We The People, Our Bill of Right, and Why We Should Care: Part 6

Part 6: Amendment VI
What it says:

“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.” (1).

What it means:

Broadly speaking, the Sixth Amendment offers further protection for an individual accused of a crime. After being indicted by a grand jury, the Sixth Amendment protects an individual’s right to a reasonably paced trial in the public eye, and to be tried by a jury of peers in the area where the crime was committed. The Amendment also ensures the right of the accused to know what crime he is being accused of and to “physically face those who testify against him, and…to conduct cross-examination.” (2). The final protections ensure that the defendant will have the ability to call witnesses that will support his defense and that the defendant has access to a lawyer.

Where it came from:

Speedy trial clause: Like much else in the Bill of Rights, the speedy trial clause was derived from the Magna Carta. (3). In 1776, the same right was also incorporated into the Virginia Declaration of Rights. (4). The thought behind this supports the defendant as much as society. The guarantee to a speedy trial not only “limit[s] the possibility that long delay will impair the ability of an accused to defend himself” (5), but also limits the amount of money that the state will have to spend on incarceration before trial. (6).

Public Trial: The public trial clause is a reaction to English violations of human rights. Its main purpose is to guard against secret proceedings like those of the Star Chamber. (7). In Justice Joseph Story’s Commentaries on the Constitution of the United States, he emphasized that in “the established course of the common law…trials for crimes” are “always public.” (8).

Jury Trial: The absolute right to trial by jury seems to be a very American institution. This probably arose from the fact that colonists had to cope with special problems of a new society with untamed fron­tiers. One of these problems was a shortage of judges. There was also the fact that the Crown usually sent governors who were either ignorant of or indifferent to the needs of colonists. As a result, Americans began developing their own systems of law instead of trusting poorly trained and cruel judges. (9). Trial by jury also presented the perfect method by which colonists could undermine the power of the Crown. Although the differences between the American and English juries were subtle, it nonetheless became known, and accepted, as “the law of the future.” (10).

Notice of Accusation: A persons right to be informed of the charges against him has its roots in Anglo-Saxon law. These early legal practices required a precise and accusation. (11). However, at that time England still had an ecclesiastical judicial system which used an inquisitorial process. This process ignored the notice of accusation and an individual could, for example, be called to answer charges of heresy without a specific indictment. (12). As a result of both precedent and violations of rights, the Framers incorporated this right into the Sixth Amendment.

Confrontation Clause: In England, trials in which the accused was able to cross examine witnesses were common. The Framers took that model and coupled it with the history of English state trials. In these trials, depositions were taken in private, then presented as evidence in court. Generally, the accused was never even able to see his accuser, let alone confront him. The Framers experienced this abuse first hand when Parliament allowed written interrogatories instead of live testimony. As such, they knew the importance of being able to see and interrogate one’s accuser and added it to this Amendment. (13).

Compulsory Process Clause: This clause was included as a response to the common-law rule that, in felony cases, the defendant would usually be denied the right to introduce witnesses in his defense. The Framers felt that it was important to provide defendants in criminal trials with the means of obtaining witnesses in their own defense. (14).

The right to a Lawyer: Before the eighteenth century, English law prohibited individuals accused of felonies from retaining counsel. This tradition was first abridged by the Treason Act of 1696. (15). This act provided access to counsel in treason cases. The Act specified a person charged with treason “shall be received and admitted to make his and their full Defence by Counsel learned in the Law.” (16). This precedent then affected the colonists and Framers. At the time, Americans would be able to relate to defendants in treason trials. For example, Thomas Paine had been prosecuted for treason by the Crown as had other Founding Fathers. As a result of this legal history, many colonies guaranteed the right to counsel in their state charters and that was then incorporated into the Constitution. (17).

Why it’s important today:

Much like the Fifth Amendment, the importance of the Sixth Amendment comes not from challenges to it. Instead, the importance comes from the shield that this Amendment erects between an individual and abuses of a tyrannical government. Every one of these protections was put in place by the Framers to make sure that the government would never be able to grow into the abusive behemoth that ruled over our 13 colonies in 1776. These rights recognize that individuals, even those accused of heinous crimes, deserve to have their voices heard. The smallest minority on earth is the individual. If the citizens of the United States give up any of these rights, then the protection of that minority goes away.

(1) U.S. Constitution, amend. 6

(2) Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987)

(3) Ch. 40 of the 1215 Magna Carta, a portion of ch. 29 of the 1225 reissue

(4) 7 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d Sess. 8, 3813 (1909)

(5) United States v. Ewell, 383 U.S. 116, 120 (1966)

(6) id.

(7) Andersen v. Maryland, 427 U.S. 463 (1976)

(8) Joseph Story, Commentaries on the Constitution of the United States (1833)

(9) Valerie Hans, The Evolution of the American Jury Evolution of the Jury, http://law2.umkc.edu/faculty/projects/ftrials/juryseminar/EvolutionJury.html (last visited Aug 5, 2017)

(10) Crown v. John Peter Zenger (1735)

(11) Edmin Meese III, The Heritage Guide to The Constitution Guide to the Constitution, http://www.heritage.org/constitution/#!/amendments/6/essays/155/arraignment-clause (last visited Aug 5, 2017)

(12) Legal Dictionary – Law.com, Law.com Legal Dictionary, http://dictionary.law.com/Default.aspx?selected=2004 (last visited Aug 5, 2017)

(13) Edmin Meese III, The Heritage Guide to The Constitution Guide to the Constitution, http://www.heritage.org/constitution/#!/amendments/6/essays/156/confrontation-clause (last visited Aug 5, 2017)

(14) Washington v. Texas, 388 U.S. 14 (1967)

(15) An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 1696, 7 & 8 Will. 3, c. 3 (Eng.), in 7 Statutes of the Realm 6 (John Raithby ed., 1820); see Tomkovicz, supra note 8, at 6–7; Shapiro, supra note 9, at 217–18.

(16) An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 1696, 7 & 8 Will. 3, c. 3, § 1 (Eng.), in 7 Statutes of the Realm 6 (John Raithby ed., 1820).

(17) Erica Hashimoto, An Originalist Argument for A Sixth Amendment Right to Competent Counsel, 99 Iowa L. Rev. 1999 (2014).


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