1491

SIXTH AMENDMENT 

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS 

CONTENTS

Page

Criminal Prosecutions ............................................................................................................... 1493 

Coverage .............................................................................................................................. 1493 

Offenses Against the United States ........................................................................... 1494 

Right to a Speedy and Public Trial .......................................................................................... 1494

Speedy Trial ........................................................................................................................ 1494 

Source and Rationale .................................................................................................. 1494 

Application and Scope ................................................................................................. 1495 

When the Right Is Denied .......................................................................................... 1496 

Public Trial ......................................................................................................................... 1498 

Right to Trial by Impartial Jury .............................................................................................. 1500

Jury Trial ............................................................................................................................ 1500 

The Attributes and Function of the Jury .................................................................. 1502 

Criminal Proceedings to Which the Guarantee Applies ........................................... 1505 

Impartial Jury .................................................................................................................... 1507 

Place of Trial—Jury of the Vicinage ........................................................................................ 1514

Notice of Accusation .................................................................................................................. 1516 

Confrontation ............................................................................................................................. 1517 

Compulsory Process ................................................................................................................... 1525 

Assistance of Counsel ................................................................................................................ 1525 

Development of an Absolute Right to Counsel at Trial ................................................... 1525 

Powell v. Alabama ....................................................................................................... 1526 

Johnson v. Zerbst ........................................................................................................ 1527 

Betts v. Brady and Progeny ....................................................................................... 1528 

Gideon v. Wainwright ................................................................................................. 1530 

Protection of the Right to Retained Counsel ............................................................. 1531 

Effective Assistance of Counsel .................................................................................. 1533 

Self-Representation ..................................................................................................... 1536 

Right to Assistance of Counsel in Nontrial Situations .................................................... 1537 

Judicial Proceedings Before Trial .............................................................................. 1537 

Custodial Interrogation ............................................................................................... 1538 

Lineups and Other Identification Situations ............................................................ 1541 

Post-Conviction Proceedings ....................................................................................... 1544 

Noncriminal and Investigatory Proceedings ............................................................. 1544 

1493

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 and the Advance of the Flag,’’ 

supra. 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 

1494 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. Stranahan, 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 1495

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 

into 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 may 

1496 AMENDMENT 6—RIGHTS OF ACCUSED 

implicated 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, 404 U.S. 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). 

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 

AMENDMENT 6—RIGHTS OF ACCUSED 1497

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). 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 Barker v. Wingo, 407 U.S. 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 

to pass scrutiny under this guarantee, 22 but on the other hand neither 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

1498 AMENDMENT 6—RIGHTS OF ACCUSED 

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). 

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). 

Public 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 

AMENDMENT 6—RIGHTS OF ACCUSED 1499

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 prosecutions’’ 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). 

against state deprivation by the due process clause, 31 but it is not 

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 

2 and 1/2 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 

1500 AMENDMENT 6—RIGHTS OF ACCUSED 

39Gannett Co. v. DePasquale, 443 U.S. 368 (1979). 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 also First

Amendment discussion, ‘‘Government and the Conduct of Trials.’’ 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 (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. 

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

Amendment, however, has been held to protect public and press access 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

AMENDMENT 6—RIGHTS OF ACCUSED 1501

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). 

right was guaranteed in the constitutions of the original 13 States, 

was guaranteed in the body of the Constitution 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 parVerDate Apr<15>2004 10:27 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00009 Fmt 8222 Sfmt 8222 C:\CONAN\CON032.SGM PRFM99 PsN: CON032
1502 AMENDMENT 6—RIGHTS OF ACCUSED 

50 391 U.S. at 159. Thus, state trials conducted before Duncan was decided were 

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

ticular trial which is held without a jury is unfair, 50 it is possible 

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

alone. 51

The Attributes and Function 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 

AMENDMENT 6—RIGHTS OF ACCUSED 1503

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

86-92. 59 399 U.S. 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). 

60 399 U.S. 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. 

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 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

1504 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. 63 406 U.S. at 414, and Johnson v. Louisiana, 406 U.S. 356, 380, 395, 397, 399 

(1972) (Justices Douglas, Brennan, Stewart, and Marshall). 64 406 U.S. 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). 65See In re Winship, 397 U.S. 358, 364 (1970). 66Sullivan v. Louisiana, 508 U.S. 275 (1993). 67 United States v. Gaudin, 515 U.S. 506 (1995). 

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 

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

Certain functions of the jury are likely to remain consistent between the federal and state court systems. For instance, the requirement that a jury find a defendant guilty beyond a reasonable 

doubt, which had already been established under the Due Process 

Clause, 65 has been held to be a standard mandated by the Sixth 

Amendment. 66 The Court further held that the Fifth Amendment 

Due Process Clause and the Sixth Amendment require that a jury 

find a defendant guilty of every element of the crime with which 

he is charged, including questions of mixed law and fact. 67 Thus,

AMENDMENT 6—RIGHTS OF ACCUSED 1505

68Gaudin, 515 U.S. at 523. 69 Neder v. United States, 527 U.S. 1 (1999). 70District 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). 71District of Columbia v. Colts, 282 U.S. 63 (1930). 72Duncan v. Louisiana, 391 U.S. 145, 159–62 (1968); Dyke v. Taylor Implement 

Mfg. Co., 391 U.S. 216 (1968). 73 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, 399 U.S. 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) . 74Lewis v. United States, 518 U.S. 322 (1996). 75 United States v. Zucker, 161 U.S. 475, 481 (1896). 

a district court presiding over a case of providing false statements 

to a federal agency in violation of 18 U.S.C. §1001 erred when it 

took the issue of the ‘‘materiality’’ of the false statement away from 

the jury. 68 Later, however, the Court backed off from this latter 

ruling, holding that failure to submit the issue of materiality to the 

jury in a tax fraud case can constitute harmless error. 69

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 70 or by the nature of the offense. 71 This line has 

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

States 72 and the Court has now held ‘‘that no offense can be 

deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.’’ 73 A defendant 

who is prosecuted in a single proceeding for multiple petty offenses, 

however, does not have a constitutional right to a jury trial, even 

if the aggregate of sentences authorized for the offense exceeds six 

months. 74

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. 75 Thus, a civil action to 

1506 AMENDMENT 6—RIGHTS OF ACCUSED 

76 Id. See also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); 

Hepner v. United States, 213 U.S. 103 (1909). 77Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). 78McKeiver v. Pennsylvania, 403 U.S. 528 (1971). 79 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. 80 391 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). The 

distinction between criminal and civil contempt may be somewhat more elusive. 

International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (fines levied on the 

union were criminal in nature where the conduct did not occur in the court’s presence, the court’s injunction required compliance with an entire code of conduct, and 

the fines assessed were not compensatory). 81For instance, the Court has held that whether a defendant ‘‘visibly possessed 

a gun’’ during a crime may be designated by a state as a sentencing factor, and determined by a judge based on the preponderance of evidence. McMillan v. Pennsylvania, 477 U.S. 79 (1986). It should be noted that these cases may also implicate 

the Fourteenth Amendment, as a criminal conviction is generally established by a 

jury using the ‘‘beyond a reasonable doubt’’ standard, while sentencing factors are 

generally evaluated by a judge using few evidentiary rules and under the more lenient ‘‘preponderance of the evidence’’ standard. See, e.g., id. at 86-93. See discussion

in ‘‘Proof, Burden of Proof, and Presumptions’’ infra.

collect statutory penalties and punitive damages, because not technically criminal, has been held to implicate no right to jury trial. 76

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, 77 and the same 

type of analysis could be used with regard to other sanctions. There 

is, however, no constitutional right to a jury trial in juvenile proceedings, at least in state systems and probably in the federal system as well. 78

In a long line of cases, the Court had held that no constitutional right to jury trial existed in trials of criminal contempt. 79

But in Bloom v. Illinois, 80 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.’’ 

Within the context of a criminal trial, what factual issues are 

submitted to the jury may be influenced by whether the fact to be 

established is an element of a crime or a sentencing factor. While 

the right to a jury extends to all facts establishing the elements of 

a crime, sentencing factors may be evaluated by a judge. 81 The

AMENDMENT 6—RIGHTS OF ACCUSED 1507

82 530 U.S.466, 490 (2000) (interpreting New Jersey’s ‘‘hate crime’’ law). It 

should be noted that prior to its decision in Apprendi the Court had held that factors determinative of minimum sentences could be decided by a judge. McMillan v. 

Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan was put in 

doubt by Apprendi, McMillan was subsequently reaffirmed in Harris v. United 

States, 122 S. Ct. 2406 (2002). 83Walton v. Arizona, 497 U.S. 639 (1990) overruled by Ring v. Arizona, 122 S. 

Ct. 2428 (2002). The Court’s decision in Ring would also appear to overrule a number of previous decisions on the same issue such as Spaziano v. Florida, 468 U.S. 

447, 459 (1984) and Hildwin v. Florida, 490 U.S. 638, 640–41 (1989) (per curiam), 

and undercut the reasoning of another. See 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).84This limiting principle does not apply to sentencing enhancements based on 

recidivism. Apprendi, 530 U.S. at 488. As enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, establishing the existence 

of previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez-Torres v. United 

States, 523 U.S. 224 (1998) (deported alien reentering the United States subject to 

a maximum sentence of two years, but upon proof of felony record, is subject to a 

maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has burden of establishing a prior conviction, a defendant can be required 

to bear the burden of challenging the validity of such a conviction). 85 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). 

Court has generally taken a formalistic approach to this issue, allowing states to essentially designate which facts fall under which 

of these two categories. In an exception to this deference, however, 

the Court in Apprendi v. New Jersey held that a sentencing factor 

cannot be used to increase the maximum penalty imposed for the 

underlying crime. 82

Despite suggestions that Apprendi was a decision of limited 

import, the Court’s reasoning ultimately led to the overruling of 

significant prior case law which had upheld a judge’s authority to 

decide whether or not to impose capital punishment by evaluating 

aggravating and mitigating sentencing factors. 83 On the other 

hand, the requirement that a sentencing factor cannot increase a 

maximum penalty has been subject to at least one exception. 84 Further, the impact of these decisions might be evaded by legislatures 

revising criminal provisions to increase maximum penalties, and 

then providing for mitigating factors within the newly established 

sentencing range. 

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, 85 but as well by the due 

1508 AMENDMENT 6—RIGHTS OF ACCUSED 

86Thus, 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). 87 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. 88Turner v. Louisiana, 379 U.S. 466 (1965). 89Taylor 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, 419 U.S. at 538. 

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. 90Lockhart 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).

process and equal protection clauses of the Fourteenth, 86 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. 87 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. 88

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.’’ 89 This requirement applies only to jury panels or venires from which petit 

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

themselves. 90 ‘‘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 

AMENDMENT 6—RIGHTS OF ACCUSED 1509

91Duren v. Missouri, 439 U.S. 357, 364 (1979). 92Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 

(1979). 93 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). 94Frazier 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). 95 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). 96 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 

the jury-selection process.’’ 91 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. 92 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. 93

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. 94 A violation of a defendant’s 

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. 95 Exposure of the jury to possibly 

prejudicial material and disorderly courtroom activities may deny 

impartiality and must be inquired into. 96 Private communications, 

1510 AMENDMENT 6—RIGHTS OF ACCUSED 

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

1025 (1984). 97 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). 98 Irvin v. Dowd, 366 U.S. 717 (1961) (felony); Groppi v. Wisconsin, 400 U.S. 505 

(1971) (misdemeanor). 99Frank v. Mangum, 237 U.S. 309 (1915); Irvin v. Dowd, 366 U.S. 717 (1961); 

Sheppard v. Maxwell, 384 U.S. 333 (1966). 100 Jackson v. Denno, 378 U.S. 368 (1964) (overruling Stein v. New York, 346 

U.S. 156 (1953)). 101 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 out-of-court statement is admissible against defendant if co-defendant takes 

the stand and denies having made the statement). 102 391 U.S. 510 (1968). 

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

raising the dangers thereof, is not to be condoned. 97 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. 98 It is undeniably a violation of due process to subject a defendant to trial in an 

atmosphere of mob or threatened mob domination. 99

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. 100 Similarly invalid is 

a jury instruction in a joint trial to consider a confession only with 

regard to the defendant against whom it is admissible, and to disregard that confession as against a co-defendant which it implicates. 101

In Witherspoon v. Illinois, 102 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 

AMENDMENT 6—RIGHTS OF ACCUSED 1511

103 391 U.S. 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). 104Morgan v. Illinois, 504 U.S. 719 (1992). 105Wainwright v. Witt, 469 U.S. 412, 424 (1985), (quoting Adams v. Texas, 448 

U.S. 38, 45 (1980)). 106Wainwright 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). 107Lockhart v. McCree, 476 U.S. 162 (1986). 108 476 U.S. at 183. 109 476 U.S. at 180. 110 Buchanan v. Kentucky, 483 U.S. 402 (1987). 

‘‘organized to return a verdict of death.’’ 103 A court may not refuse 

a defendant’s request to examine potential jurors to determinew 

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

law are inadequate. 104

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.’’’ 105

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.’’’ 106 Persons properly excludable under 

Witherspoon may also be excluded from the guilt/innocence phase 

of a bifurcated capital trial. 107 It had been argued that to exclude 

such persons from the guilt/innocence phase would result in a jury 

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.’’ 108 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. 109 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. 110

1512 AMENDMENT 6—RIGHTS OF ACCUSED 

111Gray v. Mississippi, 481 U.S. 648 (1987). 112 Ross v. Oklahoma, 487 U.S. 81 (1987). The same rule applies in the federal 

setting. United States v. Martinez-Salazar, 528 U.S. 304 (2000). 113 487 U.S. at 86, 87. 114Lewis v. United States, 146 U.S. 370 (1892); Pointer v. United States, 151 

U.S. 396 (1894). 115 Reynolds v. United States, 98 U.S. 145 (1879). See Witherspoon v. Illinois, 

391 U.S. 510, 513–15, 522 n.21 (1968). 116Mu’Min v. Virginia, 500 U.S. 415 (1991). 117 Ham v. South Carolina, 409 U.S. 524 (1973). 

Exclusion of one juror qualified under Witherspoon constitutes

reversible error, and the exclusion may not be subjected to harmless error analysis. 111 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. 112 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.’’’ 113

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. 114 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. 115 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 

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

Amendment. 116 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. 117 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 

AMENDMENT 6—RIGHTS OF ACCUSED 1513

118Turner 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. 119 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 

195.120 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. 121 380 U.S. 202 (1965). 122 476 U.S. 79 (1986). 123See Fourteenth Amendment discussion of ‘‘Equal Protection and Race,’’ infra. 124Powers v. Ohio, 499 U.S. 400 (1991) (defendant has standing to raise equal 

protection rights of excluded juror of different race). 125 493 U.S. 474 (1990). But see Trevino v. Texas, 503 U.S. 562 (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).

bias. 118 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. 119

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. 120 While, in Swain v. Alabama, 121 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, 122 with the result that a defendant may now 

establish an equal protection violation resulting from a prosecutor’s 

use of peremptory challenges to systematically exclude blacks from 

the jury. 123 A violation can occur whether or not the defendant and 

the excluded jurors are of the same race. 124 Racially discriminatory 

use of peremptory challenges does not, however, constitute a violation of the Sixth Amendment, the Court ruled in Holland v. Illinois. 125 The Sixth Amendment ‘‘no more forbids the prosecutor to 

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

1514 AMENDMENT 6—RIGHTS OF ACCUSED 

126 493 U.S. at 487. 127 493 U.S. 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. 128Georgia v. McCollum, 505 U.S. 42 (1992). 129 505 U.S. at 57. 130 505 U.S. at 58. 131 ‘‘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.’’ 132 ‘‘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. 

on the basis of innumerable other generalized characteristics.’’ 126

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.’’ 127

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. 128 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.’’ 129 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. 130

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, 131 but much criticism arose over the absence of any guarantee that the jury be drawn from the ‘‘vicinage’’ or neighborhood 

of the crime. 132 Madison’s efforts to write into the Bill of Rights an 

AMENDMENT 6—RIGHTS OF ACCUSED 1515

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

(1833). 133The controversy is conveniently summarized in Williams v. Florida, 399 U.S. 

78, 92–96 (1970). 134 Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96, 101 (1888). 135Salinger v. Loisel, 265 U.S. 224 (1924). 136 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). 137 United States v. Cabrales, 524 U.S. 1 (1998). 138 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). 139 Burton v. United States, 202 U.S. 344 (1906). 140 Armour Packing Co. v. United States, 209 U.S. 56 (1908). 141 United States v. Johnson, 323 U.S. 273, 274 (1944). 142 Hagner v. United States, 285 U.S. 427, 429 (1932). 143 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). 

express vicinage provision were rebuffed by the Senate, and the 

present language was adopted as a compromise. 133 The provisions 

limit the Federal Government only. 134

An accused cannot be tried in one district under an indictment 

showing that the offense was committed in another; 135 the place 

where the offense is charged to have been committed determines 

the place of trial. 136 Thus, a defendant cannot be tried in Missouri 

for money-laundering if the charged offenses occurred in Florida 

and there was no evidence that the defendant had been involved 

with the receipt or transportation of the proceeds from Missouri. 137

In a prosecution for conspiracy, the accused may be tried in any 

State and district where an overt act was performed. 138 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. 139 The offense of obtaining transportation of property in 

interstate commerce at less than the carrier’s published rates, 140 or

the sending of excluded matter through the mails, 141 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 was held to have been committed in 

that district although the letter was posted elsewhere. 142 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. 143 The assignment of a district judge from one 

district to another, conformably to statute, does not create a new 

1516 AMENDMENT 6—RIGHTS OF ACCUSED 

144Lamar v. United States, 241 U.S. 103 (1916). 145 Jones v. United States, 137 U.S. 202, 211 (1890); United States v. Dawson, 

56 U.S. (15 How.) 467, 488 (1853). 146 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). 147 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). 148Potter v. United States, 155 U.S. 438, 444 (1894). 149 United States v. Carll, 105 U.S. 611 (1882). 150 United States v. Cook, 84 U.S. (17 Wall.) 168, 174 (1872). 151 Rosen v. United States, 161 U.S. 29, 40 (1896). 152 United States v. Van Duzee, 140 U.S. 169, 173 (1891). 

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. 144 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. 145 The place of 

trial may be designated by statute after the offense has been committed. 146

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. 147 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, 148 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. 149 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. 150 Despite the omission of obscene particulars, an indictment in general language is 

good if the unlawful conduct is described so as reasonably to inform 

the accused of the nature of the charge sought to be established 

against him. 151 The Constitution does not require the Government 

to furnish a copy of the indictment to an accused. 152 The right to 

AMENDMENT 6—RIGHTS OF ACCUSED 1517

153 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). 154Mattox v. United States, 156 U.S. 237, 242–43 (1895). 155Kirby 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). 156Pointer 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). 157 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). 158Thus, 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). 159Motes v. United States, 178 U.S. 458 (1900). 160 Reynolds v. United States, 98 U.S. 145 (1879). 

notice of accusation is so fundamental a part of procedural due 

process that the States are required to observe it. 153

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’’ 154 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.’’ 155 Before 1965, 

when the Court held the right to be protected against state abridgment, 156 it had little need to clarify the relationship between the 

right of confrontation and the hearsay rule, 157 inasmuch as its supervisory powers over the inferior federal courts permitted it to 

control the admission of hearsay on this basis. 158 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 

absence of the witness was attributable to the negligence of the 

prosecution, 159 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. 160 It had also recVerDate Apr<15>2004 10:27 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00025 Fmt 8222 Sfmt 8222 C:\CONAN\CON032.SGM PRFM99 PsN: CON032
1518 AMENDMENT 6—RIGHTS OF ACCUSED 

161Kirby v. United States, 174 U.S. 47, 61 (1899); Robertson v. Baldwin, 165 

U.S. 275, 282 (1897). 162Mattox v. United States, 156 U.S. 237, 240 (1895). 163Kirby 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. 164Portuondo v. Agard, 529 U.S. 61 (2000). 165Pointer 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). 166 380 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. 167 380 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 effecognized the admissibility of dying declarations 161 and of testimony 

given at a former trial by a witness since deceased. 162 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. 163 A prosecutor, however, can comment on a defendant’s presence at trial, and call attention to the defendant’s opportunity to 

tailor his or her testimony to comport with that of previous witnesses. 164

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. 165

Thus, in Pointer v. Texas, 166 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. 

Alabama, 167 the prosecution called as a witness the defendant’s alVerDate Apr<15>2004 10:27 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00026 Fmt 8222 Sfmt 8222 C:\CONAN\CON032.SGM PRFM99 PsN: CON032
AMENDMENT 6—RIGHTS OF ACCUSED 1519

tively 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). 168 391 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). Bruton was held applicable, however, where a blank space or the word 

‘‘deleted’’ is substituted for the defendant’s name in a co-defendant’s confession, 

making such confession incriminating of the defendant on its face. Gray v. Maryland, 523 U.S. 185 (1998). 169 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. 170Lee v. Illinois, 476 U.S. 530, 541 (1986). Lilly v. Virginia, 527 U.S. 116 

(1999).

leged 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, 168 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. 169 The Court continues to view as ‘‘presumptively unreliable accomplices’ confessions that incriminate defendants.’’ 170

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

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

1520 AMENDMENT 6—RIGHTS OF ACCUSED 

171 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). 

172 399 U.S. 149 (1970). 

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.’’ 171

Further, the Court in California v. Green 172 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 1521

173 399 U.S. 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). 174 400 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. 175 400 U.S. 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.’’ 173 But in Dutton v. Evans, 174 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. 175

1522 AMENDMENT 6—RIGHTS OF ACCUSED 

176 448 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. 177 448 U.S. at 65 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107 (1934)). 178 448 U.S. 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). 179 475 U.S. 387 (1986). 180 475 U.S. at 394-95. 181White v. Illinois, 502 U.S. 346, 357 (1992). 182 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, 176 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.’’’ 177 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.’’ 178

Roberts was narrowed in United States v. Inadi, 179 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. 180 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. 181 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. 182

AMENDMENT 6—RIGHTS OF ACCUSED 1523

183 487 U.S. 1012 (1988). 184On 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. 185 487 U.S. at 1015, 1021. 186 487 U.S. at 1018 n.2. 187 497 U.S. 836 (1990). 188 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 

a child from trauma while testifying. In Coy v. Iowa, 183 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. 184 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.’’ 185

Squarely rejecting the Wigmore view ‘‘that the only essential interest preserved by the right was cross-examination,’’ 186 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. 187 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. 188 Beginning with the propoVerDate Apr<15>2004 10:27 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00031 Fmt 8222 Sfmt 8222 C:\CONAN\CON032.SGM PRFM99 PsN: CON032
1524 AMENDMENT 6—RIGHTS OF ACCUSED 

189 497 U.S. at 849 (emphasis original). 

190 497 U.S. 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. 

191 497 U.S. at 855. 

192 497 U.S. at 857. 

193 497 U.S. at 855. 

194Kentucky v. Stincer, 482 U.S. 730, 744 (1987). 

195Michigan 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.’’ 189 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.’’ 190 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,’’ 191 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.’’ 192 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. 193

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. 194 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. 195

AMENDMENT 6—RIGHTS OF ACCUSED 1525

196 United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800) (Justice Chase 

on circuit). 197 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

1786 (1833). See Rosen v. United States, 245 U.S. 467 (1918). 198Washington v. Texas, 388 U.S. 14, 19–23 (1967). Texas did permit coparticipants to testify for the prosecution. 199Taylor v. Illinois, 484 U.S. 400 (1988). 200 480 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, 196 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. 197 ‘‘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. 198

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. 199

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.’’ 200

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 

indication of the understanding associated with the language emVerDate Apr<15>2004 10:27 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00033 Fmt 8222 Sfmt 8222 C:\CONAN\CON032.SGM PRFM99 PsN: CON032
1526 AMENDMENT 6—RIGHTS OF ACCUSED 

201W. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 8–26 (1955). 202Section 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). 203 287 U.S. 45 (1932). 

ployed. 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. 201 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. 202 It was 

not until the 1930s that the Supreme Court began expanding the 

clause to its present scope. 

Powell v. Alabama.—The expansion began in Powell v. Alabama, 203 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 

the issue or otherwise inadmissible. He lacks both the skill and 

AMENDMENT 6—RIGHTS OF ACCUSED 1527

204 287 U.S. at 68-69. 

205 287 U.S. at 71. 

206 304 U.S. 458 (1938). 

207 304 U.S. at 462, 463. 

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.’’ 204

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 . . . .’’ 205

Johnson v. Zerbst.—Next step in the expansion came in 

Johnson v. Zerbst, 206 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.’’ 207 Any waiver, the Court ruled, must be by 

the intelligent choice of the defendant, will not be presumed from 

1528 AMENDMENT 6—RIGHTS OF ACCUSED 

208 304 U.S. at 464-65. 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). 209 316 U.S. 455 (1942). 210 316 U.S. at 461-62, 465. 211 316 U.S. at 471, 473. 212 316 U.S. at 474 (joined by Justices Douglas and Murphy). 213 287 U.S. 45, 71 (1932). 214 368 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. 208

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. 209 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.’’ 210 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. 211

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. 212

Over time the Court abandoned the ‘‘special circumstances’’ 

language of Powell v. Alabama 213 when capital cases were involved 

and finally in Hamilton v. Alabama, 214 held that in a capital case 

AMENDMENT 6—RIGHTS OF ACCUSED 1529

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). 

215Gideon v. Wainwright, 372 U.S. 335, 350 (1963). 

216 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. 

217Technicality 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. 

218The 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.’’ 215 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, 216 (2) the technical complexity of the charges or of possible defenses to the charges, 217 and (3) events occurring at trial that 

raised problems of prejudice. 218 The last characteristic especially 

had been utilized by the Court to set aside convictions occurring in 

1530 AMENDMENT 6—RIGHTS OF ACCUSED 

219 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. 220Quicksal 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). 221 372 U.S. 335 (1963). 222 372 U.S. at 344. 223 372 U.S. 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, 372 U.S. 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. 224Scott 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. The Court has also extended the right 

of assistance of counsel to juvenile proceedings. In re Gault, 387 U.S. 1 (1967). See

also Specht v. Patterson, 386 U.S. 605 (1967). 

the absence of counsel, 219 and the last case rejecting a claim of denial of assistance of counsel had been decided in 1950. 220

Gideon v. Wainwright.—Against this background, a unanimous Court in Gideon v. Wainwright 221 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.’’ 222 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. 223 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. 224 The Court subsequently 

extended the right to cases where a suspended sentence or probaVerDate Apr<15>2004 10:27 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00038 Fmt 8222 Sfmt 8222 C:\CONAN\CON032.SGM PRFM99 PsN: CON032
AMENDMENT 6—RIGHTS OF ACCUSED 1531

225 Alabama v. Shelton, 122 S. Ct. 1764 (2002). 226Pickelsimer 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). 227 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); But see Nichols v. United States, 

511 U.S. 738 (1994) (as Scott v. Illinois, 440 U.S. 367 (1979) provides that an 

uncounseled misdemeanor conviction is valid if defendant is not incarcerated, such 

a conviction may be used as the basis for penalty enhancement upon a subsequent 

conviction). 228 348 U.S. 3 (1954). 229 348 U.S. 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). 

tionary period is imposed, on the theory that any future incarceration which occurred would be based on the original uncounseled 

conviction. 225

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, 226 but also may not be subsequently used either to 

support guilt in a new trial or to enhance punishment upon a valid 

conviction. 227

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, 228 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.’’ 229 But the 

right to retain counsel of choice does not bar operation of forfeiture 

1532 AMENDMENT 6—RIGHTS OF ACCUSED 

230 491 U.S. 617 (1989). 231 21 U.S.C. § 853. 232 491 U.S. at 626. 233The 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. 234Dissenting 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). 235 Holloway v. Arkansas, 435 U.S. 475 (1978). Counsel had been appointed by 

the court. 236 Cuyler v. Sullivan, 446 U.S. 335 (1980). 237 446 U.S. 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). 

provisions, even if the result is to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States, 230

the Court upheld a federal statute requiring forfeiture to the government of property and proceeds derived from drug-related crimes 

constituting a ‘‘continuing criminal enterprise,’’ 231 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.’’ 232 Because the statute 

vests title to the forfeitable assets in the United States at the time 

of the criminal act, 233 the defendant has no right to give them to 

a ‘‘third party’’ even if the purpose is to exercise a constitutionally 

protected right. 234

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. 235 Subsequently, the Court 

elaborated upon this principle and extended it. 236 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. 237

AMENDMENT 6—RIGHTS OF ACCUSED 1533

238 Herring v. New York, 422 U.S. 853, 857 (1975). 239 425 U.S. 80 (1976). 240Geders 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. 241 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). 242 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). 243McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). 244Powell v. Alabama, 287 U.S. 45, 71–72 (1932); Glasser v. United States, 315 

U.S. 60, 70 (1942). 

‘‘[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 

constitutionalized in the Sixth and Fourteenth Amendments.’’ 238 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, 239 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. 240 Other direct and indirect restraints upon counsel and his discretion have been found to be in violation of the 

Amendment. 241 Actions of governmental investigative agents may 

interfere as well with the relationship of defense and counsel. 242

Effective Assistance of Counsel.—‘‘[T]he right to counsel is 

the right to the effective assistance of counsel.’’ 243 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.’’ 244 Of course, 

the government must not interfere with representation, either 

1534 AMENDMENT 6—RIGHTS OF ACCUSED 

245 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 divergent 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). 246 Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). 247 446 U.S. 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). 248 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); Mickens v. Taylor, 

122 S. Ct. 1237 (2002) (failure of judge who knew or should have known of an attorney’s conflicting interest to inquire as to whether such conflict was prejudicial not 

grounds for automatic reversal). 249 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). 

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, 245 but the Sixth Amendment 

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.’’ 246

That is, a criminal trial initiated and conducted by government is 

state action that 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. 247

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. 248 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, 249 it was not until 1984, in Strickland v. 

AMENDMENT 6—RIGHTS OF ACCUSED 1535

250 466 U.S. 668 (1984). 251Strickland involved capital sentencing, and the Court left open the issue of 

what standards might apply in ordinary sentencing, where there is generally far 

more discretion than in capital sentencing, or in the guilt/innocence phase of a capital trial. 466 U.S. at 686. 252 466 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, 505 U.S. 42 (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). 253 466 U.S. at 694. 254 466 U.S. at 699. Accord, Darden v. Wainwright, 477 U.S. 168 (1986) (decision 

not to introduce mitigating evidence). In Hill v. Lockhart, 474 U.S. 52 (1985), 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. 255 506 U.S. 364 (1993). 

Washington, 250 that the Court articulated a general test for ineffective assistance of counsel in criminal trials and in capital sentencing proceedings. 251

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. 252 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.’’ 253

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. 254 In Lockhart

v. Fretwell, 255 the Court refined the Strickland test to require that 

not only would a different trial result be probable because of attorVerDate Apr<15>2004 10:27 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00043 Fmt 8222 Sfmt 8222 C:\CONAN\CON032.SGM PRFM99 PsN: CON032
1536 AMENDMENT 6—RIGHTS OF ACCUSED 

256 506 U.S. at 368-70 (failure of counsel to raise a constitutional claim that was 

valid at time of trial did not constitute ‘‘prejudice’’ because basis of claim had since 

been overruled). 257Williams v. Taylor, 529 U.S. 362, 391-93 (2000). See, e.g. Nix. v. Whiteside, 

475 U.S. 157, 175-76 (1986)(a defendant cannot benefit from the fact that counsel’s 

interference with his perjured testimony would have affected a trial’s outcome.) 258See, e.g., Glover v. United States, 531 U.S. 198 (2001) (6 to 21 month increase in prison term is sufficient ‘‘prejudice’’ under Strickland to raise issue of ineffective counsel). 259 United States v. Cronic, 466 U.S. 648, 658 (1984). 260 But see Bell v. Cone, 122 S. Ct. 1843 (2002) (failure to introduce mitigating 

evidence and waiver of closing argument in penalty phase of death penalty case was 

not failure to test prosecution’s case, where mitigating evidence had been presented 

during guilt phase and where waiver of argument deprived skilled prosecutor an opportunity for rebuttal); Mickens v. Taylor, 122 S. Ct. 1237 (2002) (failure of judge 

who knew or should have known of an attorney’s conflicting interest to inquire as 

to whether such conflict was prejudicial not grounds for automatic reversal). 261 Also not constituting per se ineffective assistance is a defense counsel’s failure to file a notice of appeal, or even to consult with the defendant about an appeal. 

Roe v. Flores-Ortega, 528 U.S. 470 (2000). Lozada v. Deeds, 498 U.S. 430, 432 

(1991) (per curiam). 262Faretta 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). 

ney performance, but that the trial result which did occur was fundamentally unfair or unreliable. 256

However, the Court has since held that Lockhart was merely 

intended to prevent a defendant from benefitting from undeserved 

‘‘windfalls’’ in the trial process, 257 and was not an invitation to 

courts to weigh and discount the prejudicial effect of a changed 

trial result. 258 Further, there are times when a court is required 

to presume prejudice, 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.’’ 259 These situations include actual or constructive denial of counsel, denial of such basics as the 

right to effective cross-examination, or failure of counsel to subject 

the prosecution’s case to meaningful adversarial testing. 260 However, ‘‘[a]part from circumstances of that magnitude . . . there is 

generally no basis for finding a Sixth Amendment violation unless 

the accused can show [prejudice].’’ 261

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. 262 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 

AMENDMENT 6—RIGHTS OF ACCUSED 1537

263Martinez v. Court of App. of Cal., Fourth App. Dist., 528 U.S. 152 (2000). 

The Sixth Amendment itself ‘‘does not include any right to appeal.’’ 528 U.S. at 160. 264 465 U.S. 168 (1984). 265 465 U.S. at 178. 266 465 U.S. at 184. 267 287 U.S. 45, 57 (1932). 268 368 U.S. 52 (1961). 269 373 U.S. 59 (1963). 

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 right applies only at 

trial; there is no constitutional right to self-representation on direct 

appeal from a criminal conviction. 263

The essential elements of self-representation were spelled out 

in McKaskle v. Wiggins, 264 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.’’ 265 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. 266

Right to Assistance of Counsel in Nontrial Situations 

Judicial Proceedings Before Trial.—Dicta in Powell v. Alabama 267 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, thoroughgoing 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, 268 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 269 set aside a conviction obtained at a trial at 

which defendant’s plea of guilty, entered at a preliminary hearing 

1538 AMENDMENT 6—RIGHTS OF ACCUSED 

270 399 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). 271 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). 272 Crooker v. California, 357 U.S. 433 (1958) (five-to-four decision); Cicenia v. 

Lagay, 357 U.S. 504 (1958) (five-to-three). 273 360 U.S. 315 (1959). 274 377 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). 

where he was without counsel, was introduced as evidence against 

him at trial. Finally in Coleman v. Alabama, 270 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. 271

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 

to counsel that his subsequent trial was tainted. 272 It was held in 

Spano v. New York 273 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, 274 in which federal 

officers caused an informer to elicit from the already-indicted defendant, who was represented by a lawyer, incriminating admisVerDate Aug<04>2004 07:11 Sep 15, 2004 Jkt 077500 PO 00000 Frm 00046 Fmt 8222 Sfmt 8222 C:\CONAN\CON032.SGM PRFM99 PsN: CON032
AMENDMENT 6—RIGHTS OF ACCUSED 1539

275 378 U.S. 478 (1964). 276 384 U.S. 436 (1966). 277 430 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. 278 447 U.S. 264 (1980) Justices Blackmun, White, and Rehnquist dissented. Id. 

at 277, 289. But cf. Weatherford v. Bursey, 429 U.S. 545 (1977). 279 451 U.S. 477 (1981). 280 475 U.S. 625, 636 (1986). 

sions which were secretly overheard over a broadcasting unit. 

Then, in Escobedo v. Illinois, 275 the Court held that preindictment 

interrogation was a violation of the Sixth Amendment. But Miranda v. Arizona 276 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, 277 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 278 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 incriminating 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 279 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.’’ 280 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 

1540 AMENDMENT 6—RIGHTS OF ACCUSED 

281 475 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). 

282 Arizona v. Roberson, 486 U.S. 675 (1988). 

283McNeil 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. 

284 Rejecting an exception to the offense-specific limitation for crimes that are 

closely related factually to a charged offense, the Court instead borrowed the 

Blockburger test from double-jeopardy law: if the same transaction constitutes a violation of two separate statutory provisions, the test is ‘‘whether each provision requires proof of a fact which the other does not.’’ Texas v. Cobb, 532 U.S. 162, 173 

(2001) . This meant that the defendant, who had been charged with burglary, had 

a right to counsel on that charge, but not with respect to murders committed during 

the burglary. 

285See Michigan v. Jackson, 475 U.S. 625 (1986). 

286 467 U.S. 431 (1984). 

287 467 U.S. at 446. 

formally charged with an offense than before.’’ 281 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, 282

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.’’ 283 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. 284

The remedy for violation of the Sixth Amendment rule is exclusion from evidence of statements so obtained. 285 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, 286 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. 

‘‘Exclusion of physical evidence that would inevitably have been 

discovered adds nothing to either the integrity or fairness of a 

criminal trial.’’ 287 Also, an exception to the Sixth Amendment exVerDate Apr<15>2004 10:27 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00048 Fmt 8222 Sfmt 8222 C:\CONAN\CON032.SGM PRFM99 PsN: CON032
AMENDMENT 6—RIGHTS OF ACCUSED 1541

288Michigan v. Harvey, 494 U.S. 344 (1990) (postarraignment statement taken 

in violation of Sixth Amendment is admissible to impeach defendant’s inconsistent 

trial testimony). 289 388 U.S. 218 (1967). 290 388 U.S. 263 (1967). 291 United States v. Wade, 388 U.S. 218, 224–25 (1967) (citations omitted). 292 388 U.S. at 226 (citations omitted). 293 388 U.S. 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. 

clusionary rule has been recognized for the purpose of impeaching 

the defendant’s trial testimony. 288

Lineups and Other Identification Situations.—The concept of the ‘‘critical stage’’ was again expanded and its rationale 

formulated in United States v. Wade, 289 which, with Gilbert v. California, 290 held that lineups are a critical stage and that in-court 

identification of defendants based on out-of-court lineups or showups 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.’’’ 291

‘‘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.’’ 292 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 and 

remedied at trial. 293 However, because there was less certainty and 

1542 AMENDMENT 6—RIGHTS OF ACCUSED 

294Stovall v. Denno, 388 U.S. 293 (1967). 295Gilbert v. California, 388 U.S. 263, 265–67 (1967) (handwriting exemplars); 

Schmerber v. California, 384 U.S. 757, 765–66 (1966) (blood samples). 296 413 U.S. 300 (1973). Justices Brennan, Douglas, and Marshall dissented. Id. 

at 326. 297 413 U.S. 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 a 

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 a 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). 

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. 294 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. 295

In United States v. Ash, 296 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.’’ 297 Therefore, unless the pretrial 

stage involved the physical presence of the accused at a trial-like 

confrontation at which the accused requires the guiding hand 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, and therefore 

there was no trial-like confrontation, and since the possibilities of 

AMENDMENT 6—RIGHTS OF ACCUSED 1543

298 413 U.S. at 317-21. The due process standards are discussed under the Fourteenth Amendment, ‘‘Criminal Identification Process,’’ infra. 299 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). 300Stovall v. Denno, 388 U.S. 293 (1967); Foster v. California, 394 U.S. 440 

(1969); Coleman v. Alabama, 399 U.S. 1 (1970). 301 406 U.S. 682, 689 (1972). 302 406 U.S. 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 counsel for prison inmates placed under administrative segregation during a lengthy investigation of their participation in prison crimes). 303 ‘‘[T]he Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self-incrimination, upon the theory 

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. 298

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, 299 but

the cases in which the rulings were denied retroactive application 

involved preindictment lineups. 300 Nevertheless, in Kirby v. Illinois 301 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.’’ 302 The

Court’s distinguishing of the underlying basis for Miranda v. Arizona 303 left that case basically unaffected by Kirby, but it appears 

1544 AMENDMENT 6—RIGHTS OF ACCUSED 

that custodial interrogation is inherently coercive.’’ 406 U.S. at 688 (emphasis by 

Court). 304 ‘‘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.’’ 406 U.S. at 689. But see id. at 693 n.3 (Justice Brennan dissenting). 305Townsend v. Burke, 334 U.S. 736 (1948). 306Mempa v. Rhay, 389 U.S. 128 (1967) (applied retroactively in McConnell v. 

Rhay, 393 U.S. 2 (1968)). 307 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). See generally ‘‘Rights of Prisoners’’ under the Fourteenth Amendment. 308Specht v. Patterson, 386 U.S. 605 (1967). 309 In re Groban, 352 U.S. 330 (1957). Four Justices dissented. 310 Anonymous v. Baker, 360 U.S. 287 (1959). Four Justices dissented. 

that Escobedo v. Illinois, 304 and perhaps other cases, are greatly 

restricted thereby. 

Post-Conviction Proceedings.—Counsel is required at the 

sentencing stage, 305 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. 306 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. 307

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. 308 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. 309 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 

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. 310