There are no less than six (6) clauses in the Sixth Amendment, two of which apply to preliminary proceedings, and four of which apply to trial. The Amendment, in whole, 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. We dealt with the two clauses that apply to preliminary proceedings in a previous lecture - the notification clause (to be informed of the nature and cause of the accusation) and the assistance of counsel clause (to have the assistance of counsel for his defense). In this lecture, we deal with the remaining clauses: the speedy and public trial clause (enjoy the right to a speedy and public trial) the impartial jury clause (by an impartial jury) the confrontation clause (to be confronted with the witnesses against him) the compulsory process clause (to have compulsory process for obtaining witnesses) The speedy and public trial clause is believed to have its sources in the Magna Carta, at least the speedy part. The idea of a public trial goes back to the Bible. This is a right that protects both individuals and society. It is intended, sociologically, to protect society by having therapeutic value. It is important to note, however, that most statute of limitations override 6th amendment guidelines, and that some delays do NOT trigger 6th Amendment protections. The case of Barker v. Wingo 407 U.S. 514 (1972) is the landmark case in this area. It sets up an ad hoc balancing test where the reasons, length, assertion of right, and prejudicial error are looked at in each case of delay. Public trial is a separate issue disjoined from the right to speedy trial. The impartial jury clause supplements the earlier guarantee of jury trial in Article III of the Constitution. A jury size of 12 is mostly a historical accident, but the idea is to have a jury large enough to promote group deliberation, freedom from outside intimidation, and the fair possibility of a

cross-section of the community. The notion of "cross-section" applies to the venire, or jury pool, from which eligible jurors are drawn. There is nothing in the Constitution which mentions that jury verdicts must be unanimous. Impartial means no knowledge of case (or only minimally knowledgeable); no familiarity with parties; and no favoritism or prejudice toward the parties in the case or the class from which they belong. The confrontation clause guarantees the right to confront hostile witnesses. Defendants have the right to test the credibility of their accusers in order to prevent ex parte (outside of court) hearsay statements. This right is designed to enhance the truth-finding function of trial in two ways: by face-toface confrontation during the witness's direct testimony; and through the opportunity for confrontation by cross-examination. The first way entitles the defendant to be in court at all important stages of testimony, and their physical presence in the courtroom is normally required unless: (a) they voluntarily choose to be absent; or (b) they continually disrupt the proceedings after being warned not to do so. The second way permits the defendant, or more likely, their counsel, to test the witness's credibility and reliability under crossexamination. To some extent, almost any test is tolerated, including the witness's believability. An important derivative of this right is the Hearsay Rule (Federal Rule of Evidence 801c) which, in general, prohibits hearsay because the defendant cannot confront an absent witness. However, the U.S. Supreme Court has held that the confrontation clause does not prohibit hearsay under certain exceptions: if the prosecution demonstrated good-faith in getting a witness to testify; if the hearsay is trustworthy and reliable in the totality of circumstances; or any number of other exceptions to the hearsay rule. The compulsory process clause guarantees the right to compel the attendance of favorable witnesses. This is usually done by means of a courtordered subpoena. To exercise this right, the defendant must show that the witness's testimony would be relevant, material, and favorable to the defendant. Compulsion of such witnesses must not be cumulative or redundant. In other words, the defendant does NOT have the right to keep calling witness after witness to testify favorably on their behalf. THE RIGHT TO A SPEEDY TRIAL The speedy trial clause of the Sixth Amendment applies to the states through the Fourteenth Amendment and was selectively incorporated in the 1967 case of Klopfer v. North Carolina. Prior to the 1960s, the notion of a speedy trial was rarely discussed, or needed, for that matter, since most cases proceeded in timely fashion. By 1970, however, a backlog of cases began to appear in court systems, and lawyers started to question whether lengthy delays were constitutional or not. There was much disagreement over exactly when the

clock should start ticking; whether from the time the offense was committed or from the time formal charges were filed. In U.S. v. Marion (1971), the Court ruled that the clock started ticking from the time of indictment, or when formal charges were filed. This allows prosecutors to publicly announce that indictments are forthcoming, and take as long as they want, two or three years, for example, to actually file charges. The following year, in 1972 with the case of Barker v. Wingo , the Supreme Court was asked to decide exactly how long a delay in bringing someone to trial is unconstitutional. The case involved a five year delay after an indictment had already been filed. Barker had committed murder along with an accomplice named Manning, and to convict Barker, the prosecutor needed Manning to testify, but Manning refused to do so on Fifth Amendment grounds. So, the prosecutor decided to try Manning first, convict him, and remove his reason for no longer testifying against Barker. Unfortunately, it took longer to convict Manning than anticipated, five years, in fact, until Barker's trial and conviction was obtained. Barker's lawyers appealed on constitutional grounds, but a unanimous Supreme Court upheld Barker's conviction. The Justices refused to interpret the Sixth Amendment as requiring any specific length of time. Instead, Justice Powell delivered the majority opinion which established a balancing test, which he said applied in Barker's case because there was reason to wait for a witness, there was no prejudice, and Barker's lawyers only raised the delay issue fairly late. This balancing test is known by a number of names: Justice Powell's balancing test, the Barker test, or the ad hoc balancing test (because it seemed tailor-made to ensure Barker's conviction). It sets up the following conditions for courts to consider: The ad hoc balancing test (four criteria) for determining unreasonable delay: the length of the delay (the longer, the more unreasonable) the reasons for the delay (the prosecutor must have good reasons) the point at which defendant asserts their right (if it's just another attempt at avoiding conviction or punishment) whether the delay prejudiced the defendant (if their favorable witnesses died, for example)

In the uproar that followed the Barker decision, the U.S. Congress decided to

pass legislation called the Speedy Trial Act of 1974. It applies only to federal courts, but it sets specific time limits, requiring indictment within 30 days of arrest, arraignment within 10 days after indictment, and trial 60 days after arraignment. This stringent set of protections goes beyond what the Supreme Court thinks is fair, and this area of Sixth Amendment jurisprudence is one of the few areas where there is a hotly contested interpretive battle going on between two branches of government. Most states passed their own version of the federal Speedy Trial Act, the most common time period being 90 days from arrest to trial (which is what you see in criminal justice textbooks, although state laws vary considerably). Needless to say, court backlog, congestion, and delay still exist, so statutory law is rarely enforced since constitutional law provides much more breathing room. A few dismissals have occurred, however, but generally, no legislator likes to see the guilty go free under some law they passed. To give the appearance of effectiveness, most states and even the federal government, have enacted exceptions to their Speedy Trial Acts. The most common exception is whether or not delay is caused by the defendant's motions. No one has dared experiment with the implicit reasoning in the Barker decision to consider whether delay is an attempt to escape punishment. Reform in this area tends to get caught up in revisions of habeas corpus law or restrictions on frivolous lawsuits. To this day, the speedy trial clause and Speedy Trial Acts remain as little-known loopholes, taken advantage of by a small number of defendants and lawyers. Also, given the fact that only a small number of cases go to trial because of plea-bargaining, it is not in the defendant's best interests to assert their right for speedy trial early on. That would negate any opportunity for adequate plea-bargaining to occur. The notion of making the criminal justice system speedier has appeal to some. After all, every parent knows that you don't raise your children by saying "Johnny, you been bad, so six months from now you're going to be grounded." However, criminal justice systems loaded with constitutional safeguards simply do not lend themselves to swiftness. About all that can be done is to enhance or intensify some of the components or subcomponents of the system, such as with "intensive probation" where probation officers drive around at night or make it so they can show up on a home visit at any time. Another idea is to use the civil justice system, not generally known for being fast in itself, but by adding such things as "gang injunctions," it's possible to clean up a neighborhood quicker with anti-gang injunctions which board up drug houses and the like. Similarly, drug testing and gun searches would accomplish the kinds of objectives which target those criminals who are presumably taking advantage and making a mockery of the system's slowness. Beefing up truancy enforcement might also produce some changes along the lines that the system is swiftly holding people to some higher standard. THE RIGHT TO A PUBLIC TRIAL

The right to a public trial is NOT absolute. The governmental purpose of keeping the criminal justice process out in the open is to ensure that all participants, especially judges and prosecutors, act professionally at all times. Openness is a presumption, not a right. The law presumes that open, public proceedings will be the norm at all stages of the criminal justice process. However, the presumption of openness can be easily overturned by any motion for closure. There are a number of well-established precedents setting forth good reasons for closure; organized crime cases in which the identities of jurors are kept secret (anonymous juries); rape cases in which common decency closes proceedings to the public; and juvenile cases in which concern for well-being closes proceedings to the public. Closure is decided on a case-by-case basis at the discretion of the judge, as are gag orders to the media, although there are tougher standards for avoiding pretrial publicity. Constitutionally, there must be some substantial or legitimate public interest served; in practice, most any claim of embarrassment, trauma, or intimidation overrides the presumption of openness. PressEnterprise Co. v. Superior Court of California (1984) requires a showing of why alternatives to closure are inadequate. Many scholars regard the right to public trial and the right to free press to be in conflict. THE RIGHT TO AN IMPARTIAL JURY It's a fact that when the English nobles forced King John to sign the Magna Charta establishing a right to a jury of one's peers, they were talking about juries that consisted of members of their own social class. The principle set down that year in 1215 was that commoners should be tried by commoners and noblemen by noblemen. In America, of course, we don't recognize social class, so our substitute for this principle is the idea of a cross-section of the community. That is quite the opposite conception of what juries were originally intended for. Furthermore, juries, for centuries, were selected for their good judgment and knowledge of the case. Somewhere in AngloAmerican common law, this changed into a conception of impartial juries who were best seen as knowing as little as possible (about the case). The jury trial clause of the Sixth Amendment applies to the states through the case of Duncan v. Louisiana (1962). It's also guaranteed in Article 3, Section 2 of the Constitution which says that all crimes, except impeachment, shall be tried by jury. All that Duncan provides is the right to a jury at the state level if such a right would exist at the federal level. There is NO right to a bench trial in front of a judge without a jury; that's a privilege at the court's discretion. There is NO right to a jury in military justice, and there is NO constitutional right to a jury for juveniles. The Supreme Court reasons that the jury right is actually an entitlement that extends to classes of cases where the entitlement existed when the Constitution was adopted. As interpreted, most

jurisdictions now provide the right when the potential penalty is more than six months imprisonment, or a non-petty offense. It doesn't matter if there's a whole bunch of petty offenses for which the penalty adds up to more than six months. The seriousness of the offense is what matters. THE RIGHT TO CONFRONTATION The origins of the right to confrontation are obscure. One romantic myth traces it to the trial of sir Walter Raleigh, who was convicted on the basis of an affidavit by an alleged co-conspirator who was never produced in court. Trial by affidavit, or ex parte absent witnesses, is common in civil law, but it is strictly prohibited in criminal cases by the Sixth Amendment. Nevertheless, evidence law allows certain exceptions, especially in criminal cases. The dying declaration is one such exception, and criminal courts place a lot of weight on the last words of a victim or witness, regardless of their accuracy. Another doctrine is the so-called availability standard , which allows admission of ex parte testimony if the prosecutor has exhausted all means at the government's disposal to bring forth a witness. Forensic law also allows some experts to testify by written report or response to hypothetical research questions. The right to cross-examine witnesses of one's adversary is absolute. The right to confront the witnesses of one's adversary in a face-to-face context before a judge or jury is NOT absolute. This is because the right to cross-examination has been thought of as the "greatest legal engine ever invented for discovery of truth" and to "inhere logically from the confrontation clause" (Bruton v. U.S. 1968). With few exceptions, the Court has always treated cross-examination as the more logically derived right or what the framers intended. Crossexamination is also a more "critical" right since it is allowed when taking depositions from potential witnesses in the pretrial stage where the defendant is not normally present. The most common situation in which the confrontation clause is triggered involves a joint trial of two or more co-defendants where one confesses (and implicates the others) while the others take the Fifth Amendment and refuse to testify on their behalf. In such situations, the Hearsay Rule needs to be relaxed and/or juries instructed not to consider the implicating confession as proof of guilt for the silent co-defendants, nor the right to remain silent as proof of guilt. Needless to say, jurors have to perform some neat tricks of "mental gymnastics" to follow these kinds of instructions, and it becomes all the more complicated when you consider that a prosecutor's favorite trick is to try all codefendants jointly and rely upon the pretrial confession or deposition of one co-defendant in a refreshed memory tactic when all the defendants take the Fifth at trial. All these situations involve the Bruton doctrine (from Bruton v. U.S. 1968) which has many exceptions, but generally prohibits prosecutors from using a "one trial for all" tactic. Many scholars regard evidence law as

being in conflict with constitutional law on this regard. In recent years, there have been more straightforward cases involving the confrontation clause. Coy v. Iowa (1988), for example, involved sexually abused child victims who testified in the courtroom behind a screen so as not to see the defendant during their testimony. The Supreme Court ruled this was unconstitutional, not because it deprived the defendant of his rights, but because the state of Iowa was doing it for all sexual abuse cases. There has not been a standard or test developed in any subsequent rulings, and appellate law varies by region. Most regions follow a public policy and necessity standard set down by Thomas v. People, 803 P.2d 144 (Colo. 1990) which requires the trial judge make a particularized finding over the individual mental or emotional harm a child victim of sexual abuse would experience in the presence of the defendant. Various state shield laws provide a constant arena of constitutional questions, as does the modern use of technology, such as videoconferencing. THE RIGHT TO COMPULSORY PROCESS The compulsory process clause of the Sixth Amendment was made binding on the states in Washington v. Texas (1967), although the right has long existed in state constitutions and statutes before then. The right allows defendants, free of charge as long as material to their case, to obtain a subpoena to call forth witnesses, documents, and objects on their behalf. Court clerks issue the subpoenas, and they are usually served by a marshal, sheriff, or process server. Prosecutors normally don't challenge a defendant's exercise of this right, but when they do, a judge must rule on the materiality to the case. It's important to note that pretrial reciprocal discovery rules and noticeof-alibi rules generally outweigh the constitutional right to compulsory process. Again, as with the confrontation clause, many scholars regard evidence law as being in conflict with constitutional law in this regard, although limitations on the right to compulsory process have a long history in the exclusionary rule going back to Weeks v. U.S. (1913). A typical reciprocal discovery rule reads as follows: Subject to constitutional limitations and a reasonable amount of time, counsel shall inform their adversary of any defenses they intend to make at hearing or trial, and shall furnish the other side with a list of the material and information within its possession or control. Such furnishing shall include the names and last known addresses of persons intended to be called as witnesses. Discovery rules prevent abuse of compulsory process to "ambush" the other

side. Notice-of-alibi rules serve the same purpose, but additionally place restrictions on a defendant's continual calling of witness after witness in hopes of obtaining an alibi. The compulsory process clause has an interesting history of being involved in cases of national security, secrecy, and Presidential privilege. Several Presidents have been subpoenaed for documents, from Thomas Jefferson (in the Aaron Burr trial), to Richard Nixon (in Watergate), to Bill Clinton, and all have either lost or won their claims to executive privilege outweighing the right to compulsory process. INTERNET RESOURCES Anatomy of a Murder: A Trip Through the Legal System Courtroom 21 Court TV Lecture on PreTrial Procedures Lecture on Reversible Error Nolo Press Vera Institute PRINTED RESOURCES Beaney, W. (1955). The Right to Counsel in American Courts. Ann Arbor: Univ. of Michigan Press. Epstein, L. and T. Walker. (2001). Constitutional Law for a Changing America. Wash. DC: CQ Press. Ferdico, J. (1996). Criminal Procedure for the Criminal Justice Professional. St. Paul: West. Garcia, A. (1992). The Sixth Amendment in Modern American Jurisprudence. Westport: Greenwood. Heller, F. (1951). The Sixth Amendment to the Constitution of the U.S. Westport: Greenwood. Levy, L. & K. Karst. (eds.) (1998). Encyclopedia of the American Constitution. NY:Macmillan. Lewis, A. (1989). Gideon's Trumpet. NY: Vintage. Scheb, J. and J. (1999). Criminal Procedure. Belmont, CA: Wadsworth. Scott, A. (1982). "Fairness in Accusation of Crime" Minnesota Law Review 41:509-46. Westen, H. (1978). "Confrontation and Compulsory Process" Harvard Law Review 91:570-89. Last updated: 01/06/04 Syllabus for JUS 410 MegaLinks in Criminal Justice