Clause is not implicated in post-trial criminal proceedings such as probation and parole hearings. Nor may a person raise a speedy-trial claim after the government has dropped criminal charges, even if the government refiles those charges at a much later date. However, the government must comply with the fairness requirements of the Due Process Clause during each juncture of a criminal proceeding.

The U.S. Supreme Court has declined to draw a bright line separating permissible pretrial delays from delays that are impermissibly excessive. Instead, the Court has developed a balancing test in which length of delay is just one factor to consider when evaluating the merits of a speedy-trial claim. The other three factors that a court must consider are the reason for delay, the severity of prejudice, or injury, suffered by the defendant from delay, and the stage during the criminal proceedings in which the defendant asserted the right to a speedy trial. Defendants who fail to assert this right early in a criminal proceeding, or who acquiesce in the face of protracted pretrial delays, typically lose their speedy-trial claims.

Defendants whose own actions lengthen the pretrial phase normally forfeit their rights under the Speedy Trial Clause as well. For example, defendants who frivolously inundate a court with pretrial motions are treated as having waived their rights to a speedy trial (United States v. Lindsey, 47 F.3d 440 [D.C. Cir. 1995]). In such situations, defendants are not allowed to benefit from their own misconduct. On the other hand, delays that are attributable to the government, such as those due to prosecutorial negligence in misplacing a defendant's file, will violate the Speedy Trial Clause (United States v. Shell, 974 F.2d 1035 [9th Cir. 1992]).

A delay of at least one year in bringing a defendant to trial following arrest will trigger a presumption that the Sixth Amendment has been violated, with the level of judicial scrutiny increasing in direct proportion to the length of delay (United States v. Gutierrez, 891 F. Supp. 97 [E.D.N.Y. 1995]). The government may overcome this presumption by offering a "plausible reason" for the delay (United States v. Thomas, 55 F.3d 144 [4th Cir. 1995]). Courts generally will condone longer delays when the prosecution has requested additional time to prepare for a complex or difficult case. When prosecutors have offered only implausible reasons for delay, courts traditionally have dismissed the indictment, overturned the conviction, or vacated the sentence, depending on the remedy requested by the defendant.

Public Trial

The right to a public trial is another ancient liberty that Americans have inherited from Anglo-Saxon jurisprudence. During the seventeenth century, when the English Court of Oyer and Terminer attempted to exclude members of the public from a criminal proceeding that the Crown had deemed to be sensitive, defendant John Lilburn successfully argued that immemorial usage and British common law entitled him to a trial in open court where spectators are admitted. The Founding Fathers believed that public criminal proceedings would operate as a check against malevolent prosecutions, corrupt or malleable judges, and perjurious witnesses. The public nature of criminal proceedings also aids the fact-finding mission of the judiciary by encouraging citizens to come forward with relevant information, whether inculpatory or exculpatory.

Under the Public Trial Clause, friends and relatives of a defendant must be initially permitted to attend trial. However, the right to a public trial is not absolute, and parents, spouses, and children will be excluded if they disrupt the proceedings (Cosentino v. Kelly, 926 F. Supp. 391 [S.D.N.Y. 1996]). Toddlers and infants, ranging from one month to two years in age, may be summarily excluded from a courtroom consistent with the Sixth Amendment, even if the judge fails to articulate a reason for doing so (United States v. Short, 36 M.J. 802 [A.C.M.R. 1993]). Children in this age group are too young to understand legal proceedings, are easily agitated, and present a substantial risk of hindering a trial with distractions.

The Sixth Amendment right to a public trial is personal to the defendant and may not be asserted by the media or the public in general. However, both the public and media have a qualified first amendment right to attend criminal proceedings. The First Amendment does not accommodate everyone who wants to attend a particular proceeding. Nor does the First Amendment require courts to televise any given legal proceeding. Oral arguments before the U.S. Supreme Court, for example, have never been televised.

Courtrooms are areas of finite space and limited seating in which judges diligently attempt to maintain decorum. In cases that generate tremendous public interest, courts sometimes create lottery systems that randomly assign citizens a seat in the courtroom for each day of trial. A separate lottery may be established for the purpose of determining which members of the media are permitted access to the courtroom on a given day, although local and national newspapers and television stations may be given a permanent courtroom seat. Members of the media and public who are excluded from attending trial on a given day are sometimes provided admission to an audio room where they can listen to the proceedings.

In rare cases, criminal proceedings will be closed to all members of the media and the public. However, a compelling reason must be offered before a court will follow this course. For example, when the First Amendment rights of the media to attend a criminal trial collide with a defendant's Sixth Amendment right to a fair trial, the defendant's Sixth Amendment right takes precedence, and the legal proceeding may be closed (In re Globe Newspaper, 729 F.2d 47 [1st Cir. 1984]).

Criminal proceedings also have been conducted in private when the complaining witness is a child who is young and immature and is being asked to testify about an emotionally charged issue such as sexual abuse (Fayer-weather v. Moran, 749 F. Supp. 43 [D.R.I. 1990]). If the court determines that only one stage of a legal proceeding will be jeopardized by the presence of the public or the media, then only that stage should be conducted in private (Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 [1984]). For example, if a witness is expected to testify about classified government information or confidential trade secrets, the court may clear the courtroom for the duration of such tes timony, but no longer.

The right to a public trial extends to pretrial proceedings that are integral to the trial phase, such as jury selection and evidentiary hearings (Rovinsky v. McKaskle, 722 F.2d 197 [5th Cir. 1984]). Despite the strong constitutional preference for public criminal trials, both courts-martial and juvenile delinquency hearings typically are held in a closed session, even when they involve criminal wrongdoing. In all other proceedings, the defendant may waive his right to a public trial, in which case the entire criminal proceeding can be conducted in private.

Right to Trial by an Impartial Jury

In both England and the American colonies, the Crown retained the prerogative to interfere with jury deliberations and to overturn verdicts that embarrassed, harmed, or otherwise challenged the authority of the royal government. Finding such interference unjust, the Founding Fathers created a constitutional right to trial by an impartial jury. This Sixth Amendment right, which can be traced back to the magna charta in 1215, does not apply to juvenile delinquency proceedings (McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 [1971]), or to petty criminal offenses, which consist of crimes punishable by imprisonment of six months or less (Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 [1970]).

The Sixth Amendment entitles defendants to a jury pool that represents a fair cross section of the community. From the jury pool, also known as a venire, a panel of jurors is selected to hear the case through a process called voir dire. During voir dire, the presiding judge, the prose cution, and attorneys for the defense are allowed to ask members of the jury pool a variety of questions intended to reveal any latent biases, prejudices, or other influences that might affect their impartiality. The jurors who are ultimately impaneled for trial need not represent a cross section of the community as long as each juror maintains impartiality throughout the proceedings. The presence of even one biased juror is not permitted under the Sixth Amendment (United States v. Aguon, 813 F.2d 1413 [9th Cir. 1987]).

A juror's impartiality may be compromised by sources outside the courtroom, such as the media. Jurors may not consider newspaper, television, and radio coverage before or during trial when evaluating the guilt or innocence of the defendant. Before trial, judges will take special care to filter out those jurors whose neutrality has been compromised by extensive media coverage. During trial, judges will instruct jurors to avoid exposing themselves to such extraneous sources. Exposure to information about the trial from an extraneous source, whether it be the media, a friend, or a family member, creates a presumption of prejudice to the defendant that can only be overcome by persuasive evidence that the juror can still render an impartial verdict (United States v. Rowley, 975 F.2d 1357 [8th Cir. 1992]). Failure to overcome this presumption will result in the reversal of any conviction.

The Sixth Amendment requires a trial judge to inquire as to the possible racial biases of prospective jurors when defendants request such an inquiry and there are substantial indications that racial prejudice could play a decisive role in the outcome of the case (United States v. Kyles, 40 F.3d 519 [2d Cir. 1994]). But an all-white jury does not, by itself, infringe on a black defendant's right to an impartial jury despite her contention that white jurors are incapable of acting impartially due to their perceived ignorance of inner-city life and its problems (United States v. Nururdin, 8 F.3d 1187 [7th Cir. 1993]). However, if a white juror is biased by an indelible prejudice against a black defendant, he will be stricken from the jury panel or venire.

For similar reasons, jurors are not permitted to begin deliberations until all of the evidence has been offered, the attorneys have made their closing arguments, and the judge has read the instructions. Federal courts have found that premature deliberations are more likely to occur after the prosecution has concluded its case in chief and before the defense has begun its presentation (United States v. Bertoli, 40 F.3d 1384 [3d Cir. 1994]). Federal courts have also determined that once a juror has expressed a view, he is more likely to view the evidence in a light most favorable to that initial opinion. If premature deliberations were constitutionally permitted, then the government would obtain an unfair advantage over defendants because many jurors would enter the final deliberations with a prosecutorial slant (United States v. Resko, 3 F.3d 684 [3d Cir. 1993]).

Although a jury must be impartial, there is no Sixth Amendment right to a jury of 12 persons. In Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970), the U.S. Supreme Court ruled that a jury of at least six persons is "large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a cross-section of the community." Conversely, the Court has declared that a jury of only five members is unconstitutionally small (Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 [1978]).

Similarly, there is no Sixth Amendment right to a unanimous jury (Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 [1972]). The "essential feature of a jury lies in the inter-position between the accused and the accuser of the common sense judgment of a group of laymen," the Court wrote in Apodaca. "A requirement of unanimity," the Court continued, "does not materially contribute to the exercise of that judgment." If a defendant is tried by a six-person jury, however, the verdict must be unanimous (Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 [1979]).

Notice of Pending Criminal Charges

The Sixth Amendment guarantees defendants the right to be informed of the nature and cause of the accusation against them. Courts have interpreted this provision to have two elements. First, defendants must receive notice of any criminal accusations that the government has lodged against them through an indictment, information, complaint, or other formal charge. Second, defendants may not be tried, convicted, or sentenced for a crime that materially varies from the crime set forth in the formal charge. If a defendant suffers prejudice or injury, such as a conviction, from a material variance between the formal charge and the proof offered at trial, the court will vacate the verdict and sentence.

The Sixth Amendment notice requirement reflects the efforts of the Founding Fathers to constitutionalize the common law concept of fundamental fairness that pervaded civil and criminal proceedings in England and the American colonies. Receiving notice of pending criminal charges in advance of trial permits defendants to prepare a defense in accordance with the specific nature of the accusation. Defendants who are incarcerated by totalitarian governments are frequently not apprised of pending charges until the trial begins. By requiring substantial conformity between the criminal charges and the incriminating proof at trial, the Sixth Amendment eliminates any confusion as to the basis of a particular verdict, thereby decreasing the chances that a defendant will be tried later for the same offense in violation of double jeopardy protections.

Many appeals have focused on the issue of what constitutes a material variance. In Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960), the U.S. Supreme Court found a material variance between an indictment charging the defendant with illegal importing activities, and the trial evidence showing that the defendant had engaged in illegal exporting activities. In United States v. Ford, 88 F.3d 1350 (4th Cir. 1996), the U.S. Court of Appeals for the Fourth Circuit found a material variance between an indictment charging the defendant with a single conspiracy, and the trial evidence demonstrating the existence of multiple conspiracies.

However, no material variance was found between an indictment that charged a defendant with committing a crime in Little Rock, Arkansas, and trial evidence showing that the crime was actually committed in North Little Rock, because both cities were within the jurisdiction of the court hearing the case (Moore v. United States, 337 F.2d 350 [8th Cir. 1964]). Nor was a material variance found in a check forgery case where the indictment listed the middle name of the defendant and the forged instrument included only a middle initial (Helms v. United States, 310 F.2d 236 [5th Cir. 1962]).

Confrontation of Adverse Witnesses

The Sixth Amendment guarantees defendants the right to be confronted by witnesses who offer testimony or evidence against them. The Confrontation Clause has two prongs. The first prong assures defendants the right to be present during all critical stages of trial, allowing them to hear the evidence offered by the prosecution, to consult with their attorneys, and otherwise to participate in their defense. However, the Sixth Amendment permits courts to remove defendants who are disorderly, disrespectful, and abusive (Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 [1970]). If an unruly defendant insists on remaining in the courtroom, the Sixth Amendment authorizes courts to take appropriate measures to restrain him. In some instances, courts have shackled and gagged recalcitrant defendants in the presence of the jury (Stewart v. Corbin, 850 F.2d 492 [9th Cir. 1988]). In other instances, defiant defendants have been removed from court and forced to watch the remainder of trial from a prison cell, through closed-circuit television.

The second prong of the Confrontation Clause guarantees defendants the right to face adverse witnesses in person and to subject them to cross-examination. Through cross-examination, defendants may test the credibility and reliability of witnesses by probing their recollection and exposing any underlying prejudices, biases, or motives to distort the truth or lie. Confrontation and cross-examination are vital components of the U.S. adversarial system.

Although defendants are usually given wide latitude in exercising their rights under the Confrontation Clause, courts retain broad discretion to impose reasonable restrictions on particular avenues of cross-examination. Defendants may be forbidden from delving into areas that are irrelevant, collateral, confusing, repetitive, or prejudicial. Similarly, defendants may not pursue a line of questioning solely for the purpose of harassment. For example, courts have prohibited defendants from cross-examining alleged rape victims about their sexual histories because such questioning is frequently demeaning and is unlikely to elicit answers that bear more than a remote relationship to the issue of consent (Bell v. Harrison, 670 F.2d 656 [6th Cir. 1982]).

In exceptional circumstances, defendants may be prevented from confronting their accusers face-to-face. If a judge determines that a fragile child would be traumatized by testifying in front of a defendant, the Sixth Amendment authorizes the court to videotape the child's testimony outside the presence of the defendant and later replay the tape during trial (Spigarolo v. Meachum, 934 F.2d 19 [2d Cir. 1991]). However, counsel for both the prosecution and defense must be present during the videotaped testimony. If neither the defendant nor her attorney are permitted the opportunity to confront a witness, even if the witness is a small child whose welfare might be harmed by rigorous cross-examination, the Sixth Amendment has been violated (Tennessee v. Deuter, 839 S.W.2d 391 [Tenn. 1992]).

Occasionally, defendants are denied the opportunity to confront and cross-examine their accusers under the controversial rules of hearsay evidence. Hearsay is a written or verbal statement made out of court by one person, and that is later repeated in court by another person who heard or read the statement, and presented for the truth of the matter asserted. Because such out-of-court statements are not typically made under oath or subject to cross-examination, the law treats them as untrustworthy when introduced into evidence by a person other than the original declarant. When hearsay statements are offered for their truth, they generally are deemed inadmissible by state and federal law.

However, certain hearsay statements, such as dying declarations, excited utterances, and officially kept records, are deemed admissible when made under reliable circumstances. Dying declarations are considered reliable when made by persons who have been informed of their impending death because such persons are supposedly more inclined to tell the truth. Excited utterances are considered reliable when made spontaneously and without time for premeditation. Business and public records are considered reliable when kept in the ordinary and official course of corporate or government activities. The prosecution may introduce all four types of evidence, as well as other "firmly rooted" exceptions to the hearsay rule, without violating the Sixth Amendment, even though the defendant is not afforded the opportunity to confront or to cross-examine the out-of-court declarant (United States v. Jackson, 88 F.3d 845 [10th Cir. 1996]).

Compulsory Process for Favorable Witnesses

As a corollary to the right of confrontation, the Sixth Amendment guarantees defendants the right to use the compulsory process of the judiciary to subpoena witnesses who could provide exculpatory testimony or who have other information that is favorable to the defense. The Sixth Amendment guarantees this right even if an indigent defendant cannot afford to pay the expenses that accompany the use of judicial resources to subpoena a witness (United States v. Webster, 750 F.2d 307 [5th Cir. 1984]). Courts may not take actions to undermine the testimony of a witness who has been subpoenaed by the defense. For example, a trial judge who discourages a witness from testifying by issuing unnecessarily stern warnings against perjury has violated the precepts of the Sixth Amendment (Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 [1972]).

A statute that makes particular persons incompetent to testify on behalf of a defendant is similarly unconstitutional. At issue in Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), was a state statute prohibiting accomplices from testifying for one another. Overturning the statute as a violation of the Sixth Amendment Compulsory Process Clause, the U.S. Supreme Court wrote that the defendant was denied the right to subpoena favorable witnesses "because the state arbitrarily denied him the right to put on the stand a witness who was physically present and mentally capable of testifying to events that he had personally observed and whose testimony was relevant and material to the defense."

Under certain circumstances, the prosecution may be required to assist the defendant in locating potential witnesses. In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), the defendant was charged with the illegal sale of heroin to "John Doe." When the prosecution refused to disclose the identity of John Doe, the U.S. Supreme Court concluded that the Sixth Amendment had been abridged because the disclosure of Doe's identity may have produced "testimony that was highly relevant and … helpful to the defense."

Defendants also have a Sixth Amendment right to testify on their own behalf. Before the American Revolution, defendants were not permitted to take the witness stand in Great Britain and in many of the colonies. The common law presumed all defendants to be incompetent to give reliable or credible testimony on their own behalf because of their vested interest in the outcome of the trial. Each defendant, regardless of his innocence or guilt, was declared incapable of offering truthful testimony when his life, liberty, or property was at stake. The Sixth Amendment laid this common law rule to rest in the United States. The amendment permits, but does not require, a defendant to testify on his own behalf.

Right to Counsel

Because of the law's complexity and the often substantial deprivations that a criminal conviction can produce, the Sixth Amendment provides criminal defendants with a right to counsel. A defendant's Sixth Amendment right to counsel attaches when the government initiates adversarial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment (United States v. Larkin, 978 F.2d 964 [7th Cir. 1992]). Unlike the right to a speedy trial, this Sixth Amendment right does not arise at the moment of arrest unless the government has already filed formal charges (Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 [1972]). However, defendants may assert a fifth amendment right to consult with an attorney during custodial interrogation by the police, even though no formal charges have been brought and no arrest has been made (miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

Defendants do not enjoy a Sixth Amendment right to be represented by counsel during every phase of litigation that follows the initiation of formal adversarial proceedings by the state. Instead, defendants may only assert this right during "critical stages" of the proceedings (Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]). A critical stage of prosecution includes every instance in which the advice of counsel is necessary to ensure a defendant's right to a fair trial or in which the absence of counsel might impair the preparation or presentation of a defense (United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993]).

Obviously, the trial is a critical stage in any criminal proceeding, as are jury selection, sentencing, and nearly every effort by the government to elicit information from the accused, including interrogation. However, courts are divided on the issue of whether the state may perform a consensual search of a defendant's premises without the advice or presence of counsel. At the same time, courts generally agree that pretrial hearings involving issues related to bail, the suppression of evidence, or the viability of the prosecution's case all qualify as critical stages of criminal proceedings (Smith v. Lockhart, 923 F.2d 1314 [8th Cir. 1991]). The U.S. Supreme Court has ruled that the denial of counsel during a critical stage amounts to an unconstitutional deprivation of a fair trial, warranting the reversal of conviction (United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]).

Courts also generally agree on a number of instances that do not constitute critical stages. For example, pretrial scientific analysis of fingerprints, blood samples, clothing, hair, handwriting, and voice samples have all been ruled to be noncritical stages (United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 [1967]). Nor is a probable cause hearing sufficiently critical to trigger the right to counsel (Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 [1975]). Each of these noncritical stages has been described as a preliminary facet of criminal prosecution that is largely unassociated with the more adversarial phases invoking the right to counsel.

If a defendant cannot afford to hire an attorney, the Sixth Amendment requires that the trial judge appoint one on her behalf (gideon v. wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). In instances where an indigent defendant has some financial resources, she may be required to reimburse the government for a portion of the fees paid to the court-appointed lawyer. The Sixth Amendment right of indigent criminal defendants to receive a court-appointed lawyer applies to every case involving a felony offense and to all other cases in which the defendant is actually incarcerated for any length of time, regardless of whether the crime is categorized as a misdemeanor or petty offense (Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 [1972]).

Persons who have been convicted of crimes may not compel a court-appointed attorney to file an appeal that the attorney believes is frivolous. In Anders v. California, 368 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the U.S. Supreme Court set out a procedure that an attorney must follow to request either withdrawal from the case or to have the court dispose of the case without a full legal review. However, in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L. Ed. 2d 756 (2000) the Court ruled that its precedent was not a "straitjacket" and that states were free to come up with procedures that protected both the criminal client and his attorney.

However, if an indigent defendant is prosecuted for a non-felony offense that is punishable by a potential jail or prison sentence, the Sixth Amendment is not violated if he is denied a court-appointed attorney as long as no penalty of incarceration is actually imposed (Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). In other words, an indigent defendant has no Sixth Amendment right to a court-appointed lawyer in a non-felony case when the only punishment he receives is a fine, the forfeiture of property, or some other penalty not involving incarceration. Thus, in a forfeiture proceeding where the government seized almost $300,000 from an arrested drug smuggler, the Sixth Amendment right to counsel was not infringed when the court denied the smuggler's request for a court-appointed attorney because no jail or prison sentence was ultimately imposed (United States v. $292,888.04 in U.S. Currency, 54 F.3d 564 [9th Cir. 1995]).

Nor is the Sixth Amendment right to counsel infringed when an indigent defendant is denied a court-appointed lawyer of her choice (Ford v. Israel, 701 F.2d 689 [7th Cir. 1983]). The selection of counsel to represent an indigent defendant is within the discretion of the trial court. The attorney selected need not be a great litigator, a savvy negotiator, or the best attorney available. Rather, the court-appointed lawyer must be a member in good standing of the bar who gives the client his complete and undivided loyalty, as well as a zealous and good faith defense (United States v. Cariola, 323 F.2d 180 [3rd Cir. 1963]). The quality of representation need not be perfect but only effective and competent enough to assure the defendant due process of law (Pineda v. Bailey, 340 F.2d 162 [5th Cir. 1965]). If the attorney representing a defendant is incompetent, whether the attorney has been appointed by the court or privately retained, the Sixth Amendment right to the effective assistance of counsel has been violated.

The U.S. Supreme Court has reviewed numerous ineffective counsel claims. In Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), the Court allowed review based on ineffective counsel at the sentencing stage. In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), the Court considered whether a defense lawyer must always consult with a defendant regarding an appeal of the conviction. The Court rejected a bright-line rule that would have mandated such a consultation, ruling that each case must be analyzed using a set of standards. In death-penalty cases, the Court had been more willing to vacate convictions based on ineffective counsel. However, in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), the Court departed from what has come to be known as the "death is different" standard. This standard requires less hard evidence of prejudice because of ineffective counsel. The Court ruled that the convicted murderer's ineffective counsel claim must be analyzed by the "but for" test. The general rule mandates that the defendant show that "but for" the lawyer's conduct the result of the trial would have been different.

The court may replace any attorney, publicly appointed or privately retained, if that is in the best interests of the defendant. A court will normally replace an attorney who has a conflict of interest that prevents her from faithfully discharging her obligation of loyalty to the client. Courts also retain the prerogative to deny a defendant's request to substitute attorneys if the request comes too late in the proceedings, is made solely to delay the trial, or is not for a good reason. However, if a defendant demonstrates a good reason for the substitution of attorneys, such as a complete breakdown in communication between lawyer and client, the court must honor the request for substitution unless a compelling reason exists for denying it. The efficient administration of justice is one reason that has been deemed sufficiently compelling to deny such requests (United States v. D'Amore, 56 F.3d 1202 [9th Cir. 1995]).

Finally, all defendants have a Sixth Amendment right to decline the representation of counsel and proceed on their own behalf. Defendants who represent themselves are said to be proceeding pro se. However, defendants who wish to represent themselves must first make a knowing and intelligent waiver of the Sixth Amendment right to counsel before a court will allow them to do so. (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975]). Courts must ensure that the defendant appreciates the disadvantages of appearing pro se and that he understands the potential consequences. The defendant must be informed that the presentation of a defense in a criminal case is not a simple matter of telling a story, but that it requires skills in examining a witness, knowledge of the rules of evidence and procedure, and persuasive oratory abilities. However, the U.S. Supreme Court has declined to apply this rule pro se appeals. In Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 120 S.Ct. 684, 145 L. Ed. 2d 597 (2000), the Court held that Faretta did not apply and that the state appeals court could require that an attorney be appointed to conduct the criminal appeal. In so ruling, the Court made clear that the Sixth Amendment does not apply to appellate proceedings.

further readings

Flumenbaum, Martin, and Brad S. Karp. 2000. "Sixth Amendment Right to Counsel." New York Law Journal 223 (March 22).

LaFave, Wayne R., Jerold H. Israel, and Nancy J. King, eds. 2000. Criminal Procedure. 3d ed. St. Paul, Minn.: West Group.

Sawczyn, Gerald W., and Sarah K. Eddy. 2002. "Sixth Amendment at Trial." Georgetown Law Journal 90 (May).

Tomkovicz, James J. 2002. The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution. Westport, Conn.: Greenwood.

cross-references

Cameras in Court; Clarendon, Constitutions of; Courtroom Television Network; Criminal Law; Criminal Procedure; Freedom of the Press; Incorporation Doctrine; Juvenile Law; Peremptory Challenge; Pretrial Publicity; Sequestration; Sexual Abuse; Shield Laws.

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 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 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.

Bibliography

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

Wayne R. LaFave