1397

SIXTH AMENDMENT

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

CONTENTS

Page

Criminal Prosecutions ............................................................................................................... 1399

Coverage .............................................................................................................................. 1399

Offenses Against the United States ........................................................................... 1400

Right to a Speedy and Public Trial .......................................................................................... 1400

Speedy Trial ........................................................................................................................ 1400

Source and Rationale .................................................................................................. 1400

Application and Scope ................................................................................................. 1401

When the Right Is Denied .......................................................................................... 1402

Public Trial ......................................................................................................................... 1404

Right to Trial by Impartial Jury .............................................................................................. 1406

Jury Trial ............................................................................................................................ 1406

The Attributes of the Jury .......................................................................................... 1408

Criminal Proceedings to Which the Guarantee Applies ........................................... 1410

Impartial Jury .................................................................................................................... 1412

Place of Trial—Jury of the Vicinage ........................................................................................ 1419

Notice of Accusation .................................................................................................................. 1420

Confrontation ............................................................................................................................. 1421

Compulsory Process ................................................................................................................... 1429

Assistance of Counsel ................................................................................................................ 1429

Development of an Absolute Right to Counsel at Trial ................................................... 1429

Powell v. Alabama ....................................................................................................... 1430

Johnson v. Zerbst ........................................................................................................ 1431

Betts v. Brady and Progeny ....................................................................................... 1432

Gideon v. Wainwright ................................................................................................. 1434

Protection of the Right to Retained Counsel ............................................................. 1435

Effective Assistance of Counsel .................................................................................. 1437

Self-Representation ..................................................................................................... 1440

Right to Assistance of Counsel in Nontrial Situations .................................................... 1440

Judicial Proceedings Before Trial .............................................................................. 1440

Custodial Interrogation ............................................................................................... 1441

Lineups and Other Identification Situations ............................................................ 1444

Post-Conviction Proceedings ....................................................................................... 1447

Noncriminal and Investigatory Proceedings ............................................................. 1447

1399

1 Callan v. Wilson, 127 U.S. 540 (1888).

2 Reynolds v. United States, 98 U.S. 145 (1879). See also Lovato v. New Mexico,

242 U.S. 199 (1916). 3 Balzac v. Puerto Rico, 258 U.S. 298, 304–05 (1922); Dorr v. United States, 195

U.S. 138 (1904). These holdings are, of course, merely one element of the doctrine

of the Insular Cases, De Lima v. Bidwell, 182 U.S. 1 (1901); and Downes v. Bidwell,

182 U.S. 244 (1901), concerned with the ‘‘Constitution following the flag.’’ Supra,

pp. 324–25. Cf. Rassmussen v. United States, 197 U.S. 516 (1905). 4 In re Ross, 140 U.S. 453 (1891).

5 354 U.S. 1 (1957) (holding that civilian dependents of members of the Armed

Forces overseas could not constitutionally be tried by court-martial in time of peace

for capital offenses committed abroad). Four Justices, Black, Douglas, Brennan, and

Chief Justice Warren, disapproved Ross as ‘‘resting . . . on a fundamental misconception’’ that the Constitution did not limit the actions of the United States Government wherever it acted, id. at 5–6, 10–12, and evinced some doubt with regard

to the Insular Cases as well. Id. at 12–14. Justices Frankfurter and Harlan, concurRIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

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 defense.

CRIMINAL PROSECUTIONS

Coverage

Criminal prosecutions in the District of Columbia 1 and in incorporated territories 2 must conform to this Amendment, but those

in the unincorporated territories need not do so. 3 In upholding a

trial before a United States consul of a United States citizen for a

crime committed within the jurisdiction of a foreign nation, the

Court specifically held that this Amendment reached only citizens

and others within the United States or who were brought to the

United States for trial for alleged offenses committed elsewhere,

and not to citizens residing or temporarily sojourning abroad. 4 It

is clear that this holding no longer is supportable after Reid v. Covert, 5 but it is not clear what the constitutional rule is. All of the
1400 AMENDMENT 6—RIGHTS OF ACCUSED

ring, would not accept these strictures, but were content to limit Ross to its particular factual situation and to distinguish the Insular Cases. Id. at 41, 65. Cf.

Middendorf v. Henry, 425 U.S. 25, 33–42 (1976) (declining to decide whether there

is a right to counsel in a court-martial, but ruling that the summary court-martial

involved in the case was not a ‘‘criminal prosecution’’ within the meaning of the

Amendment). 6 Citation is made in the sections dealing with each provision.

7 United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32 (1812); United States

v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816); United States v. Britton, 108 U.S. 199,

206 (1883); United States v. Eaton, 144 U.S. 677, 687 (1892). 8Oceanic Navigation Co. v. Stranaham, 214 U.S. 320 (1909); Hepner v. United

States, 213 U.S. 103 (1909); United States v. Regan, 232 U.S. 37 (1914). 9 United States ex rel. Turner v. Williams, 194 U.S. 279, 289 (1904); Zakonaite

v. Wolf, 226 U.S. 272 (1912). 10 Compare In re Debs, 158 U.S. 564 (1895), with Bloom v. Illinois, 391 U.S. 194

(1968). 11See United States v. Bowman, 260 U.S. 94 (1922) (treating question as a matter of statutory interpretation); NATIONAL COMMISSION ON REFORM OF FEDERAL

CRIMINAL LAWS, WORKING PAPERS 69–76 (1970). Congress has recently asserted the

authority by criminalizing various terrorist acts committed abroad against U.S. nationals. See, e.g., prohibitions against hostage taking and air piracy contained in

Pub. L. No. 98–473, ch. XX; 18 U.S.C. § 1203 and 49 U.S.C. app. §§ 1471, 72; and

prohibitions against killing or doing physical violence to a U.S. national abroad contained in Pub. L. No. 99–399, § 1202(a), 100 Stat. 896 (1986); 18 U.S.C. § 2331.

Extraterritorial jurisdiction under the hostage taking and air piracy laws was

upheld by an appeals court in United States v. Yunis, 924 F.2d 1086 (D.C. Cir.

1991). 12 ‘‘We will sell to no man, we will not deny or defer to any man either justice

or right.’’ Ch. 40 of the 1215 Magna Carta, a portion of ch. 29 of the 1225 reissue.

Klopfer v. North Carolina, 386 U.S. 213, 223–24 (1967).

rights guaranteed in this Amendment are so fundamental that they

have been made applicable against state abridgment by the due

process clause of the Fourteenth Amendment. 6

Offenses Against the United States.—There are no commonlaw offenses against the United States. Only those acts which Congress has forbidden, with penalties for disobedience of its command, are crimes. 7 Actions to recover penalties imposed by act of

Congress generally but not invariably have been held not to be

criminal prosecutions, 8 as is true also of deportation proceedings, 9

but contempt proceedings which were at one time not considered

to be criminal prosecutions are no longer within that category. 10

To what degree Congress may make conduct engaged in outside the

territorial limits of the United States a violation of federal criminal

law is a matter not yet directly addressed by the Court. 11

RIGHT TO A SPEEDY AND PUBLIC TRIAL

Speedy Trial

Source and Rationale.—The right to a speedy trial may be

derived from a provision of Magna Carta and it was a right so interpreted by Coke. 12 Much the same language was incorporated
AMENDMENT 6—RIGHTS OF ACCUSED 1401

13 7 F. THORPE, THE FEDERAL AND STATE CONSTITUTIONS, H. Doc. No. 357, 59th

Congress, 2d Sess. 8, 3813 (1909). 14 United States v. Ewell, 383 U.S. 116, 120 (1966). See also Klopfer v. North

Carolina, 386 U.S. 213, 221–22 (1967); Smith v. Hooey, 393 U.S. 374, 377–379

(1969); Dickey v. Florida, 389 U.S. 30, 37–38 (1970). 15 Barker v. Wingo, 407 U.S. 514, 519 (1972); Dickey v. Florida, 398 U.S. 30,

42 (1970) (Justice Brennan concurring). Congress by the Speedy Trial Act of 1974,

Pub. L. No. 93–619, 88 Stat. 2076, 18 U.S.C. §§ 3161–74, has codified the law with

respect to the right, intending ‘‘to give effect to the sixth amendment right to a

speedy trial.’’ S. Rep. No. 1021, 93d Congress, 2d Sess. 1 (1974). 16Klopfer v. North Carolina, 386 U.S. 213, 226 (1967). 17 United States v. Marion, 404 U.S. 307, 313, 320, 322 (1971). Justices Douglas,

Brennan, and Marshall disagreed, arguing that the ‘‘right to a speedy trial is the

right to be brought to trial speedily which would seem to be as relevant to pretrial

indictment delays as it is to post-indictment delays,’’ but concurring because they

did not think the guarantee violated under the facts of the case. Id. at 328. In United States v. MacDonald, 456 U.S. 1 (1982), the Court held the clause was not impliinto the Virginia Declaration of Rights of 1776 13 and from there

into the Sixth Amendment. Unlike other provisions of the Amendment, this guarantee can be attributable to reasons which have to

do with the rights of and infliction of harms to both defendants and

society. The provision is ‘‘an important safeguard to prevent undue

and oppressive incarceration prior to trial, to minimize anxiety and

concern accompanying public accusation and to limit the possibility

that long delay will impair the ability of an accused to defend himself.’’ 14 The passage of time alone may lead to the loss of witnesses

through death or other reasons and the blurring of memories of

available witnesses. But on the other hand, ‘‘there is a societal interest in providing a speedy trial which exists separate from and

at times in opposition to the interests of the accused.’’ Persons in

jail must be supported at considerable public expense and often

families must be assisted as well. Persons free in the community

may commit other crimes, may be tempted over a lengthening period of time to ‘‘jump’’ bail, and may be able to use the backlog of

cases to engage in plea bargaining for charges or sentences which

do not give society justice. And delay often retards the deterrent

and rehabilitative effects of the criminal law. 15

Application and Scope.—Because the guarantee of a speedy

trial ‘‘is one of the most basic rights preserved by our Constitution,’’

it is one of those ‘‘fundamental’’ liberties embodied in the Bill of

Rights which the due process clause of the Fourteenth Amendment

makes applicable to the States. 16 The protection afforded by this

guarantee ‘‘is activated only when a criminal prosecution has

begun and extends only to those persons who have been ‘accused’

in the course of that prosecution.’’ Invocation of the right need not

await indictment, information, or other formal charge but begins

with the actual restraints imposed by arrest if those restraints precede the formal preferring of charges. 17 Possible prejudice that
1402 AMENDMENT 6—RIGHTS OF ACCUSED

cated by the action of the United States when, in May of 1970, it proceeded with

a charge of murder against defendant under military law but dismissed the charge

in October of that year, and he was discharged in December. In June of 1972, the

investigation was reopened and an investigation was begun, but a grand jury was

not convened until August of 1974, and MacDonald was not indicted until January

of 1975. The period between dismissal of the first charge and the later indictment

had none of the characteristics which called for application of the speedy trial

clause. The period between arrest and indictment must be considered in evaluating

a speedy trial claim. Marion and MacDonald were applied in United States v. Loud

Hawk, 474 U.S. 302 (1986), holding the speedy trial guarantee inapplicable to the

period during which the government appealed dismissal of an indictment, since during that time the suspect had not been subject to bail or otherwise restrained. 18 United States v. Marion, 404 U.S. 307, 322–23 (1971). Cf. United States v.

Toussie, 397 U.S. 112, 114–15 (1970). In some circumstances, pre-accusation delay

could constitute a due process violation but not a speedy trial problem. If prejudice

results to a defendant because of the government’s delay, a court should balance the

degree of prejudice against the reasons for delay given by the prosecution. Marion,

supra, at 324; United States v. Lovasco, 431 U.S. 783 (1977); United States v. MacDonald, 456 U.S. 1, 8 (1982). 19Smith v. Hooey, 393 U.S. 374 (1969); Dickey v. Florida, 398 U.S. 30 (1970). 20Klopfer v. North Carolina, 386 U.S. 213 (1967). In Pollard v. United States,

352 U.S. 354 (1957), the majority assumed and the dissent asserted that sentence

is part of the trial and that too lengthy or unjustified a delay in imposing sentence

could run afoul of this guarantee. 21 Beavers v. Haubert, 198 U.S. 77, 87 (1905) (holding that the guarantee could

not be invoked by a defendant first indicted in one district to prevent removal to

another district where he had also been indicted). 22 Cf. Pollard v. United States, 352 U.S. 354 (1957); United States v. Ewell, 383

U.S. 116 (1966). See United States v. Provoo, 350 U.S. 857 (1955), aff’g 17 F.R.D.

183 (D. Md. 1955).

may result from delays between the time government discovers sufficient evidence to proceed against a suspect and the time of instituting those proceedings is guarded against by statutes of limitation, which represent a legislative judgment with regard to permissible periods of delay. 18 In two cases, the Court held that the

speedy trial guarantee had been violated by States which preferred

criminal charges against persons who were already incarcerated in

prisons of other jurisdictions following convictions on other charges

when those States ignored the defendants’ requests to be given

prompt trials and made no effort through requests to prison authorities to obtain custody of the prisoners for purposes of trial. 19

A state practice permitting the prosecutor to take nolle prosequi

with leave, which discharged the accused from custody but left him

subject at any time thereafter to prosecution at the discretion of

the prosecutor, the statute of limitations being tolled, was condemned as violative of the guarantee. 20

When the Right is Denied.—‘‘The right of a speedy trial is

necessarily relative. It is consistent with delays and depends upon

circumstances. It secures rights to a defendant. It does not preclude

the rights of public justice.’’ 21 No length of time is per se too long

to pass scrutiny under this guarantee, 22 but on the other hand nei-
AMENDMENT 6—RIGHTS OF ACCUSED 1403

23 United States v. Marion, 404 U.S. 307, 320 (1971); Barker v. Wingo, 407 U.S.

514, 536 (1972) (Justice White concurring).

24 Barker v. Wingo, 407 U.S. 514, 530 (1972). For the federal courts, Congress

under the Speedy Trial Act of 1974 imposed strict time deadlines, replacing the

Barker factors.

25 Barker v. Wingo, 407 U.S. 514, 531 (1972). Delays caused by the prosecution’s

interlocutory appeal will be judged by the Barker factors, of which the second—the

reason for the appeal—is the most important. United States v. Loud Hawk, 474 U.S.

302 (1986) (no denial of speedy trial, since prosecution’s position on appeal was

strong, and there was no showing of bad faith or dilatory purpose). If the interlocutory appeal is taken by the defendant, he must ‘‘bear the heavy burden of showing

an unreasonable delay caused by the prosecution [or] wholly unjustifiable delay by

the appellate court’’ in order to win dismissal on speedy trial grounds. Id. at 316.

26 Id. at 528. See generally id. at 523–29. Waiver is ‘‘an intentional relinquishment or abandonment of a known right or privilege,’’ Johnson v. Zerbst, 304 U.S.

458, 464 (1938), and it is not to be presumed but must appear from the record to

have been intelligently and understandingly made. Carnley v. Cochran, 369 U.S.

506, 516 (1962).

27 Barker v. Wingo, 407 U.S. 514, 532 (1972).

28Strunk v. United States, 412 U.S. 434 (1973). A trial court denial of a motion

to dismiss on speedy trial grounds is not an appealable order under the ‘‘collateral

order’’ exception to the finality rule. One must raise the issue on appeal from a conviction. United States v. MacDonald, 435 U.S. 850 (1977).

ther does the defendant have to show actual prejudice by delay. 23

The Court rather has adopted an ad hoc balancing approach. ‘‘We

can do little more than identify some of the factors which courts

should assess in determining whether a particular defendant has

been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’’ 24 The fact of delay triggers an inquiry and

is dependent on the circumstances of the case. Reasons for delay

will vary. A deliberate delay for advantage will weigh heavily,

whereas the absence of a witness would justify an appropriate

delay, and such factors as crowded dockets and negligence will fall

between these other factors. 25 It is the duty of the prosecution to

bring a defendant to trial, and the failure of the defendant to demand the right is not to be construed as a waiver of the right; 26

yet, the defendant’s acquiescence in delay when it works to his advantage should be considered against his later assertion that he

was denied the guarantee, and the defendant’s responsibility for

the delay would be conclusive. Finally, a court should look to the

possible prejudices and disadvantages suffered by a defendant during a delay. 27

A determination that a defendant has been denied his right to

a speedy trial results in a decision to dismiss the indictment or to

reverse a conviction in order that the indictment be dismissed. 28
1404 AMENDMENT 6—RIGHTS OF ACCUSED

29 In re Oliver, 333 U.S. 257, 266–70 (1948) (citations omitted). Other

panegyrics to the value of openness, accompanied with much historical detail, are

Gannett Co. v. DePasquale, 443 U.S. 368, 406, 411–33 (1979) (Justice Blackmun

concurring in part and dissenting in part); Richmond Newspapers v. Virginia, 448

U.S. 555, 564–73 (1980) (plurality opinion of Chief Justice Burger); id. at 589–97

(Justice Brennan concurring); Globe Newspaper Co. v. Superior Court, 457 U.S. 596,

603–07 (1982). 30 Estes v. Texas, 381 U.S. 532, 538–39 (1965); Richmond Newspapers v. Virginia, 448 U.S. 555, 569–73 (1980) (plurality opinion of Chief Justice Burger); id.

at 593–97 (Justice Brennan concurring). 31 In re Oliver, 333 U.S. 257 (1948); Levine v. United States, 362 U.S. 610

(1960). Both cases were contempt proceedings which were not then ‘‘criminal prosPublic Trial

‘‘This nation’s accepted practice of guaranteeing a public trial

to an accused has its roots in our English common law heritage.

The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient

institution of jury trial. In this country the guarantee to an accused

of the right to a public trial first appeared in a state constitution

in 1776. Following the ratification in 1791 of the Federal Constitution’s Sixth Amendment . . . most of the original states and those

subsequently admitted to the Union adopted similar constitutional

provisions. Today almost without exception every state by constitution, statute, or judicial decision, requires that all criminal trials

be open to the public.

‘‘The traditional Anglo-American distrust for secret trials has

been variously ascribed to the notorious use of this practice by the

Spanish Inquisition, to the excesses of the English Court of Star

Chamber, and to the French monarchy’s abuse of the letter de cachet. All of these institutions obviously symbolized a menace to liberty. . . . Whatever other benefits the guarantee to an accused that

his trial be conducted in public may confer upon our society, the

guarantee has always been recognized as a safeguard against any

attempt to employ our courts as instruments of persecution.’’ 29 The

purposes of the requirement of open trials are multiple: it helps to

assure the criminal defendant a fair and accurate adjudication of

guilt or innocence, it provides a public demonstration of fairness,

it discourages perjury, the misconduct of participants, and decisions based on secret bias or partiality. The Court has also expatiated upon the therapeutic value to the community of open trials to

enable the public to see justice done and the fulfillment of the urge

for retribution that people feel upon the commission of some kinds

of crimes. 30 Because of the near universality of the guarantee in

this country, the Supreme Court has had little occasion to deal

with the right. It is a right so fundamental that it is protected

against state deprivation by the due process clause, 31 but it is not
AMENDMENT 6—RIGHTS OF ACCUSED 1405

ecutions’’ to which the Sixth Amendment applied (for the modern rule see Bloom v.

Illinois, 391 U.S. 194 (1968)), so that the cases were wholly due process holdings.

Cf. Richmond Newspapers v. Virginia, 448 U.S. 555, 591 n.16 (1980) (Justice Brennan concurring). 32 Cf. Sheppard v. Maxwell, 384 U.S. 333 (1966); Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976). 33 Estes v. Texas, 381 U.S. 532 (1965). Cf. Nixon v. Warner Communications,

435 U.S. 589, 610 (1978). 34 Chandler v. Florida, 449 U.S. 560 (1981). 35Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (Press-Enterprise I). 36 467 U.S. 39 (1984). 37Waller v. Georgia, 467 U.S. 39, 47 (1984) (indicating that the Press-Enterprise

I standard governs such 6th Amendment cases). 38Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986) (Press-Enterprise II). 39Gannett Co. v. DePasquale, 443 U.S. 368 (1979).

so absolute that reasonable regulation designed to forestall prejudice from publicity and disorderly trials is foreclosed. 32 The banning of television cameras from the courtroom and the precluding

of live telecasting of a trial is not a denial of the right, 33 although

the Court does not inhibit televised trials under the proper circumstances. 34

The Court has borrowed from First Amendment cases in protecting the right to a public trial. Closure of trials or pretrial proceedings over the objection of the accused may be justified only if

the state can show ‘‘an overriding interest based on findings that

closure is essential to preserve higher values and is narrowly tailored to serve that interest.’’ 35 In Waller v. Georgia, 36 the Court

held that an accused’s Sixth Amendment rights had been violated

by closure of all 7 days of a suppression hearing in order to protect

persons whose phone conversations had been taped, when less than

21/2 hours of the hearing had been devoted to playing the tapes.

The need for openness at suppression hearings ‘‘may be particularly strong,’’ the Court indicated, due to the fact that the conduct

of police and prosecutor is often at issue. 37 However, an accused’s

Sixth Amendment-based request for closure must meet the same

stringent test applied to governmental requests to close proceedings: there must be ‘‘specific findings . . . demonstrating that first,

there is a substantial probability that the defendant’s right to a

fair trial will be prejudiced by publicity that closure would prevent,

and second, reasonable alternatives to closure cannot adequately

protect the defendant’s fair trial rights.’’ 38

The Sixth Amendment guarantee is apparently a personal

right of the defendant, which he may in some circumstances waive

in conjunction with the prosecution and the court. 39 The First

Amendment, however, has been held to protect public and press ac-
1406 AMENDMENT 6—RIGHTS OF ACCUSED

40 Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co.

v. Superior Court, 457 U.S. 596 (1982). See also Gannett Co. v. DePasquale, 443

U.S. 368, 397 (1979) (Justice Powell concurring). 41Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). See First Amendment discussion supra pp. 1105–08. 42 Historians no longer accept this attribution. Thayer, The Jury and Its Development, 5 HARV. L. REV. 249, 265 (1892), and the Court has noted this. Duncan v.

Louisiana, 391 U.S. 145, 151 n.16 (1968). 43W. FORSYTH, HISTORY OF TRIAL BY JURY (London: 1852). 44W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *349-*350 (T.

Cooley 4th ed. 1896). The other of the ‘‘two-fold barrier’’ was, of course, indictment

by grand jury.

cess to trials in all but the most extraordinary circumstances, 40

hence a defendant’s request for closure of his trial must be balanced against the public and press right of access. Before such a

request for closure will be honored, there must be ‘‘specific findings

. . . demonstrating that first, there is a substantial probability that

the defendant’s right to a fair trial will be prejudiced by publicity

that closure would prevent, and second, reasonable alternatives to

closure cannot adequately protect the defendant’s fair trial

rights.’’ 41

RIGHT TO TRIAL BY IMPARTIAL JURY

Jury Trial

By the time the United States Constitution and the Bill of

Rights were drafted and ratified, the institution of trial by jury was

almost universally revered, so revered that its history had been

traced back to Magna Carta. 42 The jury began in the form of a

grand or presentment jury with the role of inquest and was started

by Frankish conquerors to discover the King’s rights. Henry II regularized this type of proceeding to establish royal control over the

machinery of justice, first in civil trials and then in criminal trials.

Trial by petit jury was not employed at least until the reign of

Henry III, in which the jury was first essentially a body of witnesses, called for their knowledge of the case; not until the reign

of Henry VI did it become the trier of evidence. It was during the

Seventeenth Century that the jury emerged as a safeguard for the

criminally accused. 43 Thus, in the Eighteenth Century, Blackstone

could commemorate the institution as part of a ‘‘strong and twofold barrier . . . between the liberties of the people and the prerogative of the crown’’ because ‘‘the truth of every accusation . . . .

[must] be confirmed by the unanimous suffrage of twelve of his

equals and neighbors indifferently chosen and superior to all suspicion.’’ 44 The right was guaranteed in the constitutions of the

original 13 States, was guaranteed in the body of the Constitu-
AMENDMENT 6—RIGHTS OF ACCUSED 1407

45 In Art III, § 2. 46Duncan v. Louisiana, 391 U.S. 145, 153 (1968). 47Thompson v. Utah, 170 U.S. 343, 349–50 (1898), quoting 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1773 (1833). 48Duncan v. Louisiana, 391, U.S. 145, 155–56 (1968). At other times the function of accurate factfinding has been emphasized. E.g., McKeiver v. Pennsylvania,

403 U.S. 528, 543 (1971). While federal judges may comment upon the evidence, the

right to a jury trial means that the judge must make clear to the jurors that such

remarks are advisory only and that the jury is the final determiner of all factual

questions. Quercia v. United States, 289 U.S. 466 (1933). 49Duncan v. Louisiana, 391 U.S. 145, 158–59 (1968). 50 Id. at 159. Thus, state trials conducted before Duncan was decided were held

to be valid still. DeStefano v. Woods, 392 U.S. 631 (1968).

tion 45 and in the Sixth Amendment, and the constitution of every

State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases. 46 ‘‘Those who emigrated to this country from England brought with them this great

privilege ‘as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.’ ’’ 47

‘‘The guarantees of jury trial in the Federal and State Constitutions reflect 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. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against

judges too responsive to the voice of higher authority. The framers

of the constitutions strove to create an independent judiciary but

insisted upon further protection against arbitrary action. Providing

an accused with the right to be tried by a jury of his peers gave

him an inestimable safeguard against the corrupt overzealous prosecutor and against the compliant, biased, or eccentric judge. . . .

[T]he jury trial provisions . . . reflect a fundamental decision about

the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group

of judges. Fear of unchecked power . . . found expression in the

criminal law in this insistence upon community participation in the

determination of guilt or innocence.’’ 48

Because ‘‘a general grant of jury trial for serious offenses is a

fundamental right, essential for preventing miscarriages of justice

and for assuring that fair trials are provided for all defendants,’’

the Sixth Amendment provision is binding on the States through

the due process clause of the Fourteenth Amendment. 49 But inasmuch as it cannot be said that every criminal trial or any particular trial which is held without a jury is unfair, 50 it is possible for
1408 AMENDMENT 6—RIGHTS OF ACCUSED

51Patton v. United States, 281 U.S. 276 (1930). As with other waivers, this one

must be by the express and intelligent consent of the defendant. A waiver of jury

trial must also be with the consent of the prosecution and the sanction of the court.

A refusal by either the prosecution or the court to defendant’s request for consent

to waive denies him no right since he then gets what the Constitution guarantees,

a jury trial. Singer v. United States, 380 U.S. 24 (1965). It may be a violation of

defendant’s rights to structure the trial process so as effectively to encourage him

‘‘needlessly’’ to waive or to penalize the decision to go to the jury, but the standards

here are unclear. Compare United States v. Jackson, 390 U.S. 570 (1968), with

Brady v. United States, 397 U.S. 742 (1970), and McMann v. Richardson, 397 U.S.

759 (1970), and see also State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1971), cert. denied, 408 U.S. 942 (1972). 52Patton v. United States, 281 U.S. 276, 288 (1930). 53Thompson v. Utah, 170 U.S. 343 (1898). Dicta in other cases was to the same

effect. Maxwell v. Dow, 176 U.S. 581, 586 (1900); Rassmussen v. United States, 197

U.S. 516, 519 (1905; Patton v. United States, 281 U.S. 276, 288 (1930). 54 Andres v. United States, 333 U.S. 740 (1948). See dicta in Maxwell v. Dow,

176 U.S. 581, 586 (1900); Patton v. United States, 281 U.S. 276, 288 (1930). 55 Callan v. Wilson, 127 U.S. 540 (1888). Preserving Callan, as being based on

Article II, § 2, as well as on the Sixth Amendment and being based on a more burdensome procedure, the Court in Ludwig v. Massachusetts, 427 U.S. 618 (1976), approved a state two-tier system under which persons accused of certain crimes must

be tried in the first instance in the lower tier without a jury and if convicted may

appeal to the second tier for a trial de novo by jury. Applying a due process standard, the Court, in an opinion by Justice Blackmun, found that neither the imposition of additional financial costs upon a defendant, nor the imposition of increased

psychological and physical hardships of two trials, nor the potential of a harsher

sentence on the second trial impermissibly burdened the right to a jury trial. Justices Stevens, Brennan, Stewart, and Marshall dissented. Id. at 632. See also North

v. Russell, 427 U.S. 328 (1976). 56Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968); DeStefano v. Woods, 392

U.S. 631, 632–33 (1968). 57 399 U.S. 78 (1970). Justice Marshall would have required juries of 12 in both

federal and state courts, id. at 116, while Justice Harlan contended that the Sixth

Amendment required juries of 12, although his view of the due process standard

was that the requirement was not imposed on the States. Id. at 117.

a defendant to waive the right and go to trial before a judge

alone. 51

The Attributes of the Jury.—It was previously the position

of the Court that the right to a jury trial meant ‘‘a trial by jury

as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.’’ 52 It had therefore been

held that this included trial by a jury of 12 persons 53 who must

reach a unanimous verdict 54 and that the jury trial must be held

during the first court proceeding and not de novo at the first appellate stage. 55 However, as it extended the guarantee to the States,

the Court indicated that at least some of these standards were

open to re-examination,56 and in subsequent cases it has done so.

In Williams v. Florida, 57 the Court held that the fixing of jury size

at 12 was ‘‘a historical accident’’ which, while firmly established

when the Sixth Amendment was proposed and ratified, was not required as an attribute of the jury system, either as a matter of
AMENDMENT 6—RIGHTS OF ACCUSED 1409

58The development of 12 as the jury size is traced in Williams, 399 U.S. at 86–

92. 59 Id. at 92–99. While the historical materials were scanty, the Court thought

it more likely than not that the framers of the Bill of Rights did not intend to incorporate into the word ‘‘jury’’ all its common-law attributes. This conclusion was

drawn from the extended dispute between House and Senate over inclusion of a

‘‘vicinage’’ requirement in the clause, which was a common law attribute, and the

elimination of language attaching to jury trials their ‘‘accustomed requisites.’’ But

see id. at 123 n.9 (Justice Harlan).

60 Id. at 99–103. In Ballew v. Georgia, 435 U.S. 223 (1978), the Court unanimously, but with varying expressions of opinion, held that conviction by a unanimous five-person jury in a trial for a nonpetty offense deprived an accused of his

right to trial by jury. While readily admitting that the line between six and five

members is not easy to justify, the Justices believed that reducing a jury to five persons in nonpetty cases raised substantial doubts as to the fairness of the proceeding

and proper functioning of the jury to warrant drawing the line at six. 61 Apodaca v. Oregon, 406 U.S. 404 (1972), involved a trial held after decision

in Duncan v. Louisiana, 391 U.S. 145 (1968), and thus concerned whether the Sixth

Amendment itself required jury unanimity, while Johnson v. Louisiana, 406 U.S.

356 (1972), involved a pre-Duncan trial and thus raised the question whether due

process required jury unanimity. Johnson held, five-to-four, that the due process requirement of proof of guilt beyond a reasonable doubt was not violated by a conviction on a nine-to-three jury vote in a case in which punishment was necessarily at

hard labor.

common-law background 58 or by any ascertainment of the intent of

the framers. 59 Being bound neither by history nor framers’ intent,

the Court thought the ‘‘relevant inquiry . . . must be the function

that the particular feature performs and its relation to the purposes of the jury trial.’’ The size of the jury, the Court continued,

bore no discernable relationship to the purposes of jury trial—the

prevention of oppression and the reliability of factfinding. Furthermore, there was little reason to believe that any great advantage

accrued to the defendant by having a jury composed of 12 rather

than six, which was the number at issue in the case, or that the

larger number appreciably increased the variety of viewpoints on

the jury. A jury should be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a

fair possibility that a cross-section of the community will be represented on it, but the Court did not speculate whether there was

a minimum permissible size and it recognized the propriety of conditioning jury size on the seriousness of the offense. 60

When the unanimity rule was reconsidered, the division of the

Justices was such that different results were reached for state and

federal courts. 61 Applying the same type of analysis as that used

in Williams, four Justices acknowledged that unanimity was a common-law rule but observed for the reasons reviewed in Williams

that it seemed more likely than not that the framers of the Sixth

Amendment had not intended to preserve the requirement within

the term ‘‘jury.’’ Therefore, the Justices undertook a functional
1410 AMENDMENT 6—RIGHTS OF ACCUSED

62 Apodaca v. Oregon, 406 U.S. 404 (1972) (Justices White, Blackmun, and

Rehnquist, and Chief Justice Burger). Justice Blackmun indicated a doubt that any

closer division than nine-to-three in jury decisions would be permissible. Id. at 365. 63 Id. at 414, and Johnson v. Louisiana, 406 U.S. 356, 380, 395, 397, 399 (1972)

(Justices Douglas, Brennan, Stewart, and Marshall). 64 Id. at 366. Burch v. Louisiana, 441 U.S. 130 (1979), however, held that conviction by a non-unanimous six-person jury in a state criminal trial for a nonpetty

offense, under a provision permitting conviction by five out of six jurors, violated

the right of the accused to trial by jury. Acknowledging that the issue was ‘‘close’’

and that no bright line illuminated the boundary between permissible and impermissible, the Court thought the near-uniform practice throughout the Nation of requiring unanimity in six-member juries required nullification of the state policy. See

also Brown v. Louisiana, 447 U.S. 323 (1980) (Burch held retroactive). 65District of Columbia v. Clawans, 300 U.S. 617 (1937); Schick v. United States,

195 U.S. 65 (1904); Callan v. Wilson, 127 U.S. 540 (1888). 66District of Columbia v. Colts, 282 U.S. 63 (1930). 67Duncan v. Louisiana, 391 U.S. 145, 159–62 (1968); Dyke v. Taylor Implement

Mfg. Co., 391 U.S. 216 (1968).

analysis of the jury and could not discern that the requirement of

unanimity materially affected the role of the jury as a barrier

against oppression and as a guarantee of a commonsense judgment

of laymen. The Justices also determined that the unanimity requirement is not implicated in the constitutional requirement of

proof beyond a reasonable doubt, and is not necessary to preserve

the feature of the requisite cross-section representation on the

jury. 62 Four dissenting Justices thought that omitting the unanimity requirement would undermine the reasonable doubt standard,

would permit a majority of jurors simply to ignore those interpreting the facts differently, and would permit oppression of dissenting

minorities. 63 Justice Powell, on the other hand, thought that unanimity was mandated in federal trials by history and precedent and

that it should not be departed from; however, because it was the

due process clause of the Fourteenth Amendment which imposed

the basic jury-trial requirement on the States, he did not believe

that it was necessary to impose all the attributes of a federal jury

on the States. He therefore concurred in permitting less-than-unanimous verdicts in state courts. 64

Criminal Proceedings to Which the Guarantee Applies.—

Although the Sixth Amendment provision does not differentiate

among types of criminal proceedings in which the right to a jury

trial is or is not present, the Court has always excluded petty offenses from the guarantee in federal courts, defining the line between petty and serious offenses either by the maximum punishment available 65 or by the nature of the offense. 66 This line has

been adhered to in the application of the Sixth Amendment to the

States 67 and the Court has now held ‘‘that no offense can be

deemed ‘petty’ for purposes of the right to trial by jury where im-
AMENDMENT 6—RIGHTS OF ACCUSED 1411

68 Baldwin v. New York, 399 U.S. 66, 69 (1970). Justices Black and Douglas

would have required a jury trial in all criminal proceedings in which the sanction

imposed bears the indicia of criminal punishment. Id. at 74 (concurring); Cheff v.

Schnackenberg, 384 U.S. 373, 384, 386 (1966) (dissenting). Chief Justice Burger and

Justices Harlan and Stewart objected to setting this limitation at six months for the

States, preferring to give them greater leeway. Baldwin, supra, at 76; Williams v.

Florida, 399 U.S. 78, 117, 143 (1970) (dissenting). No jury trial was required when

the trial judge suspended sentence and placed defendant on probation for three

years. Frank v. United States, 395 U.S. 147 (1969). There is a presumption that offenses carrying a maximum imprisonment of six months or less are ‘‘petty,’’ although it is possible that such an offense could be pushed into the ‘‘serious’’ category

if the legislature tacks on onerous penalties not involving incarceration. No jury

trial is required, however, when the maximum sentence is six months in jail, a fine

not to exceed $1,000, a 90-day driver’s license suspension, and attendance at an alcohol abuse education course. Blanton v. City of North Las Vegas, 489 U.S. 538,

542–44 (1989). 69 United States v. Zucker, 161 U.S. 475, 481 (1896). 70 Id. See also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909);

Hepner v. United States, 213 U.S. 103 (1909). 71Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). 72 E.g., Green v. United States, 356 U.S. 165, 183–87 (1958), and cases cited;

United States v. Burnett, 376 U.S. 681, 692–700 (1964), and cases cited. A Court

plurality in Cheff v. Schnackenberg, 384 U.S. 373 (1966), held, asserting the Court’s

supervisory power over the lower federal courts, that criminal contempt sentences

in excess of six months imprisonment could not be imposed without a jury trial or

adequate waiver. 73 391 U.S. 194, 198 (1968). Justices Harlan and Stewart dissented. Id. at 215.

As in other cases, the Court drew the line between serious and petty offenses at

six months, but because, unlike other offenses, no maximum punishments are usually provided for contempts it indicated the actual penalty imposed should be looked

to. Id. at 211. And see Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968).

prisonment for more than six months is authorized.’’ 68 The Court

has also made some changes in the meaning attached to the term

‘‘criminal proceeding.’’ Previously, it had been applied only to situations in which a person has been accused of an offense by information or presentment. 69 Thus, a civil action to collect statutory penalties and punitive damages, because not technically criminal, has

been held to implicate no right to jury trial. 70 But more recently

the Court has held denationalization to be punishment which Congress may not impose without adhering to the guarantees of the

Fifth and Sixth Amendments, 71 and the same type of analysis

could be used with regard to other sanctions. In a long line of

cases, the Court had held that no constitutional right to jury trial

existed in trials of criminal contempt. 72 But in Bloom v. Illinois, 73

the Court announced that ‘‘[o]ur deliberations have convinced us

. . . that serious contempts are so nearly like other serious crimes

that they are subject to the jury trial provisions of the Constitution

. . . and that the traditional rule is constitutionally infirm insofar

as it permits other than petty contempts to be tried without honoring a demand for a jury trial.’’ At least in state systems and probably in the federal system as well, there is no constitutional right
1412 AMENDMENT 6—RIGHTS OF ACCUSED

74McKeiver v. Pennsylvania, 403 U.S. 528 (1971). 75Spaziano v. Florida, 468 U.S. 447, 459 (1984). 76 Hildwin v. Florida, 490 U.S. 638, 640–41 (1989) (per curiam) (‘‘the Sixth

Amendment does not require that the specific findings authorizing the imposition

of the sentence of death be made by the jury’’); Clemons v. Mississippi, 494 U.S.

738 (1990) (appellate court may reweigh aggravating and mitigating factors and uphold imposition of death penalty even though jury relied on an invalid aggravating

factor); Walton v. Arizona, 497 U.S. 639 (1990) (judge may make requisite findings

as to existence of aggravating and mitigating circumstances). 77 Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965);

Parker v. Gladden, 385 U.S. 363 (1966); Witherspoon v. Illinois, 391 U.S. 510 (1968);

Gonzales v. Beto, 405 U.S. 1052 (1972). 78Thus, it violates the Equal Protection Clause to exclude African Americans

from grand and petit juries, Strauder v. West Virginia, 100 U.S. 303 (1880); Alexander v. Louisiana, 405 U.S. 625 (1972), whether defendant is or is not an African

American, Peters v. Kiff, 407 U.S. 493 (1972), and exclusion of potential jurors because of their national ancestry is unconstitutional, at least where defendant is of

that ancestry as well, Hernandez v. Texas, 347 U.S. 475 (1954); Castaneda v.

Partida, 430 U.S. 482 (1977). 79 In the exercise of its supervisory power over the federal courts, the Court has

permitted any defendant to challenge the arbitrary exclusion from jury service of

his own or any other class. Glasser v. United States, 315 U.S. 60, 83–87 (1942);

Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946); Ballard v. United States,

329 U.S. 187 (1946). In Taylor v. Louisiana, 419 U.S. 522 (1975), and Duren v. Missouri, 439 U.S. 357 (1979), male defendants were permitted to challenge the exclusion of women as a Sixth Amendment violation. 80Turner v. Louisiana, 379 U.S. 466 (1965). 81Taylor v. Louisiana, 419 U.S. 522, 528 (1975). See also Williams v. Florida,

399 U.S. 78, 100 (1970); Brown v. Allen, 344 U.S. 443, 474 (1953). In Fay v. New

York, 332 U.S. 261 (1947), and Moore v. New York, 333 U.S. 565 (1948), the Court

in 5-to–4 decisions upheld state use of ‘‘blue ribbon’’ juries from which particular

groups, such as laborers and women, had been excluded. With the extension of the

jury trial provision and its fair cross section requirement to the States, the opinions

in these cases must be considered tenuous, but the Court has reiterated that defendants are not entitled to a jury of any particular composition. Taylor, supra, at 538.

to a jury trial in juvenile proceedings. 74 In capital cases there is

no requirement that a jury impose the death penalty 75 or make the

factual findings upon which a death sentence must rest. 76

Impartial Jury

Impartiality as a principle of the right to trial by jury is served

not only by the Sixth Amendment, which is as applicable to the

States as to the Federal Government, 77 but as well by the due

process and equal protection clauses of the Fourteenth, 78 and perhaps the due process clause of the Fifth Amendment, and the

Court’s supervisory power has been directed to the issue in the federal system. 79 Prior to the Court’s extension of a right to jury trials

in state courts, it was firmly established that if a State chose to

provide juries they must be impartial ones. 80

Impartiality is a two-fold requirement. First, ‘‘the selection of

a petit jury from a representative cross section of the community

is an essential component of the Sixth Amendment.’’ 81 This re-
AMENDMENT 6—RIGHTS OF ACCUSED 1413

Congress has implemented the constitutional requirement by statute in federal

courts by the Federal Jury Selection and Service Act of 1968, Pub. L. No. 90–274,

82 Stat. 53, 28 U.S.C. §§ 1861 et seq. 82Lockhart v. McCree, 476 U.S. 162 (1986). ‘‘We have never invoked the fair

cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or

venires, to reflect the composition of the community at large.’’ 476 U.S. at 173. The

explanation is that the fair cross-section requirement ‘‘is a means of assuring, not

a representative jury (which the Constitution does not demand), but an impartial

one (which it does).’’ Holland v. Illinois, 493 U.S. 474, 480 (1990) (emphasis original).83Duren v. Missouri, 439 U.S. 357, 364 (1979). 84Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357

(1979). 85 Castaneda v. Partida, 430 U.S. 482 (1977) (Mexican-American defendant successfully made out prima facie case of intentional exclusion of persons of his ethnic

background by showing a substantial underrepresentation of Mexican-Americans

based on a comparison of the group’s proportion in the total population of eligible

jurors to the proportion called, and this in the face of the fact that Mexican-Americans controlled the selection process). 86Frazier v. United States, 335 U.S. 497 (1948); Dennis v. United States, 339

U.S. 162 (1950). On common-law grounds, the Court in Crawford v. United States,

212 U.S. 183 (1909), disqualified such employees, but a statute removing the disqualification because of the increasing difficulty in finding jurors in the District of

Columbia was sustained in United States v. Wood, 299 U.S. 123 (1936).

quirement applies only to jury panels or venires from which petit

juries are chosen, and not to the composition of the petit juries

themselves. 82 ‘‘In order to establish a prima facie violation of the

fair-cross-section requirement, the defendant must show (1) that

the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from

which juries are selected is not fair and reasonable in relation to

the number of such persons in the community; and (3) that this

underrepresentation is due to systematic exclusion of the group in

the jury-selection process.’’ 83 Thus, in one case the Court voided a

selection system under which no woman would be called for jury

duty unless she had previously filed a written declaration of her

desire to be subject to service, and, in another it invalidated a state

selection system granting women who so requested an automatic

exemption from jury service. 84 While disproportion alone is insufficient to establish a prima facie showing of unlawful exclusion, a

statistical showing of disparity combined with a demonstration of

the easy manipulability of the selection process can make out a

prima facie case. 85

Second, there must be assurance that the jurors chosen are unbiased, i.e., willing to decide the case on the basis of the evidence

presented. The Court has held that in the absence of an actual

showing of bias, a defendant in the District of Columbia is not denied an impartial jury when he is tried before a jury composed primarily of government employees. 86 A violation of a defendant’s
1414 AMENDMENT 6—RIGHTS OF ACCUSED

87 Remmer v. United States, 350 U.S. 377 (1956) (attempted bribe of a juror reported by him to authorities); Smith v. Phillips, 455 U.S. 209 (1982) (during trial

one of the jurors had been actively seeking employment in the District Attorney’s

office). 88 E.g., Irvin v. Dowd, 366 U.S. 717 (1961); Sheppard v. Maxwell, 384 U.S. 333

(1966). Exposure of the jurors to knowledge about the defendant’s prior criminal

record and activities is not alone sufficient to establish a presumption of reversible

prejudice, but on voir dire jurors should be questioned about their ability to judge

impartially. Murphy v. Florida, 421 U.S. 794 (1975). The Court indicated that under

the same circumstances in a federal trial it would have overturned the conviction

pursuant to its supervisory power. Id. at 797–98, citing Marshall v. United States,

360 U.S. 310 (1959). Essentially, the defendant must make a showing of prejudice

which the court then may inquire into. Chandler v. Florida, 449 U.S. 560, 575, 581

(1981); Smith v. Phillips, 455 U.S. 209, 215–18 (1982); Patton v. Yount, 467 U.S.

1025 (1984). 89 Remmer v. United States, 347 U.S. 227 (1954). See Turner v. Louisiana, 379

U.S. 466 (1965) (placing jury in charge of two deputy sheriffs who were principal

prosecution witnesses at defendant’s jury trial denied him his right to an impartial

jury); Parker v. Gladden, 385 U.S. 363 (1966) (influence on jury by prejudiced bailiff). Cf. Gonzales v. Beto, 405 U.S. 1052 (1972). 90 Irvin v. Dowd, 366 U.S. 717 (1961) (felony); Groppi v. Wisconsin, 400 U.S. 505

(1971) (misdemeanor). 91Frank v. Mangum, 237 U.S. 309 (1915); Irvin v. Dowd, 366 U.S. 717 (1961);

Sheppard v. Maxwell, 384 U.S. 333 (1966). 92 Jackson v. Denno, 378 U.S. 368 (1964) (overruling Stein v. New York, 346

U.S. 156 (1953)).

right to an impartial jury does occur, however, when the jury or

any of its members is subjected to pressure or influence which

could impair freedom of action; the trial judge should conduct a

hearing in which the defense participates to determine whether impartiality has been undermined. 87 Exposure of the jury to possibly

prejudicial material and disorderly courtroom activities may deny

impartiality and must be inquired into. 88 Private communications,

contact, or tampering with a jury, or the creation of circumstances

raising the dangers thereof, is not to be condoned. 89 When the locality of the trial has been saturated with publicity about a defendant, so that it is unlikely that he can obtain a disinterested jury,

he is constitutionally entitled to a change of venue. 90 It is undeniably a violation of due process to subject a defendant to trial in an

atmosphere of mob or threatened mob domination. 91

Because it is too much to expect that jurors can remain

uninfluenced by evidence they receive even though they are instructed to use it for only a limited purpose and to disregard it for

other purposes, the Court will not permit a confession to be submitted to the jury without a prior determination by the trial judge that

it is admissible. A defendant is denied due process, therefore, if he

is convicted by a jury that has been instructed to first determine

the voluntariness of a confession and then to disregard the confession if it is found to be inadmissible. 92 Similarly invalid is a jury

instruction in a joint trial to consider a confession only with regard
AMENDMENT 6—RIGHTS OF ACCUSED 1415

93 Bruton v. United States, 391 U.S. 123 (1968) (overruling Delli Paoli v. United

States, 352 U.S. 232 (1957)). The rule applies to the States. Roberts v. Russell, 392

U.S. 293 (1968). But see Nelson v. O’Neil, 402 U.S. 622 (1971) (co-defendant’s outof-court statement is admissible against defendant if co-defendant takes the stand

and denies having made the statement). 94 391 U.S. 510 (1968). 95 Id. at 519, 521, 523. The Court thought the problem went only to the issue

of the sentence imposed and saw no evidence that a jury from which death scrupled

persons had been excluded was more prone to convict than were juries on which

such person sat. Cf. Bumper v. North Carolina, 391 U.S. 543, 545 (1968). The

Witherspoon case was given added significance when in Woodson v. North Carolina,

428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), the Court held

mandatory death sentences unconstitutional and ruled that the jury as a representative of community mores must make the determination as guided by legislative

standards. See also Adams v. Texas, 448 U.S. 38 (1980) (holding Witherspoon applicable to bifurcated capital sentencing procedures and voiding a statute permitting

exclusion of any juror unable to swear that the existence of the death penalty would

not affect his deliberations on any issue of fact). 96Morgan v. Illinois, 112 S. Ct. 2222 (1992). 97Wainwright v. Witt, 469 U.S. 412, 424 (1985), (quoting Adams v. Texas, 448

U.S. 38, 45 (1980)). 98Wainwright v. Witt, 469 U.S. at 424. Accord, Darden v. Wainwright, 477 U.S.

168 (appropriateness of exclusion should be determined by context, including excluded juror’s understanding based on previous questioning of other jurors). 99Lockhart v. McCree, 476 U.S. 162 (1986).

to the defendant against whom it is admissible, and to disregard

that confession as against a co-defendant which it implicates. 93

In Witherspoon v. Illinois, 94 the Court held that the exclusion

in capital cases of jurors conscientiously scrupled about capital

punishment, without inquiring whether they could consider the imposition of the death penalty in the appropriate case, violated a defendant’s constitutional right to an impartial jury. Inasmuch as the

jury is given broad discretion whether or not to fix the penalty at

death, the Court ruled, the jurors must reflect ‘‘the conscience of

the community’’ on the issue, and the automatic exclusion of all

scrupled jurors ‘‘stacked the deck’’ and made of the jury a tribunal

‘‘organized to return a verdict of death.’’ 95 A court may not refuse

a defendant’s request to examine potential jurors to determine

whether they would vote automatically to impose the death penalty; general questions about fairness and willingness to follow the

law are inadequate. 96

The proper standard for exclusion is ‘‘whether the juror’s views

would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ’’ 97

Thus the juror need not indicate that he would ‘‘automatically’’ vote

against the death penalty, and his ‘‘bias [need not] be proved with

‘unmistakable clarity.’ ’’ 98 Persons properly excludable under

Witherspoon may also be excluded from the guilt/innocence phase

of a bifurcated capital trial. 99 It had been argued that to exclude

such persons from the guilt/innocence phase would result in a jury
1416 AMENDMENT 6—RIGHTS OF ACCUSED

100 476 U.S. at 183. 101 Id. at 180. 102 Buchanan v. Kentucky, 483 U.S. 402 (1987). 103Gray v. Mississippi, 481 U.S. 648 (1987). 104 Ross v. Oklahoma, 487 U.S. 81 (1987). 105 Id. at 86, 87. 106Lewis v. United States, 146 U.S. 370 (1892); Pointer v. United States, 151

U.S. 396 (1894). 107 Reynolds v. United States, 98 U.S. 145 (1879). See Witherspoon v. Illinois,

391 U.S. 510, 513–15, 522 n.21 (1968).

somewhat more predisposed to convict, and that this would deny

the defendant a jury chosen from a fair cross-section. The Court rejected this, concluding that ‘‘it is simply not possible to define jury

impartiality . . . by reference to some hypothetical mix of individual viewpoints.’’ 100 Moreover, the state has ‘‘an entirely proper interest in obtaining a single jury that could impartially decide all

of the issues in [a] case,’’ and need not select separate panels and

duplicate evidence for the two distinct but interrelated functions. 101 For the same reasons, there is no violation of the right to

an impartial jury if a defendant for whom capital charges have

been dropped is tried, along with a codefendant still facing capital

charges, before a ‘‘death qualified’’ jury. 102

Exclusion of one juror qualified under Witherspoon constitutes

reversible error, and the exclusion may not be subjected to harmless error analysis. 103 However, a court’s error in refusing to dismiss for cause a prospective juror prejudiced in favor of the death

penalty does not deprive a defendant of his right to trial by an impartial jury if he is able to exclude the juror through exercise of

a peremptory challenge. 104 The relevant inquiry is ‘‘on the jurors

who ultimately sat,’’ the Court declared, rejecting as overly broad

the assertion in Gray that the focus instead should be on ‘‘‘whether

the composition of the jury panel as a whole could have been affected by the trial court’s error.’ ’’ 105

It is the function of the voir dire to give the defense and the

prosecution the opportunity to inquire into, or have the trial judge

inquire into, possible grounds of bias or prejudice that potential jurors may have, and to acquaint the parties with the potential jurors. 106 It is good ground for challenge for cause that a juror has

formed an opinion on the issue to be tried, but not every opinion

which a juror may entertain necessarily disqualifies him. The judge

must determine whether the nature and strength of the opinion

raise a presumption against impartiality. 107 It suffices for the

judge to question potential jurors about their ability to put aside

what they had heard or read about the case, listen to the evidence

with an open mind, and render an impartial verdict; the judge’s refusal to go further and question jurors about the contents of news
AMENDMENT 6—RIGHTS OF ACCUSED 1417

108Mu’Min v. Virginia, 500 U.S. 415 (1991). 109 Ham v. South Carolina, 409 U.S. 524 (1973). 110Turner v. Murray, 476 U.S. 28 (1986). The quote is from a section of Justice

White’s opinion not adopted as opinion of the Court. Id. at 35. 111 Ristaino v. Ross, 424 U.S. 589 (1976). The Court noted that under its supervisory power it would require a federal court faced with the same circumstances to

propound appropriate questions to identify racial prejudice if requested by the defendant. Id. at 597 n.9. See Aldridge v. United States, 283 U.S. 308 (1931). But see

Rosales-Lopez v. United States, 451 U.S. 182 (1981), in which the trial judge refused

a defense request to inquire about possible bias against Mexicans. A plurality apparently adopted a rule that, all else being equal, the judge should necessarily inquire about racial or ethnic prejudice only in cases of violent crimes in which the

defendant and victim are members of different racial or ethnic groups, id. at 192,

a rule rejected by two concurring Justices. Id. at 194. Three dissenting Justices

thought the judge must always ask when defendant so requested. Id. at 195. 112 Cf. Stilson v. United States, 250 U.S. 583, 586 (1919), an older case holding

that it is no violation of the guarantee to limit the number of peremptory challenges

to each defendant in a multi-party trial. 113 380 U.S. 202 (1965). 114 476 U.S. 79 (1986).

reports to which they had been exposed did not violate the Sixth

Amendment. 108 Under some circumstances, it may be constitutionally required that questions specifically directed to the existence of racial bias must be asked. Thus, in a situation in which defendant, a black man, alleged that he was being prosecuted on false

charges because of his civil rights activities in an atmosphere perhaps open to racial appeals, prospective jurors must be asked about

their racial prejudice, if any. 109 A similar rule applies in some capital trials, where the risk of racial prejudice ‘‘is especially serious

in light of the complete finality of the death sentence.’’ A defendant

accused of an interracial capital offense is entitled to have prospective jurors informed of the victim’s race and questioned as to racial

bias. 110 But in circumstances not suggesting a significant likelihood of racial prejudice infecting a trial, as when the facts are

merely that the defendant is black and the victim white, the Constitution is satisfied by a more generalized but thorough inquiry

into the impartiality of the veniremen. 111

Although government is not constitutionally obligated to allow

peremptory challenges, typically a system of peremptory challenges

has existed in criminal trials, in which both prosecution and defense may, without stating any reason, excuse a certain number of

prospective jurors. 112 While, in Swain v. Alabama, 113 the Court

held that a prosecutor’s purposeful exclusion of members of a specific racial group from the jury would violate the Equal Protection

Clause, it posited so difficult a standard of proof that defendants

could seldom succeed. The Swain standard of proof was relaxed in

Batson v. Kentucky, 114 with the result that a defendant may now

establish an equal protection violation resulting from a prosecutor’s
1418 AMENDMENT 6—RIGHTS OF ACCUSED

115See discussion under ‘‘Equal Protection and Race,’’ infra p. 1839. 116Powers v. Ohio, 499 U.S. 400 (1991) (defendant has standing to raise equal

protection rights of excluded juror of different race). 117 493 U.S. 474 (1990). But see Trevino v. Texas, 112 S. Ct. 1547 (1992) (claim

of Sixth Amendment violation resulting from racially discriminatory use of peremptory challenges treated as sufficient to raise equal protection claim under Swain and

Batson). 118 493 U.S. at 487. 119 Id. at 484. As a consequence, a defendant who uses a peremptory challenge

to correct the court’s error in denying a for-cause challenge may have no Sixth

Amendment cause of action. Peremptory challenges ‘‘are a means to achieve the end

of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the

Sixth Amendment was violated.’’ Ross v. Oklahoma, 487 U.S. 81, 88 (1987). Similarly, there is no due process violation, at least where state statutory law requires

use of peremptory challenges to cure erroneous refusals by the court to excuse jurors

for cause. ‘‘It is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise.’’ Id. 120Georgia v. McCollum, 112 S. Ct. 2348 (1992). 121 Id. at 2358. 122 Id. at 2358–59.

use of peremptory challenges to systematically exclude blacks from

the jury. 115 A violation can occur whether or not the defendant and

the excluded jurors are of the same race. 116 Racially discriminatory

use of peremptory challenges does not, however, constitute a violation of the Sixth Amendment, the Court ruled in Holland v. Illinois. 117 The Sixth Amendment ‘‘no more forbids the prosecutor to

strike jurors on the basis of race than it forbids him to strike them

on the basis of innumerable other generalized characteristics.’’ 118

To rule otherwise, the Court reasoned, ‘‘would cripple the device of

peremptory challenge’’ and thereby undermine the Amendment’s

goal of ‘‘impartiality with respect to both contestants.’’ 119

The restraint on racially discriminatory use of peremptory

challenges is now a two-way street. The Court ruled in 1992 that

a criminal defendant’s use of peremptory challenges to exclude jurors on the basis of race constitutes ‘‘state action’’ in violation of

the Equal Protection Clause. 120 Disputing the contention that this

limitation would undermine ‘‘the contribution of the peremptory

challenge to the administration of justice,’’ the Court nonetheless

asserted that such a result would in any event be ‘‘too high’’ a price

to pay. ‘‘It is an affront to justice to argue that a fair trail includes

the right to discriminate against a group of citizens based upon

their race.’’ 121 It followed, therefore, that the limitation on peremptory challenges does not violate a defendant’s right to an impartial

jury. While a defendant has ‘‘the right to an impartial jury that can

view him without racial animus,’’ this means that ‘‘there should be

a mechanism for removing those [jurors] who would be incapable

of confronting and suppressing their racism,’’ not that the defendant may remove jurors on the basis of race or racial stereotypes. 122
AMENDMENT 6—RIGHTS OF ACCUSED 1419

123 ‘‘The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;

and such Trial shall be held in the State where the said Crime shall have been committed; but when not committed within any State, the Trial shall be at such Place

or Places as the Congress may by law have directed.’’ 124 ‘‘Vicinage’’ means neighborhood, and ‘‘vicinage of the jury’’ means jury of the

neighborhood or, in medieval England, jury of the County. 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *350–351 (T. Cooley 4th ed. 1899). See 3 J.

STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1775–85

(1833). 125The controversy is conveniently summarized in Williams v. Florida, 399 U.S.

78, 92–96 (1970). 126 Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96, 101 (1888). 127Salinger v. Loisel, 265 U.S. 224 (1924). 128 Beavers v. Henkel, 194 U.S. 73, 83 (1904). For some more recent controversies about the place of the commission of the offense, see United States v. Cores,

356 U.S. 405 (1958), and Johnston v. United States, 351 U.S. 215 (1956). 129 Brown v. Elliott, 225 U.S. 392 (1912); Hyde v. United States, 225 U.S. 347

(1912); Haas v. Henkel, 216 U.S. 462 (1910). 130 Burton v. United States, 202 U.S. 344 (1906). 131 Armour Packing Co. v. United States, 209 U.S. 56 (1908). 132 United States v. Johnson, 323 U.S. 273, 274 (1944).

PLACE OF TRIAL—JURY OF THE VICINAGE

Article III, § 2 requires that federal criminal cases be tried by

jury in the State and district in which the offense was committed, 123 but much criticism arose over the absence of any guarantee

that the jury be drawn from the ‘‘vicinage’’ or neighborhood of the

crime. 124 Madison’s efforts to write into the Bill of Rights an express vicinage provision were rebuffed by the Senate, and the

present language was adopted as a compromise. 125 The provisions

limit the Federal Government only. 126

An accused cannot be tried in one district under an indictment

showing that the offense was committed in another; 127 the place

where the offense is charged to have been committed determines

the place of trial. 128 In a prosecution for conspiracy, the accused

may be tried in any State and district where an overt act was performed. 129 Where a United States Senator was indicted for agreeing to receive compensation for services to be rendered in a proceeding before a government department, and it appeared that a

tentative arrangement for such services was made in Illinois and

confirmed in St. Louis, the defendant was properly tried in St.

Louis, although he was not physically present in Missouri when notice of ratification was dispatched. 130 The offense of obtaining

transportation of property in interstate commerce at less than the

carrier’s published rates, 131 or the sending of excluded matter

through the mails, 132 may be made triable in any district through

which the forbidden transportation is conducted. By virtue of a presumption that a letter is delivered in the district to which it is addressed, the offense of scheming to defraud a corporation by mail
1420 AMENDMENT 6—RIGHTS OF ACCUSED

133 Hagner v. United States, 285 U.S. 427, 429 (1932). 134 United States ex rel. Hughes v. Gault, 271 U.S. 142 (1926). Cf. Tinsley v.

Treat, 205 U.S. 20 (1907); Beavers v. Henkel, 194 U.S. 73, 84 (1904). 135Lamar v. United States, 241 U.S. 103 (1916). 136 Jones v. United States, 137 U.S. 202, 211 (1890); United States v. Dawson,

56 U.S. (15 How.) 467, 488 (1853). 137 Cook v. United States, 138 U.S. 157, 182 (1891). See also United States v.

Socony-Vacuum Oil Co., 310 U.S. 150, 250–54 (1940); United States v. Johnson, 323

U.S. 273 (1944). 138 United States v. Cruikshank, 92 U.S. 542, 544, 558 (1876); United States v.

Simmons, 96 U.S. 360 (1878); Bartell v. United States, 227 U.S. 427 (1913); Burton

v. United States, 202 U.S. 344 (1906). 139Potter v. United States, 155 U.S. 438, 444 (1894). 140 United States v. Carll, 105 U.S. 611 (1882). 141 United States v. Cook, 84 U.S. (17 Wall.) 168, 174 (1872).

was held to have been committed in that district although the letter was posted elsewhere. 133 The Constitution does not require any

preliminary hearing before issuance of a warrant for removal of an

accused to the court having jurisdiction of the charge. 134 The assignment of a district judge from one district to another, conformably to statute, does not create a new judicial district whose boundaries are undefined nor subject the accused to trial in a district not

established when the offense with which he is charged was committed. 135 For offenses against federal laws not committed within any

State, Congress has the sole power to prescribe the place of trial;

such an offense is not local and may be tried at such place as Congress may designate. 136 The place of trial may be designated by

statute after the offense has been committed. 137

NOTICE OF ACCUSATION

The constitutional right to be informed of the nature and cause

of the accusation entitles the defendant to insist that the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge. 138 No indictment is sufficient if it does not allege all of the ingredients that

constitute the crime. Where the language of a statute is, according

to the natural import of the words, fully descriptive of the offense,

it is sufficient if the indictment follows the statutory phraseology, 139 but where the elements of the crime have to be ascertained

by reference to the common law or to other statutes, it is not sufficient to set forth the offense in the words of the statute. The facts

necessary to bring the case within the statutory definition must

also be alleged. 140 If an offense cannot be accurately and clearly

described without an allegation that the accused is not within an

exception contained in the statutes, an indictment which does not

contain such allegation is defective. 141 Despite the omission of obscene particulars, an indictment in general language is good if the
AMENDMENT 6—RIGHTS OF ACCUSED 1421

142 Rosen v. United States, 161 U.S. 29, 40 (1896). 143 United States v. Van Duzee, 140 U.S. 169, 173 (1891). 144 In re Oliver, 333 U.S. 257, 273 (1948); Cole v. Arkansas, 333 U.S. 196, 201

(1948); Rabe v. Washington, 405 U.S. 313 (1972). 145Mattox v. United States, 156 U.S. 237, 242–43 (1895). 146Kirby v. United States, 174 U.S. 47, 55, 56 (1899). Cf. Pointer v. Texas, 380

U.S. 400, 404–05 (1965). The right may be waived but it must be a knowing, intelligent waiver uncoerced from defendant. Brookhart v. Janis, 384 U.S. 1 (1966). 147Pointer v. Texas, 380 U.S. 400 (1965) (overruling West v. Louisiana, 194 U.S.

258 (1904)); see also Stein v. New York, 346 U.S. 156, 195–96 (1953). 148 Hearsay is the prior out-of-court statements of a person, offered affirmatively

for the truth of the matters asserted, presented at trial either orally by another person or in written form. Hickory v. United States, 151 U.S. 303, 309 (1894); Southern

Ry. v. Gray, 241 U.S. 333, 337 (1916); Bridges v. Wixon, 326 U.S. 135 (1945). 149Thus, while it had concluded that the co-conspirator exception to the hearsay

rule was consistent with the Confrontation Clause, Delaney v. United States, 263

U.S. 586, 590 (1924), the Court’s formulation of the exception and its limitations

was pursuant to its supervisory powers. Lutwak v. United States, 344 U.S. 604

(1953); Krulewitch v. United States, 336 U.S. 440 (1949).

unlawful conduct is described so as reasonably to inform the accused of the nature of the charge sought to be established against

him. 142 The Constitution does not require the Government to furnish a copy of the indictment to an accused. 143 The right to notice

of accusation is so fundamental a part of procedural due process

that the States are required to observe it. 144

CONFRONTATION

‘‘The primary object of the constitutional provision in question

was to prevent depositions of ex parte affidavits . . . being used

against the prisoner in lieu of a personal examination and crossexamination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience

of the witness, but of compelling him to stand face to face with the

jury in order that they may look at him, and judge by his demeanor

upon the stand and the manner in which he gives his testimony

whether he is worthy of belief’’ 145 The right of confrontation is

‘‘[o]ne of the fundamental guarantees of life and liberty . . . long

deemed so essential for the due protection of life and liberty that

it is guarded against legislative and judicial action by provisions in

the Constitution of the United States and in the constitutions of

most if not of all the States composing the Union.’’ 146 Before 1965,

when the Court held the right to be protected against state abridgment, 147 it had little need to clarify the relationship between the

right of confrontation and the hearsay rule, 148 inasmuch as its supervisory powers over the inferior federal courts permitted it to

control the admission of hearsay on this basis. 149 Thus, on the

basis of the Confrontation Clause, it had concluded that evidence

given at a preliminary hearing could not be used at the trial if the
1422 AMENDMENT 6—RIGHTS OF ACCUSED

150Motes v. United States, 178 U.S. 458 (1900). 151 Reynolds v. United States, 98 U.S. 145 (1879). 152Kirby v. United States, 174 U.S. 47, 61 (1899); Robertson v. Baldwin, 165

U.S. 275, 282 (1897). 153Mattox v. United States, 156 U.S. 237, 240 (1895). 154Kirby v. United States, 174 U.S. 47 (1899), and Dowdell v. United States,

221 U.S. 325 (1911), recognized the inapplicability of the clause to the admission

of documentary evidence to establish collateral facts, admissible under the common

law, to permit certification as an additional record to the appellate court of the

events of the trial. 155Pointer v. Texas, 380 U.S. 400, 406–07 (1965); Douglas v. Alabama, 380 U.S.

415, 418 (1965). ‘‘The right to confrontation is basically a trial right. It includes both

the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.’’ Barber v. Page, 390 U.S. 719, 725 (1968). Unjustified limitation of defendant’s right to cross-examine witnesses presented against him at trial

may constitute a confrontation clause violation. Smith v. Illinois, 390 U.S. 129

(1968), or a denial of due process, Alford v. United States, 282 U.S. 687 (1931); and

In re Oliver, 333 U.S. 257 (1948). 156 380 U.S. 400 (1965). Justices Harlan and Stewart concurred on due process

grounds, rejecting the ‘‘incorporation’’ holding. Id. at 408, 409. See also Barber v.

Page, 390 U.S. 719 (1968), in which the Court refused to permit the State to use

the preliminary hearing testimony of a witness in a federal prison in another State

at the time of trial. The Court acknowledged the hearsay exception permitting the

use of such evidence when a witness was unavailable but refused to find him ‘‘unavailable’’ when the State had made no effort to procure him; Mancusi v. Stubbs,

408 U.S. 204 (1972), in which the Court permitted the State to assume the unavailability of a witness because he now resided in Sweden and to use the transcript of

the witness’ testimony at a former trial.

absence of the witness was attributable to the negligence of the

prosecution, 150 but that if a witness’ absence had been procured by

the defendant, testimony given at a previous trial on a different indictment could be used at the subsequent trial. 151 It had also recognized the admissibility of dying declarations 152 and of testimony

given at a former trial by a witness since deceased. 153 The prosecution was not permitted to use a judgment of conviction against

other defendants on charges of theft in order to prove that the

property found in the possession of defendant now on trial was stolen. 154

In a series of decisions beginning in 1965, the Court seemed

to equate the Confrontation Clause with the hearsay rule, positing

that a major purpose of the clause was ‘‘to give the defendant

charged with crime an opportunity to cross-examine the witnesses

against him,’’ unless one of the hearsay exceptions applies. 155

Thus, in Pointer v. Texas, 156 the complaining witness had testified

at a preliminary hearing at which he was not cross-examined and

the defendant was not represented by counsel; by the time of trial,

the witness had moved to another State and the prosecutor made

no effort to obtain his return. Offering the preliminary hearing testimony violated defendant’s right of confrontation. In Douglas v.
AMENDMENT 6—RIGHTS OF ACCUSED 1423

157 380 U.S. 415 (1965). See also Smith v. Illinois, 390 U.S. 129 (1968) (informer

as prosecution witness permitted to identify himself by alias and to conceal his true

name and address; Confrontation Clause violated because defense could not effectively cross-examine); Davis v. Alaska, 415 U.S. 308 (1974) (state law prohibiting

disclosure of identity of juvenile offenders could not be applied to preclude cross-examination of witness about his juvenile record when object was to allege possible

bias on part of witness). Cf. Chambers v. Mississippi, 410 U.S. 284 (1973); United

States v. Nobles, 422 U.S. 233, 240–41 (1975).

158 391 U.S. 123 (1968). The Court in this case equated confrontation with the

hearsay rule, first emphasizing ‘‘that the hearsay statement inculpating petitioner

was clearly inadmissible against him under traditional rules of evidence’’, id. at 128

n.3, and then observing that ‘‘[t]he reason for excluding this evidence as an evidentiary matter also requires its exclusion as a constitutional matter.’’ Id. at 136

n.12 (emphasis by Court). Bruton was applied retroactively in a state case in Roberts v. Russell, 392 U.S. 293 (1968). Where, however, the codefendant takes the

stand in his own defense, denies making the alleged out-of-court statement implicating defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has not been denied his right of confrontation under

Bruton, Nelson v. O’Neil, 402 U.S. 622 (1971). In two cases, violations of the rule

in Bruton have been held to be ‘‘harmless error’’ in the light of the overwhelming

amount of legally admitted evidence supporting conviction. Harrington v. California,

395 U.S. 250 (1969); Schneble v. Florida, 405 U.S. 427 (1972). Bruton was held inapplicable, however, when the nontestifying codefendant’s confession was redacted to

omit any reference to the defendant, and was circumstantially incriminating only

as the result of other evidence properly introduced. Richardson v. Marsh, 481 U.S.

200 (1987).

159 In Parker v. Randolph, 442 U.S. 62 (1979), the Court was evenly divided on

the question whether interlocking confessions may be admitted without violating the

clause. Four Justices held that admission of such confessions is proper, even though

neither defendant testifies, if the judge gives the jury a limiting instruction. Four

Justices held that a harmless error analysis should be applied, although they then

divided over its meaning in this case. The former approach was rejected in favor

of the latter in Cruz v. New York, 481 U.S. 186 (1987). The appropriate focus is

on reliability, the Court indicated, and ‘‘the defendant’s confession may be considered at trial in assessing whether his codefendant’s statements are supported by

sufficient ‘indicia of reliability’ to be directly admissible against him (assuming the

‘unavailability of the codefendant’ despite the lack of opportunity for cross-examination.’’ 481 U.S. at 193–94.

160Lee v. Illinois, 476 U.S. 530, 541 (1986).

Alabama, 157 the prosecution called as a witness the defendant’s alleged accomplice, and when the accomplice refused to testify, pleading his privilege against self-incrimination, the prosecutor read to

him to ‘‘refresh’’ his memory a confession in which he implicated

defendant. Because defendant could not cross-examine the accomplice with regard to the truth of the confession, the Court held the

Confrontation Clause had been violated. In Bruton v. United

States, 158 the use at a joint trial of a confession made by one of

the defendants was held to violate the confrontation rights of the

other defendant who was implicated by it because he could not

cross-examine the codefendant not taking the stand. 159 The Court

continues to view as ‘‘presumptively unreliable accomplices’ confessions that incriminate defendants.’’ 160
1424 AMENDMENT 6—RIGHTS OF ACCUSED

161 California v. Green, 399 U.S. 149, 155–56 (1970); Dutton v. Evans, 400 U.S.

74, 80–86 (1970). Compare id. at 93, 94, 95 (Justice Harlan concurring), with id. at

100, 105 n.7 (Justice Marshall dissenting). See also United States v. Inadi, 475 U.S.

387 (1986).

162 399 U.S. 149 (1970).

More recently, however, the Court has moved away from these

cases. ‘‘While . . . hearsay rules and the Confrontation Clause are

generally designed to protect similar values it is quite a different

thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the

rules of hearsay and their exceptions as they existed historically at

common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception . . . . The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.’’ 161

Further, the Court in California v. Green 162 upheld the use at

trial as substantive evidence of two prior statements made by a

witness who at the trial claimed that he had been under the influence of LSD at the time of the occurrence of the events in question

and that he could therefore neither deny nor affirm the truth of his

prior statements. One of the earlier statements was sworn testimony given at a preliminary hearing at which the defendant was

represented by counsel with the opportunity to cross-examine the

witness; that statement was admissible because it had been subjected to cross-examination earlier, the Court held, and that was all

that was required. The other statement had been made to policemen during custodial interrogation, had not been under oath, and,

of course, had not been subject to cross-examination, but the Court

deemed it admissible because the witness had been present at the

trial and could have been cross-examined then. ‘‘[T]he Confrontation Clause does not require excluding from evidence the prior

statements of a witness who concedes making the statements, and

who may be asked to defend or otherwise explain the inconsistency

between his prior and his present version of the events in question,

thus opening himself to full cross-examination at trial as to both
AMENDMENT 6—RIGHTS OF ACCUSED 1425

163 Id. at 164. Justice Brennan dissented. Id. at 189. See also Nelson v. O’Neil,

402 U.S. 622 (1971). ‘‘The Confrontation Clause includes no guarantee that every

witness called by the prosecution will refrain from giving testimony that is marred

by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is

generally satisfied when the defense is given a full and fair opportunity to probe

and expose these infirmities through cross-examination.’’ Delaware v. Fensterer, 474

U.S. 15, 21–22 (1985) (per curiam) (expert witness testified as to conclusion, but

could not remember basis for conclusion). See also United States v. Owens, 484 U.S.

554 (1988) (testimony as to previous, out-of-court identification statement is not

barred by witness’ inability, due to memory loss, to explain the basis for his identification). 164 400 U.S. 74 (1970). The statement was made by an alleged co-conspirator of

the defendant on trial and was admissible under the co-conspirator exception to the

hearsay rule permitting the use of a declaration by one conspirator against all his

fellow conspirators. The state rule permitted the use of a statement made during

the concealment stage of the conspiracy while the federal rule permitted use of a

statement made only in the course of and in furtherance of the conspiracy. Id. at

78, 81–82. 165 Id. at 86–89. The quoted phrase is at 89, (quoting California v. Green, 399

U.S. 149, 161 (1970)). Justice Harlan concurred to carry the case, on the view that

(1) the Confrontation Clause requires only that any testimony actually given at trial

must be subject to cross-examination, but (2) in the absence of countervailing circumstances introduction of prior recorded testimony—‘‘trial by affidavit’’—would violate the clause. Id. at 93, 95, 97. Justices Marshall, Black, Douglas, and Brennan

dissented, id. at 100, arguing for adoption of a rule that: ‘‘The incriminatory

extrajudicial statement of an alleged accomplice is so inherently prejudicial that it

cannot be introduced unless there is an opportunity to cross-examine the declarant,

whether or not his statement falls within a genuine exception to the hearsay rule.’’

Id. at 110–11. The Clause protects defendants against use of substantive evidence

against them, but does not bar rebuttal of the defendant’s own testimony. Tennessee

v. Street, 471 U.S. 409 (1985) (use of accomplice’s confession not to establish facts

as to defendant’s participation in the crime, but instead to support officer’s rebuttal

of defendant’s testimony as to circumstances of defendant’s confession; presence of

officer assured right of cross-examination).

stories.’’ 163 But in Dutton v. Evans, 164 the Court upheld the use

as substantive evidence at trial of a statement made by a witness

whom the prosecution could have produced but did not. Presentation of a statement by a witness who is under oath, in the presence of the jury, and subject to cross-examination by the defendant

is only one way of complying with the Confrontation Clause, four

Justices concluded. Thus, at least in the absence of prosecutorial

misconduct or negligence and where the evidence is not ‘‘crucial’’ or

‘‘devastating,’’ the Confrontation Clause is satisfied if the circumstances of presentation of out-of-court statements are such that

‘‘the trier of fact [has] a satisfactory basis for evaluating the truth

of the [hearsay] statement,’’ and this is to be ascertained in each

case by focusing on the reliability of the proffered hearsay statement, that is, by an inquiry into the likelihood that cross-examination of the declarant at trial could successfully call into question

the declaration’s apparent meaning or the declarant’s sincerity,

perception, or memory. 165
1426 AMENDMENT 6—RIGHTS OF ACCUSED

166 448 U.S. 56 (1980). The witness was absent from home and her parents testified they did not know where she was or how to get in touch with her. The State’s

sole effort to locate her was to deliver a series of subpoenas to her parents’ home.

Over the objection of three dissenters, the Court held this to be an adequate basis

to demonstrate her unavailability. Id. at 74–77. 167 Id. at 65 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107 (1934)). 168 Id. at 66. Applying Roberts, the Court held that the fact that defendant’s and

codefendant’s confessions ‘‘interlocked’’ on a number of points was not a sufficient

indicium of reliability, since the confessions diverged on the critical issues of the respective roles of the two defendants. Lee v. Illinois, 476 U.S. 530 (1986). 169 475 U.S. 387 (1986). 170 Id. at 394–95. 171White v. Illinois, 112 S. Ct. 736, 743 (1992). 172 Idaho v. Wright, 497 U.S. 805, 822–23 (1990) (insufficient evidence of trustworthiness of statements made by child sex crime victim to her pediatrician; statements were admitted under a ‘‘residual’’ hearsay exception rather than under a

firmly rooted exception).

In Ohio v. Roberts, 166 the Court explained that it had construed the clause ‘‘in two separate ways to restrict the range of admissible hearsay.’’ First, there is a rule of ‘‘necessity,’’ under which

in the usual case ‘‘the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it

wishes to use against the defendant.’’ Second, ‘‘once a witness is

shown to be unavailable . . . , the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material

departure from the reason of the general rule.’ ’’ 167 That is, if the

hearsay declarant is not present for cross-examination at trial, the

‘‘statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where

the evidence falls within a firmly rooted hearsay exception. In

other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.’’ 168

Roberts was narrowed in United States v. Inadi, 169 holding

that the rule of ‘‘necessity’’ is confined to use of testimony from a

prior judicial proceeding, and is inapplicable to co-conspirators’ outof-court statements. The latter—at least those ‘‘made while the conspiracy is in progress’’—have ‘‘independent evidentiary significance

of [their] own’’; hence in-court testimony is not a necessary or valid

substitute. 170 Similarly, evidence embraced within such firmly

rooted exceptions to the hearsay rule as those for spontaneous declarations and statements made for medical treatment’’ is not

barred from trial by the Confrontation Clause. 171 Particularized

guarantees of trustworthiness inherent in the circumstances under

which a statement is made must be shown for admission of other

hearsay evidence not covered by a ‘‘firmly rooted exception;’’ evidence tending to corroborate the truthfulness of a statement may

not be relied upon as a bootstrap. 172
AMENDMENT 6—RIGHTS OF ACCUSED 1427

173 487 U.S. 1012 (1988). 174On this latter point, the Court indicated that only ‘‘individualized findings,’’

rather than statutory presumption, could suffice to create an exception to the rule.

487 U.S. at 1021. 175 Id. at 1015, 1021 (1988). 176 Id. at 1018 n.2. 177 497 U.S. 836 (1990). 178 Coy was decided by a 6–2 vote. Justice Scalia’s opinion of the Court was

joined by Justices Brennan, White, Marshall, Stevens, and O’Connor; Justice O’Connor’s separate concurring opinion was joined by Justice White; Justice Blackmun’s

dissenting opinion was joined by Chief Justice Rehnquist; and Justice Kennedy did

not participate. In Craig, a 5–4 decision, Justice O’Connor’s opinion of the Court

was joined by the two Coy dissenters and by Justices White and Kennedy. Justice

Scalia’s dissent was joined by Justices Brennan, Marshall, and Stevens.

Contrasting approaches to the Confrontation Clause were

taken by the Court in two cases involving state efforts to protect

child sex crime victims from trauma while testifying. In Coy v.

Iowa, 173 the Court held that the right of confrontation is violated

by a procedure, authorized by statute, placing a one-way screen between complaining child witnesses and the defendant, thereby

sparing the witnesses from viewing the defendant. This conclusion

was reached even though the witnesses could be viewed by the defendant’s counsel and by the judge and jury, even though the right

of cross-examination was in no way limited, and even though the

state asserted a strong interest in protecting child sex-abuse victims from further trauma. 174 The Court’s opinion by Justice Scalia

declared that a defendant’s right during his trial to face-to-face confrontation with his accusers derives from ‘‘the irreducible literal

meaning of the clause,’’ and traces ‘‘to the beginnings of Western

legal culture.’’ 175 Squarely rejecting the Wigmore view ‘‘that the

only essential interest preserved by the right was cross-examination, 176 the Court emphasized the importance of face-to-face confrontation in eliciting truthful testimony.

Coy’s interpretation of the Clause, though not its result, was

rejected in Maryland v. Craig. 177 In Craig the Court upheld Maryland’s use of one-way, closed circuit television to protect a child

witness in a sex crime from viewing the defendant. As in Coy, procedural protections other than confrontation were afforded: the

child witness must testify under oath, is subject to cross examination, and is viewed by the judge, jury, and defendant. The critical

factual difference between the two cases was that Maryland required a case-specific finding that the child witness would be traumatized by presence of the defendant, while the Iowa procedures

struck down in Coy rested on a statutory presumption of trauma.

But the difference in approach is explained by the fact that Justice

O’Connor’s views, expressed in a concurring opinion in Coy, became

the opinion of the Court in Craig. 178 Beginning with the propo-
1428 AMENDMENT 6—RIGHTS OF ACCUSED

179 497 U.S. at 849 (emphasis original).

180 Id. at 850. Dissenting Justice Scalia objected that face-to-face confrontation

‘‘is not a preference ‘reflected’ by the Confrontation Clause [but rather] a constitutional right unqualifiedly guaranteed,’’ and that the Court ‘‘has applied ‘interest-balancing’ analysis where the text of the Constitution simply does not permit it.’’ Id.

at 863, 870.

181 Id. at 855.

182 Id. at 857.

183 Id. at 855.

184Kentucky v. Stincer, 482 U.S. 730, 744 (1987).

185Michigan v. Lucas, 500 U.S. 145 (1991).

sition that the Confrontation Clause does not, as evidenced by

hearsay exceptions, grant an absolute right to face-to-face confrontation, the Court in Craig described the Clause as ‘‘reflect[ing]

a preference for face-to-face confrontation.’’ 179 This preference can

be overcome ‘‘only where denial of such confrontation is necessary

to further an important public policy and only where the reliability

of the testimony is otherwise assured.’’ 180 Relying on the traditional and ‘‘transcendent’’ state interest in protecting the welfare of

children, on the significant number of state laws designed to protect child witnesses, and on ‘‘the growing body of academic literature documenting the psychological trauma suffered by child

abuse victims,’’ 181 the Court found a state interest sufficiently important to outweigh a defendant’s right to face-to-face confrontation. Reliability of the testimony was assured by the ‘‘rigorous adversarial testing [that] preserves the essence of effective confrontation.’’ 182 All of this, of course, would have led to a different result

in Coy as well, but Coy was distinguished with the caveat that

‘‘[t]he requisite finding of necessity must of course be a case-specific

one;’’ Maryland’s required finding that a child witness would suffer

‘‘serious emotional distress’’ if not protected was clearly adequate

for this purpose. 183

In another case involving child sex crime victims, the Court

held that there is no right of face-to-face confrontation at an inchambers hearing to determine the competency of a child victim to

testify, since the defendant’s attorney participated in the hearing,

and since the procedures allowed ‘‘full and effective’’ opportunity to

cross-examine the witness at trial and request reconsideration of

the competency ruling. 184 And there is no absolute right to

confront witnesses with relevant evidence impeaching those witnesses; failure to comply with a rape shield law’s notice requirement can validly preclude introduction of evidence relating to a

witness’s prior sexual history. 185
AMENDMENT 6—RIGHTS OF ACCUSED 1429

186 United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800) (Justice Chase

on circuit). 187 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

1786 (1833). See Rosen v. United States, 245 U.S. 467 (1918). 188Washington v. Texas, 388 U.S. 14, 19–23 (1967). Texas did permit

coparticipants to testify for the prosecution. 189Taylor v. Illinois, 484 U.S. 400 (1988). 190 480 U.S. 39, 56 (1987) (ordering trial court review of files of child services

agency to determine whether they contain evidence material to defense in child

abuse prosecution).

COMPULSORY PROCESS

The provision requires, of course, that the defendant be afforded legal process to compel witnesses to appear, 186 but another

apparent purpose of the provision was to make inapplicable in federal trials the common-law rule that in cases of treason or felony

the accused was not allowed to introduce witnesses in his defense. 187 ‘‘The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to

present a defense, the right to present the defendant’s version of

the facts as well as the prosecution’s to the jury so it may decide

where the truth lies. Just as an accused has the right to confront

the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish

a defense. This right is a fundamental element of due process of

law,’’ applicable to states by way of the Fourteenth Amendment,

and the right is violated by a state law providing that

coparticipants in the same crime could not testify for one another. 188

The right to present witnesses is not absolute, however; a court

may refuse to allow a defense witness to testify when the court

finds that defendant’s counsel willfully failed to identify the witness in a pretrial discovery request and thereby attempted to gain

a tactical advantage. 189

In Pennsylvania v. Ritchie, the Court indicated that requests

to compel the government to reveal the identity of witnesses or

produce exculpatory evidence should be evaluated under due process rather than compulsory process analysis, adding that ‘‘compulsory process provides no greater protections in this area than due

process.’’ 190

ASSISTANCE OF COUNSEL

Development of an Absolute Right to Counsel at Trial

Neither in the Congress which proposed what became the

Sixth Amendment guarantee that the accused is to have the assistance of counsel nor in the state ratifying conventions is there any
1430 AMENDMENT 6—RIGHTS OF ACCUSED

191W. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 8–26 (1955). 192Section 35 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73, provided that in

federal courts parties could manage and plead their own causes personally or by the

assistance of counsel as provided by the rules of court. The Act of April 30, 1790,

ch. 9, 1 Stat. 118, provided: Every person who is indicted of treason or other capital

crime, ‘‘shall be allowed to make his full defense by counsel learned in the law; and

the court before which he is tried, or some judge thereof, shall immediately, upon

his request, assign to him such counsel not exceeding two, as he may desire, and

they shall have free access to him at all reasonable hours.’’ It was apparently the

practice almost invariably to appoint counsel for indigent defendants charged with

noncapital crimes, although it may be assumed that the practice fell short often of

what is now constitutionally required. W. BEANEY, THE RIGHT TO COUNSEL IN

AMERICAN COURTS 29–30 (1955). 193 287 U.S. 45 (1932).

indication of the understanding associated with the language employed. The development of the common-law principle in England

had denied to anyone charged with a felony the right to retain

counsel, while the right was afforded in misdemeanor cases, a rule

ameliorated in practice, however, by the judicial practice of allowing counsel to argue points of law and then generously interpreting

the limits of ‘‘legal questions.’’ The colonial and early state practice

in this country was varied, ranging from the existent English practice to appointment of counsel in a few States where needed counsel could not be retained. 191 Contemporaneously with the proposal

and ratification of the Sixth Amendment, Congress enacted two

statutory provisions which seemed to indicate an understanding

that the guarantee was limited to assuring that a person wishing

and able to afford counsel would not be denied that right. 192 It was

not until the 1930’s that the Supreme Court began expanding the

clause to its present scope.

Powell v. Alabama.—The expansion began in Powell v. Alabama, 193 in which the Court set aside the convictions of eight

black youths sentenced to death in a hastily carried-out trial without benefit of counsel. Due process, Justice Sutherland said for the

Court, always requires the observance of certain fundamental personal rights associated with a hearing, and ‘‘the right to the aid of

counsel is of this fundamental character.’’ This observation was

about the right to retain counsel of one’s choice and at one’s expense, and included an eloquent statement of the necessity of counsel. ‘‘The right to be heard would be, in many cases, of little avail

if it did not comprehend the right to be heard by counsel. Even the

intelligent and educated layman has small and sometimes no skill

in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good

or bad. He is unfamiliar with the rules of evidence. Left without

the aid of counsel he may be put on trial without a proper charge,

and convicted upon incompetent evidence, or evidence irrelevant to
AMENDMENT 6—RIGHTS OF ACCUSED 1431

194 Id. at 68–69. 195 Id. at 71. 196 304 U.S. 458 (1938). 197 Id. at 462, 463.

the issue or otherwise inadmissible. He lacks both the skill and

knowledge adequately to prepare his defense, even though he have

a perfect one. He requires the guiding hand of counsel at every step

in the proceedings against him. Without it, though he be not guilty,

he faces the danger of conviction because he does not know how to

establish his innocence.’’ 194

The failure to afford the defendants an opportunity to retain

counsel violated due process, but the Court acknowledged that as

indigents the youths could not have retained counsel. Therefore,

the Court concluded, under the circumstances—‘‘the ignorance and

illiteracy of the defendants, their youth, the circumstances of public

hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of

their lives’’—‘‘the necessity of counsel was so vital and imperative

that the failure of the trial court to make an effective appointment

of counsel was likewise a denial of due process within the meaning

of the Fourteenth Amendment.’’ The holding was narrow. ‘‘[I]n a

capital case, where the defendant is unable to employ counsel, and

is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the

court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law . . . .’’ 195

Johnson v. Zerbst.—Next step in the expansion came in

Johnson v. Zerbst, 196 in which the Court announced an absolute

rule requiring appointment of counsel for federal criminal defendants who could not afford to retain a lawyer. The right to assistance of counsel, Justice Black wrote for the Court, ‘‘is necessary to

insure fundamental human rights of life and liberty.’’ Without stopping to distinguish between the right to retain counsel and the

right to have counsel provided if the defendant cannot afford to

hire one, the Justice quoted Justice Sutherland’s invocation of the

necessity of legal counsel for even the intelligent and educated layman and said: ‘‘The Sixth Amendment withholds from federal

courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the

assistance of counsel.’’ 197 Any waiver, the Court ruled, must be by

the intelligent choice of the defendant, will not be presumed from
1432 AMENDMENT 6—RIGHTS OF ACCUSED

198 Id. at 464–465. The standards for a valid waiver were tightened in Walker

v. Johnston, 312 U.S. 275 (1941), setting aside a guilty plea made without assistance of counsel, by a ruling requiring that a defendant appearing in court be advised of his right to counsel and asked whether or not he wished to waive the right.

See also Von Moltke v. Gillies, 332 U.S. 708 (1948); Carnley v. Cochran, 369 U.S.

506 (1962). 199 316 U.S. 455 (1942). 200 Id. at 461–62, 465. 201 Id. at 471, 473. 202 Id. at 474 (joined by Justices Douglas and Murphy). 203 287 U.S. 45, 71 (1932). 204 368 U.S. 52 (1961). Earlier cases employing the ‘‘special circumstances’’ language were Williams v. Kaiser, 323 U.S. 471 (1945); Tompkins v. Missouri, 323 U.S.

485 (1945); Hawk v. Olson, 326 U.S. 271 (1945); De Meerleer v. Michigan, 329 U.S.

663 (1947); Marino v. Ragen, 332 U.S. 561 (1947); Haley v. Ohio, 332 U.S. 596

(1948). Dicta appeared in several cases thereafter suggesting an absolute right to

a silent record, and must be determined by the trial court before

proceeding in the absence of counsel. 198

Betts v. Brady and Progeny.—An effort to obtain the same

rule in the state courts in all criminal proceedings was rebuffed in

Betts v. Brady. 199 Justice Roberts for the Court observed that the

Sixth Amendment would compel the result only in federal courts

but that in state courts the Due Process Clause of the Fourteenth

Amendment ‘‘formulates a concept less rigid and more fluid’’ than

those guarantees embodied in the Bill of Rights, although a state

denial of a right protected in one of the first eight Amendments

might ‘‘in certain circumstances’’ be a violation of due process. The

question was rather ‘‘whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and

essential to a fair trial, and so, to due process of law, that it is

made obligatory upon the States by the Fourteenth Amendment.’’ 200 Examining the common-law rules, the English practice,

and the state constitutions, laws and practices, the Court concluded

that it was the ‘‘considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right essential to a fair trial.’’ Want of counsel in a particular case might result in a conviction lacking in fundamental

fairness and so necessitate the interposition of constitutional restriction upon state practice, but this was not the general rule. 201

Justice Black in dissent argued that the Fourteenth Amendment

made the Sixth applicable to the States and required the appointment of counsel, but that even on the Court’s terms counsel was

a fundamental right and appointment was required by due process. 202

Over time the Court abandoned the ‘‘special circumstances’’

language of Powell v. Alabama 203 when capital cases were involved

and finally in Hamilton v. Alabama, 204 held that in a capital case
AMENDMENT 6—RIGHTS OF ACCUSED 1433

counsel in capital cases. Bute v. Illinois, 333 U.S. 640, 674 (1948); Uveges v. Pennsylvania, 335 U.S. 437, 441 (1948). A state court decision finding a waiver of the

right in a capital case was upheld in Carter v. Illinois, 329 U.S. 173 (1946).

205Gideon v. Wainwright, 372 U.S. 335, 350 (1963).

206 Youth and immaturity (Moore v. Michigan, 355 U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Uveges v. Pennsylvania, 335

U.S. 437 (1948); Wade v. Mayo, 334 U.S. 672 (1948); Marino v. Ragen, 332 U.S. 561

(1947); De Meerleer v. Michigan, 329 U.S. 663 (1947)), inexperience (Moore v. Michigan, supra (limited education), Uveges v. Pennsylvania, supra), and insanity or

mental abnormality (Massey v. Moore, 348 U.S. 105 (1954); Palmer v. Ashe, 342

U.S. 134 (1951)), were commonly-cited characteristics of the defendant demonstrating the necessity for assistance of counsel.

207Technicality of the crime charged (Moore v. Michigan, 355 U.S. 155 (1957);

Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Williams v. Kaiser,

323 U.S. 471 (1945)), or the technicality of a possible defense (Rice v. Olson, 324

U.S. 786 (1945); McNeal v. Culver, 365 U.S. 109 (1961)), were commonly cited.

208The deliberate or careless overreaching by the court or the prosecutor (Gibbs

v. Burke, 337 U.S. 772 (1949); Townsend v. Burke, 334 U.S. 736 (1948); Palmer v.

Ashe, 342 U.S. 134 (1951); White v. Ragen, 324 U.S. 760 (1945)), prejudicial developments during the trial (Cash v. Culver, 358 U.S. 633 (1959); Gibbs v. Burke,

supra), and questionable proceedings at sentencing (Townsend v. Burke, supra),

were commonly cited.

a defendant need make no showing of particularized need or of

prejudice resulting from absence of counsel; henceforth, assistance

of counsel was a constitutional requisite in capital cases. In noncapital cases, developments were such that Justice Harlan could

assert that ‘‘the ‘special circumstances’ rule has continued to exist

in form while its substance has been substantially and steadily

eroded.’’ 205 The rule was designed to afford some certainty in the

determination of when failure to appoint counsel would result in a

trial lacking in ‘‘fundamental fairness.’’ Generally, the Court developed three categories of prejudicial factors, often overlapping in individual cases, which required the furnishing of assistance of counsel. There were (1) the personal characteristics of the defendant

which made it unlikely he could obtain an adequate defense of his

own, 206 (2) the technical complexity of the charges or of possible

defenses to the charges, 207 and (3) events occurring at trial that

raised problems of prejudice. 208 The last characteristic especially

had been utilized by the Court to set aside convictions occurring in
1434 AMENDMENT 6—RIGHTS OF ACCUSED

209 Hudson v. North Carolina, 363 U.S. 697 (1960), held that an unrepresented

defendant had been prejudiced when his co-defendant’s counsel plead his client

guilty in the presence of the jury, the applicable state rules to avoid prejudice in

such situation were unclear, and the defendant in any event had taken no steps to

protect himself. The case seemed to require reversal of any conviction when the

record contained a prejudicial occurrence that under state law might have been prevented or ameliorated. Carnley v. Cochran, 369 U.S. 506 (1962), reversed a conviction because the unrepresented defendant failed to follow some advantageous procedure that a lawyer might have utilized. Chewning v. Cunningham, 368 U.S. 443

(1962), found that a lawyer might have developed several defenses and adopted several tactics to defeat a charge under a state recidivist statute, and that therefore

the unrepresented defendant had been prejudiced. 210Quicksal v. Michigan, 339 U.S. 660 (1950). See also Canizio v. New York,

327 U.S. 82 (1946); Foster v. Illinois, 332 U.S. 134 (1947); Gayes v. New York, 332

U.S. 145 (1947); Bute v. Illinois, 333 U.S. 640 (1948); Gryger v. Burke, 334 U.S. 728

(1948). Cf. White v. Ragen, 324 U.S. 760 (1945). 211 372 U.S. 335 (1963). 212 Id. at 344. 213 Id. at 342–43, 344. Justice Black, of course, believed the Fourteenth Amendment made applicable to the States all the provisions of the Bill of Rights, Adamson

v. California, 332 U.S. 46, 71 (1947), but for purposes of delivering the opinion of

the Court followed the due process absorption doctrine. Justice Douglas, concurring,

maintained the incorporation position. Gideon, supra, at 345. Justice Harlan concurred, objecting both to the Court’s manner of overruling Betts v. Brady and to the

incorporation implications of the opinion. Id. at 349. 214Scott v. Illinois, 440 U.S. 367 (1979), adopted a rule of actual punishment

and thus modified Argersinger v. Hamlin, 407 U.S. 25 (1972), which had held counsel required if imprisonment were possible. 215 In re Gault, 387 U.S. 1 (1967). See also Specht v. Patterson, 386 U.S. 605

(1967).

the absence of counsel, 209 and the last case rejecting a claim of denial of assistance of counsel had been decided in 1950. 210

Gideon v. Wainwright.—Against this background, a unanimous Court in Gideon v. Wainwright 211 overruled Betts v. Brady

and held ‘‘that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be

assured a fair trial unless counsel is provided for him.’’ 212 Justice

Black, a dissenter in the 1942 decision, asserted for the Court that

Betts was an ‘‘abrupt break’’ with earlier precedents, citing Powell

and Johnson v. Zerbst. Rejecting the Betts reasoning, the Court decided that the right to assistance of counsel is ‘‘fundamental’’ and

the Fourteenth Amendment does make the right constitutionally

required in state courts. 213 The Court’s opinion in Gideon left unanswered the question whether the right to assistance of counsel

was claimable by defendants charged with misdemeanors or serious

misdemeanors as well as with felonies, and it was not until recently that the Court held that the right applies to any misdemeanor case in which imprisonment is imposed—that no person

may be sentenced to jail who was convicted in the absence of counsel, unless he validly waived his right. 214 The right to the assistance of counsel exists in juvenile proceedings also. 215
AMENDMENT 6—RIGHTS OF ACCUSED 1435

216Pickelsimer v. Wainwright, 375 U.S. 2 (1963); Doughty v. Maxwell, 376 U.S.

202 (1964); Kitchens v. Smith, 401 U.S. 847 (1971). See Linkletter v. Walker, 381

U.S. 618, 639 (1965). 217 Burgett v. Texas, 389 U.S. 109 (1967) (admission of record of prior

counselless conviction at trial with instruction to jury to regard it only for purposes

of determining sentence if it found defendant guilty but not to use it in considering

guilt inherently prejudicial); United States v. Tucker, 404 U.S. 443 (1972) (error for

sentencing judge in 1953 to have relied on two previous convictions at which defendant was without counsel); Loper v. Beto, 405 U.S. 473 (1972) (error to have permitted counseled defendant in 1947 trial to have his credibility impeached by introduction of prior uncounseled convictions in the 1930’s; Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist dissented); Baldasar v. Illinois, 446 U.S. 222

(1980) (although under Scott v. Illinois, 440 U.S. 367 (1979), an uncounseled misdemeanor conviction is valid if defendant is not incarcerated, such a conviction

nonetheless may not be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term). 218 348 U.S. 3 (1954). 219 Id. at 9, 10. See also House v. Mayo, 324 U.S. 42 (1945); Hawk v. Olson, 326

U.S. 271 (1945); Reynolds v. Cochran, 365 U.S. 525 (1961). 220 491 U.S. 617 (1989).

Because the absence of counsel when a defendant is convicted

or pleads guilty goes to the fairness of the proceedings and undermines the presumption of reliability that attaches to a judgment of

a court, Gideon has been held fully retroactive, so that convictions

obtained in the absence of counsel without a valid waiver are not

only voidable, 216 but also may not be subsequently used either to

support guilt in a new trial or to enhance punishment upon a valid

conviction. 217

Protection of the Right to Retained Counsel.—The Sixth

Amendment has also been held to protect absolutely the right of a

defendant to retain counsel of his choice and to be represented in

the fullest measure by the person of his choice. Thus, in Chandler

v. Fretag, 218 when a defendant appearing to plead guilty on a

house-breaking charge was orally advised for the first time that,

because of three prior convictions for felonies, he would be tried

also as an habitual criminal and if convicted would be sentenced

to life imprisonment, the court’s denial of his request for a continuance in order to consult an attorney was a violation of his Fourteenth Amendment due process rights. ‘‘Regardless of whether petitioner would have been entitled to the appointment of counsel, his

right to be heard through his own counsel was unqualified. . . . A

necessary corollary is that a defendant must be given a reasonable

opportunity to employ and consult with counsel; otherwise, the

right to be heard by counsel would be of little worth.’’ 219 But the

right to retain counsel of choice does not bar operation of forfeiture

provisions, even if the result is to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United

States, 220 the Court upheld a federal statute requiring forfeiture to
1436 AMENDMENT 6—RIGHTS OF ACCUSED

221 21 U.S.C. § 853. 222 491 U.S. at 626. 223The statute was interpreted in United States v. Monsanto, 491 U.S. 600

(1989), as requiring forfeiture of all assets derived from the covered offenses, and

as making no exception for assets the defendant intends to use for his defense. 224Dissenting Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens, described the Court’s ruling as allowing the Sixth Amendment right to counsel

of choice to be ‘‘outweighed by a legal fiction.’’ 491 U.S. at 644 (dissenting from both

Caplin & Drysdale and Monsanto). 225 Holloway v. Arkansas, 435 U.S. 475 (1978). Counsel had been appointed by

the court. 226 Cuyler v. Sullivan, 446 U.S. 335 (1980). 227 Id. at 348–50. For earlier cases presenting more direct violations of defendant’s rights, see Glasser v. United States, 315 U.S. 60 (1942); United States v.

Hayman, 342 U.S. 205 (1952); and Ellis v. United States, 365 U.S. 674 (1958).

the government of property and proceeds derived from drug-related

crimes constituting a ‘‘continuing criminal enterprise,’’ 221 even

though a portion of the forfeited assets had been used to retain defense counsel. While a defendant may spend his own money to employ counsel, the Court declared, ‘‘[a] defendant has no Sixth

Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his choice.’’ 222 Because the statute vests title to the forfeitable assets in the United

States at the time of the criminal act, 223 the defendant has no

right to give them to a ‘‘third party’’ even if the purpose is to exercise a constitutionally protected right. 224

Whenever defense counsel is representing two or more defendants and asserts in timely fashion to the trial judge that because

of possible conflicts of interest between or among his clients he is

unable to render effective assistance, the judge must examine the

claim carefully, and unless he finds the risk too remote he must

permit or appoint separate counsel. 225 Subsequently, the Court

elaborated upon this principle and extended it. 226 First, the Sixth

Amendment right to counsel applies to defendants who retain private counsel as well as to defendants served by appointed counsel.

Second, judges are not automatically required to initiate an inquiry

into the propriety of multiple representation, being able to assume

in the absence of undefined ‘‘special circumstances’’ that no conflict

exists. Third, to establish a violation, a defendant must show an

‘‘actual conflict of interest which adversely affected his lawyer’s

performance.’’ Once it is established that a conflict affected the lawyer’s action, however, prejudice need not be proved. 227

‘‘[T]he right to the assistance of counsel has been understood

to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been
AMENDMENT 6—RIGHTS OF ACCUSED 1437

228 Herring v. New York, 422 U.S. 853, 857 (1975). 229 425 U.S. 80 (1976). 230Geders was distinguished in Perry v. Leeke, 488 U.S. 272 (1989), in which

the Court upheld a trial court’s order that the defendant and his counsel not consult

during a 15-minute recess between the defendant’s direct testimony and his crossexamination. 231 E.g., Ferguson v. Georgia, 365 U.S. 570 (1961) (where defendant was prevented by statute from giving sworn testimony in his defense, the refusal of a state

court to permit defense counsel to question him to elicit his unsworn statement denied due process because it denied him assistance of counsel); Brooks v. Tennessee,

406 U.S. 605 (1972) (alternative holding) (statute requiring defendant to testify

prior to any other witness for defense or to forfeit the right to testify denied him

due process by depriving him of decision of counsel on questions whether to testify

and when). 232 United States v. Morrison, 449 U.S. 361 (1981) (Court assumed that investigators who met with defendant, on another matter, without knowledge or permission of counsel and who disparaged counsel and suggested she could do better without him interfered with counsel, but held that in absence of showing of adverse consequences to representation, dismissal of indictment was inappropriate remedy). 233McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). 234Powell v. Alabama, 287 U.S. 45, 71–72 (1932); Glasser v. United States, 315

U.S. 60, 70 (1942). 235 E.g., Glasser v. United States, 315 U.S. 60 (1942) (trial court required defendant and codefendant to be represented by same appointed counsel despite diverconstitutionalized in the Sixth and Fourteenth Amendments.’’ 228

So saying, the Court invalidated a statute empowering every judge

in a nonjury criminal trial to deny the parties the right to make

a final summation before rendition of judgment which had been applied in the specific case to prevent defendant’s counsel from making a summation. The opportunity to participate fully and fairly in

the adversary factfinding process includes counsel’s right to make

a closing argument. And, in Geders v. United States, 229 the Court

held that a trial judge’s order preventing defendant from consulting

his counsel during a 17-hour overnight recess between his direct

and cross-examination, in order to prevent tailoring of testimony or

‘‘coaching,’’ deprived defendant of his right to assistance of counsel

and was invalid. 230 Other direct and indirect restraints upon counsel and his discretion have been found to be in violation of the

Amendment. 231 Governmental investigative agents may interfere

as well with the relationship of defense and counsel. 232

Effective Assistance of Counsel.—‘‘[T]he right to counsel is

the right to the effective assistance of counsel.’’ 233 From the beginning of the cases holding that counsel must be appointed for defendants unable to afford to retain a lawyer, the Court has indicated that appointment must be made in a manner that affords ‘‘effective aid in the preparation and trial of the case.’’ 234 Of course,

the government must not interfere with representation, either

through the manner of appointment or through the imposition of

restrictions upon appointed or retained counsel that would impede

his ability fairly to provide a defense, 235 but the Sixth Amendment
1438 AMENDMENT 6—RIGHTS OF ACCUSED

gent interests); Geders v. United States, 425 U.S. 80 (1976) (trial judge barred consultation between defendant and attorney overnight); Herring v. New York, 422

U.S. 853 (1975) (application of statute to bar defense counsel from making final

summation). 236 Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). 237 Id. at 342–45. But see Wainwright v. Torna, 455 U.S. 586 (1982) (summarily

holding that defendant may not raise ineffective assistance claim in context of proceeding in which he had no constitutional right to counsel). 238 Holloway v. Arkansas, 435 U.S. 475 (1978) (public defender representing

three defendants alerted trial judge to possibility of conflicts of interest; judge

should have appointed different counsel or made inquiry into possibility of conflicts);

Cuyler v. Sullivan, 446 U.S. 335 (1980) (trial judge had no obligation to inquire into

adequacy of multiple representation, with possible conflict of interest, in absence of

raising of issue by defendant or counsel); Wood v. Georgia, 450 U.S. 261 (1981)

(where counsel retained by defendants’ employer had conflict between their interests

and employer’s, and all the facts were known to trial judge, he should have inquired

further); Wheat v. United States, 486 U.S. 153 (1988) (district court correctly denied

defendant’s waiver of right to conflict-free representation; separate representation

order is justified by likelihood of attorney’s conflict of interest). 239 In McMann v. Richardson, 397 U.S. 759, 768–71 (1970), the Court observed

that whether defense counsel provided adequate representation, in advising a guilty

plea, depended not on whether a court would retrospectively consider his advice

right or wrong ‘‘but on whether that advice was within the range of competence demanded of attorneys in criminal cases.’’ See also Tollett v. Henderson, 411 U.S. 258,

266–69 (1973); United States v. Agurs, 427 U.S. 97, 102 n.5 (1976). 240 466 U.S. 668 (1984). 241Strickland involved capital sentencing, and the Court left open the issue of

what standards might apply in ordinary sentencing, where there is generally far

goes further than that. ‘‘The right to counsel prevents the States

from conducting trials at which persons who face incarceration

must defend themselves without adequate legal assistance.’’ 236

That is, a criminal trial initiated and conducted by government is

state action which may be so fundamentally unfair that no conviction obtained thereby may be allowed to stand, irrespective of the

possible fact that government did nothing itself to bring about the

unfairness. Thus, ineffective assistance provided by retained counsel provides a basis for finding a Sixth Amendment denial in a

trial. 237

The trial judge must not only refrain from creating a situation

of ineffective assistance, but may well be obligated under certain

circumstances to inquire whether defendant’s counsel, because of a

possible conflict of interest or otherwise, is rendering or may

render ineffective assistance. 238 A much more difficult issue is presented when a defendant on appeal or in a collateral proceeding alleges that his counsel was incompetent or was not competent

enough to provide effective assistance. While the Court touched on

the question in 1970, 239 it was not until 1984, in Strickland v.

Washington, 240 that the Court articulated a general test for ineffective assistance of counsel in criminal trials and in capital sentencing proceedings. 241
AMENDMENT 6—RIGHTS OF ACCUSED 1439

more discretion than in capital sentencing, or in the guilt/innocence phase of a capital trial. 466 U.S. at 686. 242 466 U.S. at 689–91. The obligation is to stay within the wide range of legitimate, lawful, professional conduct; there is no obligation to assist the defendant in

presenting perjured testimony. Nix v. Whiteside, 475 U.S. 157 (1986). See also Georgia v. McCollum, 112 S. Ct. 2348 (1992) (no right to carry out through counsel the

racially discriminatory exclusion of jurors during voir dire). Also, ‘‘effective’’ assistance of counsel does not guarantee the accused a ‘‘meaningful relationship’’ of ‘‘rapport’’ with his attorney such that he is entitled to a continuance in order to change

attorneys during a trial. Morris v. Slappy, 461 U.S. 1 (1983). See also Jones v.

Barnes, 463 U.S. 745 (1983) (no obligation to present on appeal all nonfrivolous issues requested by defendant; appointed counsel may exercise his professional judgement in determining which issues are best raised on appeal). 243 466 U.S. at 694. 244 466 U.S. at 699. Accord, Darden v. Wainwright, 477 U.S. 168 (1986) (decision not to introduce mitigating evidence). 245 474 U.S. 52 (1985). 246 United States v. Cronic, 466 U.S. 648, 658 (1984).

There are two components to the test: deficient attorney performance and resulting prejudice to the defense so serious as to

bring the outcome of the proceeding into question. Although the

gauge of effective attorney performance is an objective standard of

reasonableness, the Court concluded that ‘‘[j]udicial scrutiny of

counsel’s performance must be highly deferential.’’ Strategic choices

made after thorough investigation of relevant law and facts are

‘‘virtually unchallengeable,’’ as are ‘‘reasonable’’ decisions making

investigation unnecessary. 242 In order to establish prejudice resulting from attorney error, the defendant ‘‘must show that there is a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence

in the outcome.’’ 243 In Strickland, neither part of the test was satisfied. The attorney’s decision to forego character and psychological

evidence in the capital sentencing proceeding in order to avoid evidence of the defendant’s criminal history was deemed ‘‘the result

of reasonable professional judgment,’’ and prejudice could not be

shown because ‘‘the overwhelming aggravating factors’’ outweighed

whatever evidence of good character could have been presented. 244

In Hill v. Lockhart, 245 the Court applied the Strickland test to attorney decisions in plea bargaining, holding that a defendant must

show a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty.

There are times when prejudice may be presumed, i.e. there

can be ‘‘circumstances that are so likely to prejudice the accused

that the cost of litigating their effect in a particular case is unjustified.’’ 246 These situations include actual or constructive denial of

counsel, and denial of such basics as the right to effective cross-examination. However, ‘‘[a]part from circumstances of that magnitude
1440 AMENDMENT 6—RIGHTS OF ACCUSED

247 466 U.S. at 659 n.26 (finding no inherently prejudicial circumstances in appointment of real estate attorney with no criminal law experience to defend mail

fraud ‘‘check kiting’’ charges with approximately one month’s preparation time). On

the other hand, an attorney’s failure to advise a client of his right to appeal, and

of his right to an attorney on appeal, amounts to ‘‘a substantial showing’’ of denial

of the right to effective counsel. Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam). 248Faretta v. California, 422 U.S. 806 (1975). Even if the defendant exercises

his right to his detriment, the Constitution ordinarily guarantees him the opportunity to do so. A defendant who represents himself cannot thereafter complain that

the quality of his defense denied him effective assistance of counsel. Id. at 834–35

n.46. Related to the right of self-representation is the right to testify in one’s own

defense. Rock v. Arkansas, 483 U.S. 44 (1987) (per se rule excluding all hypnotically

refreshed testimony violates right). 249 465 U.S. 168 (1984). 250 Id. at 178. 251 Id. at 184. 252 287 U.S. 45, 57 (1932).

. . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice].’’ 247

Self-Representation.—The Court has held that the Sixth

Amendment, in addition to guaranteeing the right to retained or

appointed counsel, also guarantees a defendant the right to represent himself. 248 It is a right the defendant must adopt knowingly

and intelligently; under some circumstances the trial judge may

deny the authority to exercise it, as when the defendant simply

lacks the competence to make a knowing or intelligent waiver of

counsel or when his self-representation is so disruptive of orderly

procedures that the judge may curtail it.

The essential elements of self-representation were spelled out

in McKaskle v. Wiggins, 249 a case involving the self-represented defendant’s rights vis-a-vis ‘‘standby counsel’’ appointed by the trial

court. The ‘‘core of the Faretta right’’ is that the defendant ‘‘is entitled to preserve actual control over the case he chooses to present

to the jury,’’ and consequently, standby counsel’s participation

‘‘should not be allowed to destroy the jury’s perception that the defendant is representing himself.’’ 250 But participation of standby

counsel even in the jury’s presence and over the defendant’s objection does not violate the defendant’s Sixth Amendment rights when

serving the basic purpose of aiding the defendant in complying

with routine courtroom procedures and protocols and thereby relieving the trial judge of these tasks. 251

Right to Assistance of Counsel in Nontrial Situations

Judicial Proceedings Before Trial.—Dicta in Powell v. Alabama 252 indicated that ‘‘during perhaps the most critical period of

the proceedings . . . that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thor-
AMENDMENT 6—RIGHTS OF ACCUSED 1441

253 368 U.S. 52 (1961). 254 373 U.S. 59 (1963). 255 399 U.S. 1 (1970). Justice Harlan concurred solely because he thought the

precedents compelled him to do so, id. at 19, while Chief Justice Burger and Justice

Stewart dissented. Id. at 21, 25. Inasmuch as the role of counsel at the preliminary

hearing stage does not necessarily have the same effect upon the integrity of the

factfinding process as the role of counsel at trial, Coleman was denied retroactive

effect in Adams v. Illinois, 405 U.S. 278 (1972). Justice Blackmun joined Chief Justice Burger in pronouncing Coleman wrongly decided. Id. at 285, 286. Hamilton and

White, however, were held to be retroactive in Arsenault v. Massachusetts, 393 U.S.

5 (1968). 256 Compare Hudson v. North Carolina, 363 U.S. 697 (1960), with Chewning v.

Cunningham, 368 U.S. 443 (1962), and Carnley v. Cochran, 369 U.S. 506 (1962).

oughgoing investigation and preparation [are] vitally important,

the defendants . . . [are] as much entitled to such aid [of counsel]

during that period as at the trial itself.’’ This language has gradually been expanded upon and the Court has developed a concept of

‘‘a critical stage in a criminal proceeding’’ as indicating when the

defendant must be represented by counsel. Thus, in Hamilton v.

Alabama, 253 the Court noted that arraignment under state law

was a ‘‘critical stage’’ because the defense of insanity had to be

pleaded then or lost, pleas in abatement had to be made then, and

motions to quash on the ground of racial exclusion of grand jurors

or that the grand jury was improperly drawn had to be made then.

White v. Maryland 254 set aside a conviction obtained at a trial at

which defendant’s plea of guilty, entered at a preliminary hearing

where he was without counsel, was introduced as evidence against

him at trial. Finally in Coleman v. Alabama, 255 the Court denominated a preliminary hearing as a ‘‘critical stage’’ necessitating

counsel even though the only functions of the hearing were to determine probable cause to warrant presenting the case to a grand

jury and to fix bail; no defense was required to be presented at that

point and nothing occurring at the hearing could be used against

the defendant at trial. The Court hypothesized that a lawyer might

by skilled examination and cross-examination expose weaknesses

in the prosecution’s case and thereby save the defendant from

being bound over, and could in any event preserve for use in crossexamination at trial and impeachment purposes testimony he could

elicit at the hearing; he could discover as much as possible of the

prosecution’s case against defendant for better trial preparation;

and he could influence the court in such matters as bail and psychiatric examination. The result seems to be that reached in preGideon cases in which a defendant was entitled to counsel if a lawyer might have made a difference. 256

Custodial Interrogation.—At first, the Court followed the

rule of ‘‘fundamental fairness,’’ assessing whether under all the circumstances a defendant was so prejudiced by the denial of access
1442 AMENDMENT 6—RIGHTS OF ACCUSED

257 Crooker v. California, 357 U.S. 433 (1958) (five-to-four decision); Cicenia v.

Lagay, 357 U.S. 504 (1958) (five-to-three). 258 360 U.S. 315 (1959). 259 377 U.S. 201 (1964). See also McLeod v. Ohio, 381 U.S. 356 (1965) (applying

Massiah to the States, in a case not involving trickery but in which defendant was

endeavoring to cooperate with the police). But see Hoffa v. United States, 385 U.S.

293 (1966). Cf. Milton v. Wainwright, 407 U.S. 371 (1972). 260 378 U.S. 478 (1964). 261 384 U.S. 436 (1966). 262 430 U.S. 387 (1977). Chief Justice Burger and Justices White, Blackmun,

and Rehnquist dissented. Id. at 415, 429, 438. Compare Rhode Island v. Innis, 446

U.S. 291 (1980), decided on self-incrimination grounds under similar facts. 263 447 U.S. 264 (1980) Justices Blackmun, White, and Rehnquist dissented. Id.

at 277, 289. But cf. Weatherford v. Bursey, 429 U.S. 545 (1977).

to counsel that his subsequent trial was tainted. 257 It was held in

Spano v. New York 258 that under the totality of circumstances a

confession obtained in a post-indictment interrogation was involuntary, and four Justices wished to place the holding solely on the

basis that post-indictment interrogation in the absence of defendant’s lawyer was a denial of his right to assistance of counsel. That

holding was made in Massiah v. United States, 259 in which federal

officers caused an informer to elicit from the already-indicted defendant, who was represented by a lawyer, incriminating admissions which were secretly overheard over a broadcasting unit.

Then, in Escobedo v. Illinois, 260 the Court held that preindictment

interrogation was a violation of the Sixth Amendment. But Miranda v. Arizona 261 switched from reliance on the Sixth Amendment to the Fifth Amendment’s self-incrimination clause, although

that case still placed great emphasis upon police warnings with regard to counsel and foreclosure of interrogation in the absence of

counsel without a valid waiver by defendant.

Massiah was reaffirmed and in some respects expanded by the

Court. Thus, in Brewer v. Williams, 262 the right to counsel was

found violated when police elicited from defendant incriminating

admissions not through formal questioning but rather through a

series of conversational openings designed to play on the defendant’s known weakness. The police conduct occurred in the post-arraignment period in the absence of defense counsel and despite assurances to the attorney that defendant would not be questioned in

his absence. United States v. Henry 263 held that government

agents violated the Sixth Amendment right to counsel when they

contacted the cellmate of an indicted defendant and promised him

payment under a contingent fee arrangement if he would ‘‘pay attention’’ to incriminating remarks initiated by the defendant and

others. The Court concluded that even if the government agents did

not intend the informant to take affirmative steps to elicit incrimi-
AMENDMENT 6—RIGHTS OF ACCUSED 1443

264 451 U.S. 477 (1981). 265 475 U.S. 625, 636 (1986). 266 475 U.S. at 631. If a prisoner does not ask for the assistance of counsel, however, and voluntarily waives his rights following a Miranda warning, these reasons

disappear. Moreover, although the right to counsel is more difficult to waive at trial

than before trial, ‘‘whatever standards suffice for Miranda’s purposes will also be

sufficient [for waiver of Sixth Amendment rights] in the context of postindictment

questioning.’’ Patterson v. Illinois, 487 U.S. 285, 298 (1988). 267 Arizona v. Roberson, 486 U.S. 675 (1988). 268McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The reason why the right is

‘‘offense-specific’’ is that ‘‘it does not attach until a prosecution is commenced.’’ Id. 269See Michigan v. Jackson, 475 U.S. 625 (1986). 270 467 U.S. 431 (1984).

nating statements from the defendant in the absence of counsel,

the agents must have known that result would follow.

The Court has extended the Edwards v. Arizona 264 rule protecting in-custody requests for counsel to post-arraignment situations where the right derives from the Sixth Amendment rather

than the Fifth. Thus, the Court held in Michigan v. Jackson, ‘‘if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver

of the defendant’s right to counsel for that police-initiated interrogation is invalid.’’ 265 The Court concluded that ‘‘the reasons for

prohibiting the interrogation of an uncounseled prisoner who has

asked for the help of a lawyer are even stronger after he has been

formally charged with an offense than before.’’ 266 The protection,

however, is not as broad under the Sixth Amendment as it is under

the Fifth. While Edwards has been extended to bar custodial questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested, 267

this extension does not apply for purposes of the Sixth Amendment

right to counsel. The Sixth Amendment right is ‘‘offense-specific,’’

and so also is ‘‘its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews.’’ 268 Therefore, while a

defendant who has invoked his Sixth Amendment right to counsel

with respect to the offense for which he is being prosecuted may

not waive that right, he may waive his Miranda-based right not to

be interrogated about unrelated and uncharged offenses.

The remedy for violation of the Sixth Amendment rule is exclusion from evidence of statements so obtained. 269 And, while the

basis for the Sixth Amendment exclusionary rule—to protect the

right to a fair trial—differs from that of the Fourth Amendment

rule—to deter illegal police conduct—exceptions to the Fourth

Amendment’s exclusionary rule can apply as well to the Sixth. In

Nix v. Williams, 270 the Court held the ‘‘inevitable discovery’’ exception applicable to defeat exclusion of evidence obtained as a result

of an interrogation violating the accused’s Sixth Amendment rights.
1444 AMENDMENT 6—RIGHTS OF ACCUSED

271 467 U.S. at 446. 272Michigan v. Harvey, 494 U.S. 344 (1990) (postarraignment statement taken

in violation of Sixth Amendment is admissible to impeach defendant’s inconsistent

trial testimony). 273 388 U.S. 218 (1967). 274 388 U.S. 263 (1967). 275 United States v. Wade, 388 U.S. 218, 224–25 (1967) (citations omitted). 276 Id. at 226 (citations omitted).

‘‘Exclusion of physical evidence that would inevitably have been

discovered adds nothing to either the integrity or fairness of a

criminal trial.’’ 271 Also, an exception to the Sixth Amendment exclusionary rule has been recognized for the purpose of impeaching

the defendant’s trial testimony. 272

Lineups and Other Identification Situations.—The concept

of the ‘‘critical stage’’ was again expanded and its rationale formulated in United States v. Wade, 273 which, with Gilbert v. California, 274 held that lineups are a critical stage and that in-court identification of defendants based on out-of-court lineups or show-ups

without the presence of defendant’s counsel is inadmissible. The

Sixth Amendment guarantee, said Justice Brennan, was intended

to do away with the common-law limitation of assistance of counsel

to matters of law, excluding matters of fact. The abolition of the

fact-law distinction took on new importance due to the changes in

investigation and prosecution since adoption of the Sixth Amendment. ‘‘When the Bill of Rights was adopted there were no organized police forces as we know them today. The accused confronted

the prosecutor and the witnesses against him and the evidence was

marshalled, largely at the trial itself. In contrast, today’s law enforcement machinery involves critical confrontations of the accused

by the prosecution at pretrial proceedings where the results might

well settle the accused’s fate and reduce the trial itself to a mere

formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee

to apply to ‘critical’ stages of the proceedings. . . . The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’ ’’ 275

‘‘It is central to [the principle of Powell v. Alabama] that in addition to counsel’s presence at trial, the accused is guaranteed that

he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence

might derogate from the accused’s right to a fair trial.’’ 276 Counsel’s presence at a lineup is constitutionally necessary because the

lineup stage is filled with numerous possibilities for errors, both inadvertent and intentional, which cannot adequately be discovered
AMENDMENT 6—RIGHTS OF ACCUSED 1445

277 Id. at 227–39. Previously, the manner of an extra-judicial identification affected only the weight, not the admissibility, of identification testimony at trial. Justices White, Harlan, and Stewart dissented, denying any objective need for the

Court’s per se rule and doubting its efficacy in any event. Id. at 250. 278Stovall v. Denno, 388 U.S. 293 (1967). 279Gilbert v. California, 388 U.S. 263, 265–67 (1967) (handwriting exemplars);

Schmerber v. California, 384 U.S. 757, 765–66 (1966) (blood samples). 280 413 U.S. 300 (1973). Justices Brennan, Douglas, and Marshall dissented. Id.

at 326. 281 Id. at 309–10, 312–13. Justice Stewart, concurring on other grounds, rejected

this analysis, id. at 321, as did the three dissenters. Id. at 326, 338–344. ‘‘The fundamental premise underlying all of this Court’s decisions holding the right to counsel applicable at ‘‘critical’ pretrial proceedings, is that a ‘stage’ of the prosecution

must be deemed ‘critical’ for the purposes of the Sixth Amendment if it is one at

which the presence of counsel is necessary ‘to protect the fairness of the trial itself.’’’

Id. at 339 (Justice Brennan dissenting). Examination of defendant by court-appointed psychiatrist to determine his competency to stand trial, after his indictment,

was a ‘‘critical’’ stage, and he was entitled to the assistance of counsel before submitting to it. Estelle v. Smith, 451 U.S. 454, 469–71 (1981). Constructive notice is

insufficient to alert counsel to psychiatric examination to assess future dangerousness of an indicted client. Satterwhite v. Texas, 486 U.S. 249 (1987) (also subjecting

Estelle v. Smith violations to harmless error analysis in capital cases).

and remedied at trial. 277 However, because there was less certainty and frequency of possible injustice at this stage, the Court

held that the two cases were to be given prospective effect only;

more egregious instances, where identification had been based

upon lineups conducted in a manner that was unnecessarily suggestive and conducive to irreparable mistaken identification, could

be invalidated under the due process clause. 278 The Wade-Gilbert

rule is inapplicable to other methods of obtaining identification and

other evidentiary material relating to the defendant, such as blood

samples, handwriting exemplars, and the like, because there is

minimal risk that the absence of counsel might derogate from the

defendant’s right to a fair trial. 279

In United States v. Ash, 280 the Court redefined and modified

its ‘‘critical stage’’ analysis. According to the Court, the ‘‘core purpose’’ of the guarantee of counsel is to assure assistance at trial

‘‘when the accused was confronted with both the intricacies of the

law and the advocacy of the public prosecutor.’’ But assistance

would be less than meaningful in the light of developments in

criminal investigation and procedure if it were limited to the formal trial itself; therefore, counsel is compelled at ‘‘pretrial events

that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused

was confronted, just as at trial, by the procedural system, or by his

expert adversary, or by both.’’ 281 Therefore, unless at the pretrial

stage there was involved the physical presence of the accused at a

trial-like confrontation at which the accused requires the guiding
1446 AMENDMENT 6—RIGHTS OF ACCUSED

282 413 U.S. at 317–21. On the due process standards of identification procedure, see infra p. 1752. 283 United States v. Wade, 388 U.S. 218, 219, 237 (1967); Gilbert v. California,

388 U.S. 263, 269, 272 (1967): Simmons v. United States, 390 U.S. 377, 382–83

(1968). 284Stovall v. Denno, 388 U.S. 293 (1967); Foster v. California, 394 U.S. 440

(1969); Coleman v. Alabama, 399 U.S. 1 (1970). 285 406 U.S. 682, 689 (1972). 286 Id. at 689–90. Justices Brennan, Douglas, and Marshall, dissenting, argued

that it had never previously been doubted that Wade and Gilbert applied in

preindictment lineup situations and that in any event the rationale of the rule was

no different whatever the formal status of the case. Id. at 691. Justice White, a dissenter in Wade and Gilbert, dissented simply on the basis that those two cases controlled this one. Id. at 705. Indictment, as the quotation from Kirby indicates, is not

a necessary precondition. Any initiation of judicial proceedings suffices. E.g., Brewer

v. Williams, 430 U.S. 387 (1977) (suspect had been seized pursuant to an arrest

warrant, arraigned, and committed by court). United States v. Gouveia, 467 U.S.

180 (1984) (Sixth Amendment attaches as of arraignment—there is no right to counhand of counsel, the Sixth Amendment does not guarantee the assistance of counsel.

Since the defendant was not present when witnesses to the

crime viewed photographs of possible guilty parties, since therefore

there was no trial-like confrontation, and since the possibilities of

abuse in a photographic display are discoverable and

reconstructable at trial by examination of witnesses, an indicted

defendant is not entitled to have his counsel present at such a display. 282

Both Wade and Gilbert had already been indicted and counsel

had been appointed to represent them when their lineups were conducted, a fact noted in the opinions and in subsequent ones, 283 but

the cases in which the rulings were denied retroactive application

involved preindictment lineups. 284 Nevertheless, in Kirby v. Illinois 285 the Court held that no right to counsel existed with respect

to lineups that precede some formal act of charging a suspect. The

Sixth Amendment does not become operative, explained Justice

Stewart’s plurality opinion, until ‘‘the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearings, indictment, information, or arraignment. . . .

The initiation of judicial criminal proceedings is far from a mere

formalism. It is the starting point of our whole system of adversary

criminal justice. For it is only then that the Government has committed itself to prosecute, and only then that the adverse positions

of Government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and

procedural criminal law. It is this point, therefore, that marks the

commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.’’ 286 The
AMENDMENT 6—RIGHTS OF ACCUSED 1447

sel for prison inmates placed under administrative segregation during a lengthy investigation of their participation in prison crimes). 287 ‘‘[T]he Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self-incrimination, upon the theory

that custodial interrogation is inherently coercive.’’ 406 U.S. 688, (Emphasis by

Court). 288 ‘‘But Escobedo is not apposite here for two distinct reasons. First, the Court

in retrospect perceived that the ‘prime purpose’ of Escobedo was not to vindicate the

constitutional right to counsel as such, but, like Miranda, ‘to guarantee full effectuation of the privilege against self-incrimination. . . .’ Johnson v. New Jersey, 384

U.S. 719, 729. Secondly, and perhaps even more important for purely practical purposes, the Court has limited the holding of Escobedo to its own facts, Johnson v.

New Jersey, supra, at 733–34, and those facts are not remotely akin to the facts

of the case before us.’’ Id. at 689. But see id. at 693 n.3 (Justice Brennan dissenting). 289Townsend v. Burke, 334 U.S. 736 (1948). 290Mempa v. Rhay, 389 U.S. 128 (1967) (applied retroactively in McConnell v.

Rhay, 393 U.S. 2 (1968)). 291 Counsel is not a guaranteed right in prison disciplinary proceedings. Wolff

v. McDonnell, 418 U.S. 539, 560–70 (1974); Baxter v. Palmigiano, 425 U.S. 308,

314–15 (1976). Other cases are assembled infra under analysis of the Fourteenth

Amendment due process clause. 292Specht v. Patterson, 386 U.S. 605 (1967). 293 In re Groban, 352 U.S. 330 (1957). Four Justices dissented.

Court’s distinguishing of the underlying basis for Miranda v. Arizona 287 left that case basically unaffected by Kirby, but it appears

that Escobedo v. Illinois, 288 and perhaps other cases, is greatly restricted thereby.

Post-Conviction Proceedings.—Counsel is required at the

sentencing stage, 289 and the Court has held that where sentencing

was deferred after conviction and the defendant was placed on probation, he must be afforded counsel at a hearing on revocation of

probation and imposition of the deferred sentence. 290 Beyond this

stage, however, it would appear that the issue of counsel at hearings on the granting of parole or probation, the revocation of parole

which has been imposed following sentencing, and prison disciplinary hearings will be determined according to due process and

equal protection standards rather than by further expansion of the

Sixth Amendment. 291

Noncriminal and Investigatory Proceedings.—Commitment proceedings which lead to the imposition of essentially criminal punishment are subject to the due process clause and require

the assistance of counsel. 292 A state administrative investigation

by a fire marshal inquiring into the causes of a fire was held not

to be a criminal proceeding and hence, despite the fact that the petitioners had been committed to jail for noncooperation, not the

type of hearing at which counsel was requisite. 293 Another decision

refused to extend the right to counsel to investigative proceedings

antedating a criminal prosecution, and sustained the contempt conviction of private detectives who refused to testify before a judge
1448 AMENDMENT 6—RIGHTS OF ACCUSED

294 Anonymous v. Baker, 360 U.S. 287 (1959). Four Justices dissented.

authorized to conduct a non-prosecutorial, fact-finding inquiry akin

to a grand jury proceeding, and who based their refusal on the

ground that their counsel were required to remain outside the

hearing room. 294