SIXTH AMENDMENT

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

CONTENTS

Page

Criminal Prosecutions ............................................................................................................... 1607

Coverage .............................................................................................................................. 1607

Right to a Speedy and Public Trial .......................................................................................... 1608

Speedy Trial ........................................................................................................................ 1608

Source and Rationale .................................................................................................. 1608

Application and Scope ................................................................................................. 1609

When the Right is Denied .......................................................................................... 1611

Public Trial .......................................................................................................................... 1612

Right to Trial By Impartial Jury ............................................................................................. 1615

Jury Trial ............................................................................................................................ 1615

The Attributes and Function of the Jury .................................................................. 1617

When the Jury Trial Guarantee Applies ................................................................... 1620

Impartial Jury .................................................................................................................... 1628

Place of Trial: Jury of the Vicinage .......................................................................................... 1636

Notice of Accusation .................................................................................................................. 1637

Confrontation ............................................................................................................................. 1638

Compulsory Process ................................................................................................................... 1649

Assistance of Counsel ................................................................................................................ 1650

Absolute Right to Counsel at Trial ................................................................................... 1650

Historical Practice ....................................................................................................... 1650

Development of Right ................................................................................................. 1651

Limits on the Right to Retained Counsel ................................................................. 1656

Effective Assistance of Counsel .................................................................................. 1658

Self-Representation ..................................................................................................... 1666

Right to Assistance of Counsel in Nontrial Situations ................................................... 1667

Judicial Proceedings Before Trial .............................................................................. 1667

Custodial Interrogation ............................................................................................... 1669

Lineups and Other Identification Situations ............................................................ 1673

Post-Conviction Proceedings ....................................................................................... 1676

Noncriminal and Investigatory Proceedings ............................................................. 1676

1605

RIGHTS 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

Like with other provisions of the Bill of Rights, the application

of the Sixth Amendment evolved. In considering a bill of rights in

August 1789, the House of Representatives adopted a proposal to

guarantee a right to a jury trial in state prosecutions,1 but the Senate rejected the proposal, and the 1869 case of Twitchell v. Commonwealth ended any doubt that the states were beyond the direct reach

of the Sixth Amendment.2 The reach of the Amendment thus being

then confined to federal courts, questions arose as to its application in federally established courts not located within a state. The

Court found that criminal prosecutions in the District of Columbia 3 and in incorporated territories 4 must conform to the Amendment, but those in the unincorporated territories need not.5 Under

the Consular cases, of which the leading case is In re Ross, the Court

at one time held that the Sixth Amendment reached only citizens

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

1 1 ANNALS OF CONGRESS 755 (August 17, 1789).

2 74 U.S. (7 Wall.) 321, 325–27 (1869).

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

4 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879). See also Lovato v. New

Mexico, 242 U.S. 199 (1916).

5 Balzac v. Porto 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).

1607
for trial, and not to citizens residing or temporarily sojourning abroad.6

Reid v. Covert made this holding inapplicable to proceedings abroad

by United States authorities against American civilians.7 Further,

though not applicable to the states by the Amendment’s terms, the

Court has come to protect all the rights guaranteed in the Sixth

Amendment against state abridgment through the Due Process Clause

of the Fourteenth Amendment.8

The Sixth Amendment applies in criminal prosecutions. Only

those acts that Congress has forbidden, with penalties for disobedience of its command, are crimes.9 Actions to recover penalties imposed by act of Congress generally but not invariably have been

held not to be criminal prosecutions,10 nor are deportation proceedings,11, nor appeals or post-conviction applications for collateral relief,12 but contempt proceedings, which at one time were not considered criminal prosecutions, are now considered to be criminal

prosecutions for purposes of the Amendment.13

RIGHT TO A SPEEDY AND PUBLIC TRIAL

Speedy Trial

Source and Rationale.—The Magna Carta declared “[w]ee shall

not . . . deny or delay Justice and right, neither the end, which is

6 In re Ross, 140 U.S. 453 (1891) (holding that a United States citizen has no

right to a jury in a trial before a United States consul abroad for a crime committed

within a foreign nation).

7 354 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 against United States citizens abroad, 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, concurring, 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 courtmartial involved in the case was not a “criminal prosecution” within the meaning of

the Amendment).

8 Citation is made in the sections dealing with each provision.

9 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).

10 Oceanic 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).

11 United States ex rel. Turner v. Williams, 194 U.S. 279, 289 (1904); Zakonaite

v. Wolf, 226 U.S. 272 (1912).

12 Cf. Evitts v. Lucey, 469 U.S. 387 (1985) (right to counsel on criminal appeal a

matter determined under due process analysis).

13 Compare In re Debs, 158 U.S. 564 (1895), with Bloom v. Illinois, 391 U.S. 194

(1968).

1608 AMENDMENT 6—RIGHTS OF ACCUSED
Justice, nor the meane, whereby we may attaine to the end, and

that is the law.” 14 Much the same language was incorporated into

the Virginia Declaration of Rights of 1776 15 and from there into

the Sixth Amendment. The right to a speedy trial is a right of an

accused, but it serves the interests of defendants and society alike.

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.” 16 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 after arrest may

commit other crimes, lengthy intervals between arrest and trial may

promote “bail jumping,” and growing backlogs of cases may motivate plea bargaining that does not always match society’s expectations for justice. And delay may retard the deterrent and rehabilitative effects of the criminal law.17

Application and Scope.—“The history of the right to a speedy

trial and its reception in this country clearly establish that it is

one of the most basic rights preserved by our Constitution.” So finding, the Supreme Court held in the 1967 case of Klopfer v. North

Carolina that the right to a speedy trial is one of those “fundamental” liberties that the Due Process Clause of the Fourteenth Amendment makes applicable to the states.18 But beyond its widespread

applicability in state and federal prosecutions are questions of when

the right attaches, when it is violated, and how violations may be

remedied.

The timeline between the commission of a crime and its trial

may include an extended period for gathering evidence and decid14 Ch. 40 of the 1215 Magna Carta, a portion of ch. 29 of the 1225 reissue, translated and quoted by E. COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 56 (Garland 1979 facsimile of 1642 ed.). See also Klopfer v. North Carolina,

386 U.S. 213, 223–24 (1967). The Klopfer Court cites an even earlier reference to a

right to a speedy trial, dating from 1166. Id. at 223.

15 7 F. Thorpe, The Federal and State Constitutions H. DOC. NO. 357, 59TH CONGRESS, 2D SESS. 8, 3813 (1909).

16 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).

17 Barker v. Wingo, 407 U.S. 514, 519 (1972); Dickey v. Florida, 398 U.S. 30, 42

(1970) (Justice Brennan concurring). The Speedy Trial Act of 1974, Pub. L. 93–619,

88 Stat. 2076, 18 U.S.C. §§ 3161–74, 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).

18 Klopfer v. North Carolina, 386 U.S. 213, 226 (1967).

AMENDMENT 6—RIGHTS OF ACCUSED 1609
ing to commence a prosecution. Prejudice that may result from delays between discovering a crime and completing its investigation,

or between discovering sufficient evidence to proceed against a suspect and instituting proceedings, is guarded against primarily by

statutes of limitation, which represent a legislative judgment with

regard to permissible periods of delay.19 The protection afforded by

the speedy trial guarantee of the Sixth Amendment “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.” 20 Nevertheless, invocation of the right need not always await

indictment, information, or other formal charge but can begin with

the actual restraints imposed by arrest if those restraints precede

the formal preferring of charges.21 In two cases involving both detention and formal charges, the Court held that the speedy trial

guarantee had been violated by states that brought criminal charges

against persons who were already incarcerated in prisons of other

jurisdictions when the states that brought the criminal charges had

ignored the defendants’ requests to be given prompt trials and had

made no effort through requests to the prison authorities of the other

jurisdictions to obtain custody of the prisoners for purposes of trial.22

But an individual’s speedy trial rights can be at issue even when

he is not subject to detention and it is uncertain whether the government will ever pursue further prosecution. Thus, a state prac19 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).

20 United States v. Marion, 404 U.S. 307, 313 (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 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, 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. Only 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.

21 United States v. Marion, 404 U.S. 307, 320, 321 (1971).

22 Smith v. Hooey, 393 U.S. 374 (1969); Dickey v. Florida, 398 U.S. 30 (1970).

1610 AMENDMENT 6—RIGHTS OF ACCUSED
tice permitting a prosecutor to take nolle prosequi with leave, which

discharged an indicted defendant from custody but left him subject

at any time thereafter to prosecution at the discretion of the prosecutor, was condemned as violating the guarantee of a speedy trial.23

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.” 24 No length of time is per se too

long to pass scrutiny under this guarantee,25 but neither does the

defendant have to show actual prejudice by delay.26 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.” 27

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.28 It is

the duty of the prosecution to bring a defendant to trial, and the

23 Klopfer v. North Carolina, 386 U.S. 213 (1967) (the statute of limitations had

been tolled by the indictment). 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.

24 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). 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. Strunk v.

United States, 412 U.S. 434 (1973). A trial court denial of a motion to dismiss on

speedy trial grounds is not an appealable order under the “collateral order” exception to the finality rule. One must raise the issue on appeal from a conviction. United

States v. MacDonald, 435 U.S. 850 (1977).

25 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).

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

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

27 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.

28 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 interlocuAMENDMENT 6—RIGHTS OF ACCUSED 1611
failure of the defendant to demand the right is not to be construed

as a waiver of the right.29 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, while the defendant’s responsibility for the delay would preclude a claim altogether. A delay caused by assigned counsel should generally be attributed to the defendant, not to the state. However, “[d]elay resulting

from a systemic ‘breakdown in the public defender system’ could be

charged to the State.” 30 Finally, a court should look to the possible

prejudices and disadvantages suffered by a defendant during a delay.31

Public Trial

“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.” 32

The Supreme Court has cited many civic and process-related

purposes served by open trials: they help to ensure the criminal

defendant a fair and accurate adjudication of guilt or innocence; they

provide a public demonstration of fairness; they discourage perjury,

the misconduct of participants, and decisions based on secret bias

or partiality. Open trials educate the public about the criminal justice system, give legitimacy to it, and have the prophylactic effect

tory 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.

29 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).

30 Vermont v. Brillon, 129 S. Ct. 1283, 1292 (2009) (citation omitted).

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

32 In re Oliver, 333 U.S. 257, 268–70 (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).

1612 AMENDMENT 6—RIGHTS OF ACCUSED
of enabling the public to see justice done.33 Though the Sixth Amendment expressly grants the accused a right to a public trial,34 the

Court has found the right to be so fundamental to the fairness of

the adversary system that it is independently protected against state

deprivation by the Due Process Clause of the Fourteenth Amendment.35 The First Amendment right of public access to court proceedings also weighs in favor of openness.36

The Court has borrowed from First Amendment cases in protecting the right to a public trial under the Sixth Amendment. 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.” 37 In Waller v.

Georgia,

38 the Court held that an accused’s Sixth Amendment rights

had been violated by closure of all 7 days of a suppression hearing

in order to protect persons whose phone conversations had been taped,

when less than 21⁄2 hours of the hearing had been devoted to playing the tapes. The need for openness at suppression hearings “may

be particularly strong,” the Court indicated, because the conduct of

police and prosecutor is often at issue.39 Relying on Waller and First

Amendment precedent, the Court similarly held that an accused’s

Sixth Amendment right to a public trial had been violated when a

trial court closed jury selection proceedings without having first explored alternatives to closure on its own initiative.40

The Sixth Amendment right to a public trial and the First Amendment right to public access both presume that opening criminal proceedings helps ensure their fairness, but there are circumstances

33 Richmond Newspapers v. Virginia, 448 U.S. 555, 569–73 (1980) (plurality opinion of Chief Justice Burger); id. at 593–97 (Justice Brennan concurring).

34 Estes v. Texas, 381 U.S. 532, 538–39 (1965).

35 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).

36 The Court found a qualified First Amendment right for the public to attend

criminal trials in Richmond Newspapers v. Virginia. 448 U.S. 555 (1980) (opinion of

Chief Justice Burger); id. at 582 (Justice Stevens concurring); id. at 584 (Justice

Brennan concurring); id. at 598 (Justice Stewart concurring); id. at 601 (Justice

Blackmun concurring). See First Amendment, “Government and the Conduct of Trials,” supra.

37 Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (PressEnterprise I).

38 467 U.S. 39 (1984).

39 Waller v. Georgia, 467 U.S. 39, 47 (1984) (indicating that the Press-Enterprise

I standard governs such 6th Amendment cases).

40 Presley v. Georgia, 558 U.S. ___, No. 09–5270, slip op. (2010) (per curiam).

AMENDMENT 6—RIGHTS OF ACCUSED 1613
in which an accused might consider openness and its attendant publicity to be unfairly prejudicial. In this regard, the Sixth Amendment right of an accused to a public trial does not carry with it a

right to a private trial. Rather, it is the accused’s broader right to

a fair trial and the government’s interest in orderly judicial administration that are weighed in the balance against the public’s First

Amendment right to access.

The Court has no preset constitutional priorities in resolving

these conflicts. Still, certain factors are evident in the Court’s analysis, including whether restrictions on access are complete or partial, permanent or time-limited, or imposed with or without full consideration of alternatives. When the complete closure of the record

of a normally open proceeding is sought, the accused faces a formidable burden. Thus, in Press-Enterprise Co. v. Superior Court the

Court reversed state closure of a preliminary hearing in a notorious murder trial, a closure signed off on by the defendant, prosecution, and trial judge: “If the interest asserted is the right of the

accused to a fair trial, the preliminary hearing shall be closed only

if specific findings are made 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 In the earlier decision of Gannett Co. v.

DePasquale, by contrast, the Court upheld a temporary denial of

public access to the transcript of a hearing to suppress evidence,

emphasizing that the Sixth Amendment guarantee to a public trial

is primarily a personal right of the defendant, not an embodiment

of a common law right to open proceedings in favor of the public,42

and further finding that any First Amendment right to access that

might have existed was outweighed by the circumstances of the case.43

Other cases disfavoring open access have involved press coverage

that was found to be so inflammatory or disruptive as to undermine the basic integrity, orderliness, and reliability of the trial process.44 Nevertheless, a First Amendment right to public access has

found firmer footing over time, and the Court is reluctant to recog41 Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986) (PressEnterprise II).

42 See Estes v. Texas, 381 U.S. 532, 538–39 (1965).

43 443 U.S. 368 (1979). Cf. Nixon v. Warner Communications, 435 U.S. 589, 610

(1978).

44 Estes v. Texas, 381 U.S. 532 (1965); see also Sheppard v. Maxwell, 384 U.S.

333 (1966). Compare Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) (prior restraint on pretrial publicity held unconstitutional). Estes found that live television

coverage of criminal trials was an inherent violation of due process, requiring no

specific showing of actual prejudice. This holding was overturned in Chandler v. Florida.

449 U.S. 560 (1981)

1614 AMENDMENT 6—RIGHTS OF ACCUSED
nize any per se rules to wall off criminal proceedings, preferring instead that any restrictions be premised on particularized findings

by the trial judge and an exploration of less restrictive options.45

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.46 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.47 Thus, in the eighteenth century, Blackstone could commemorate the institution as part of a “strong and two-fold 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.” 48 The right was

guaranteed in the constitutions of the original 13 states, was guaranteed in the body of the Constitution 49 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.50 “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

45 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Chandler v. Florida,

449 U.S. 560 (1981); Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).

46 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).

47 W. FORSYTH, HISTORY OF TRIAL BY JURY (1852).

48 W. 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.

49 In Art. III, § 2.

50 Duncan v. Louisiana, 391 U.S. 145, 153 (1968).

AMENDMENT 6—RIGHTS OF ACCUSED 1615
and interposed barriers on every side against the approaches of arbitrary power.’ ” 51

“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 or 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.” 52

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.53 But, as it

cannot be said that every criminal trial or any particular trial that

is held without a jury is unfair,54 a defendant may waive the right

and go to trial before a judge alone.55

51 Thompson v. Utah, 170 U.S. 343, 349–50 (1898), quoting 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1773 (1833).

52 Duncan 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). Although 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).

53 Duncan v. Louisiana, 391 U.S. 145, 157–58 (1968).

54 391 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).

55 Patton 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 “need1616 AMENDMENT 6—RIGHTS OF ACCUSED
The Attributes and Function of the Jury.—It was previously the Court’s position 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.” 56 It had

therefore been held that this included trial by a jury of 12 persons 57 who must reach a unanimous verdict 58 and that the jury

trial must be held during the first court proceeding and not de novo

at the first appellate stage.59 However, as it extended the guarantee to the states, the Court indicated that at least some of these

standards were open to re-examination,60 and in subsequent cases

it has done so. In Williams v. Florida,

61 the Court held that the

fixing of jury size at 12 was “a historical accident” that, although

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 62 or by any ascertainment

of the intent of the framers.63 Being bound neither by history nor

lessly” 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).

56 Patton v. United States, 281 U.S. 276, 288 (1930).

57 Thompson 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).

58 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).

59 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).

60 Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968); DeStefano v. Woods, 392

U.S. 631, 632–33 (1968).

61 399 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.

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

92.

63 399 U.S. at 92–99. Although 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

AMENDMENT 6—RIGHTS OF ACCUSED 1617
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.64

When the unanimity rule was reconsidered, the division of the

Justices was such that different results were reached for state and

federal courts.65 Applying the same type of analysis as that used in

Williams, four Justices acknowledged that unanimity was a commonlaw rule but observed for the reasons reviewed in Williams that it

seemed more likely than not that the framers of the Sixth Amendment had not intended to preserve the requirement within the term

“jury.” Therefore, the Justices undertook a functional 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

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).

64 399 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. Although 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.

65 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.

1618 AMENDMENT 6—RIGHTS OF ACCUSED
cross-section representation on the jury.66 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.67 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 that 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.68

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,69

has been held to be a standard mandated by the Sixth Amendment.70 The Court further held that the Fifth Amendment’s 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.71 Thus, 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.72 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.73 Subsequently,

the Court held that, just as failing to prove materiality to the jury

beyond a reasonable doubt can be harmless error, so can failing to

prove a sentencing factor to the jury beyond a reasonable doubt.

66 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.

67 406 U.S. at 414, and Johnson v. Louisiana, 406 U.S. 356, 380, 395, 397, 399

(1972) (Justices Douglas, Brennan, Stewart, and Marshall).

68 406 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) (holding Burch retroactive).

69 See In re Winship, 397 U.S. 358, 364 (1970).

70 Sullivan v. Louisiana, 508 U.S. 275 (1993).

71 United States v. Gaudin, 515 U.S. 506 (1995).

72 515 U.S. at 523.

73 Neder v. United States, 527 U.S. 1 (1999).

AMENDMENT 6—RIGHTS OF ACCUSED 1619
“Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.” 74

When the Jury Trial Guarantee Applies.—The Sixth Amendment is phrased in terms of “all criminal prosecutions,” but the Court

has always excluded petty offenses from the guarantee to a jury

trial in federal courts, defining the line between petty and serious

offenses either by the maximum punishment available 75 or by the

nature of the offense.76 This line has been adhered to in the application of the Sixth Amendment to the states,77 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.” 78 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.79

The Court has also made some changes in the meaning of the

term “criminal proceeding.” Previously, the term had been applied

only to situations in which a person has been accused of an offense

by information or presentment.80 Thus, a civil action to collect statutory penalties and punitive damages, because not technically criminal, has been held not to implicate the right to jury trial.81 Subse74 Washington v. Recuenco, 548 U.S. 212, 220 (2006). Apprendi is discussed in

the next section.

75 District 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).

76 District of Columbia v. Colts, 282 U.S. 63 (1930).

77 Duncan v. Louisiana, 391 U.S. 145, 159–62 (1968); Dyke v. Taylor Implement

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

78 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).

79 Lewis v. United States, 518 U.S. 322 (1996).

80 United States v. Zucker, 161 U.S. 475, 481 (1896).

81 161 U.S. at 481. See also Oceanic Steam Navigation Co. v. Stranahan, 214

U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909).

1620 AMENDMENT 6—RIGHTS OF ACCUSED
quently, however, the Court focused its analysis on the character of

the sanction to be imposed, holding that punitive sanctions may not

be imposed without adhering to the guarantees of the Fifth and Sixth

Amendments.82 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.83

In a long line of cases, the Court had held that no constitutional right to jury trial existed in trials of criminal contempt.84 In

Bloom v. Illinois,

85 however, 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.” The Court

has consistently held, however, that a jury is not required for purposes of determining whether a defendant is insane or mentally retarded and consequently not eligible for the death penalty.86

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

submitted to the jury was traditionally determined by whether the

fact to be established is an element of a crime or instead is a sentencing factor.87 Under this approach, the right to a jury had ex82 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The statute at issue in

Mendoza-Martinez automatically divested an American of citizenship for departing

or remaining outside the United States to evade military service. A later line of cases,

beginning in 1967, held that the Fourteenth Amendment broadly barred Congress

from involuntarily expatriating any citizen who was born in the United States.

83 McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

84 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.

85 391 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. See also 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).

86 Ford v. Wainwright, 477 U.S. 399, 416–417 (1986); Atkins v. Virginia, 536 U.S.

304, 317 (2002); Schriro v. Smith, 546 U.S. 6, 7 (2005). See Eighth Amendment, “Limitations on Capital Punishment: Diminished Capacity,” infra.

87 In Washington v. Recuenco, however, the Court held that “[f]ailure to submit

a sentencing factor to the jury, like failure to submit an element [of a crime] to the

jury, is not structural error,” entitling the defendant to automatic reversal, but can

be harmless error. 548 U.S. 212, 222 (2006).

AMENDMENT 6—RIGHTS OF ACCUSED 1621
tended to the finding of all facts establishing the elements of a crime,

but sentencing factors could be evaluated by a judge.88 Evaluating

the issue primarily under the Fourteenth Amendment’s Due Process Clause, the Court initially deferred to Congress and the states

on this issue, allowing them broad leeway in determining which facts

are elements of a crime and which are sentencing factors.89

Breaking with this tradition, 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.90

“The relevant inquiry is one not of form, but of effect.” 91 Apprendi

had been convicted of a crime punishable by imprisonment for no

more than ten years, but had been sentenced to 12 years based on

a judge’s findings, by a preponderance of the evidence, that enhancement grounds existed under the state’s hate crimes law. “[A]ny fact

that increases the penalty for a crime beyond the prescribed statutory maximum,” the Court concluded, “must be submitted to a jury,

and proved beyond a reasonable doubt.” 92 The one exception Apprendi recognized was for sentencing enhancements based on recidivism.93 In Alleyne v. United States, the Court extended Apprendi to

88 In James v. United States, 550 U.S. 192 (2007), the Court found no Sixth

Amendment issue raised when it considered “the elements of the offense . . . without

inquiring into the specific conduct of this particular offender.” Id. at 202 (emphasis

in original). The question before the Court was whether, under federal law, attempted burglary, as defined by Florida law, “presents a serious potential risk of

physical injury to another” and therefore constitutes a “violent felony,” subjecting

the defendant to a longer sentence. Id. at 196. In answering this question, the Court

employed the “categorical approach” of looking only to the statutory definition and

not considering the “particular facts disclosed by the record of conviction.” Id. at

202. Thus, “the Court [was] engaging in statutory interpretation, not judicial factfinding,” and “[s]uch analysis raises no Sixth Amendment issue.” Id. at 214.

89 For instance, the Court 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). After resolving the issue under the Due Process Clause, the

Court dismissed the Sixth Amendment jury trial claim as “merit[ing] little discussion.” Id. at 93. For more on the due process issue, see the discussion in “Proof,

Burden of Proof, and Presumptions,” infra.

90 530 U.S. 466, 490 (2000).

91 530 U.S. at 494. “[M]erely because the state legislature placed its hate crime

sentence enhancer within the sentencing provisions of the criminal code does not

mean that the finding of a biased purpose to intimidate is not an essential element

of the offense.” Id. at 495 (internal quotation omitted).

92 530 U.S. at 490.

93 530 U.S. at 490. Enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, and a judge may find the existence of previous

valid convictions even if the result is a significant increase in the maximum sentence available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported

alien reentering the United States is subject to a maximum sentence of two years,

but upon proof of a felony record, is subject to a maximum of twenty years). AlmendarezTorres was cited with approval on this point in James v. United States, 550 U.S.

192, 214 n.8 (2007) (“prior convictions need not be treated as an element of the of1622 AMENDMENT 6—RIGHTS OF ACCUSED
require “that any fact that increases the mandatory minimum [sentence] . . . must be submitted to the jury.” 94

Apprendi’s importance soon became evident as the Court applied its reasoning in other situations. In Ring v. Arizona,

95 the Court,

overruling precedent,96 applied Apprendi to invalidate an Arizona

law that authorized imposition of the death penalty only if the judge

made a factual determination as to the existence of any of several

aggravating factors. Although Arizona required that the judge’s findings as to aggravating factors be made beyond a reasonable doubt,

and not merely by a preponderance of the evidence, the Court ruled

that the findings must be made by a jury.97

In Blakely v. Washington,

98 the Court applied Apprendi to cast

doubt on types of widely adopted reform measures that were intended to foster more consistent sentencing practices. Blakely, who

pled guilty to an offense for which the “standard range” under the

Washington State’s sentencing law was 49 to 53 months, was sentenced to 90 months based on the judge’s determination—not derived from facts admitted in the guilty plea—that the offense had

been committed with “deliberate cruelty,” a basis for an “upward

departure” under the statute. The 90-month sentence conformed to

statutory limits, but the Court made “clear . . . that the ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a judge

may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose

after finding additional facts, but the maximum he may impose without any additional findings.” 99

fense for Sixth Amendment purposes”). See also Parke v. Raley, 506 U.S. 20 (1992)

(if the prosecutor has the burden of establishing a prior conviction, a defendant can

be required to bear the burden of challenging its validity).

94 570 U.S. ___, No. 11–9335, slip op. at 1–2 (2013) (overruling Harris v. United

States, 536 U.S. 545 (2002)).

95 536 U.S. 584 (2002).

96 Walton v. Arizona, 497 U.S. 639 (1990). Ring also appears to overrule some

other decisions on the same issue, including Spaziano v. Florida, 468 U.S. 447, 459

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

97 “Because Arizona’s enumerated aggravating factors operate as ‘the functional

equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires

that they be found by a jury.” 536 U.S. at 609. The Court rejected Arizona’s request

that it recognize an exception for capital sentencing in order not to interfere with

elaborate sentencing procedures designed to comply with the Eighth Amendment.

Id. at 605–07.

98 542 U.S. 296 (2004).

99 542 U.S. at 303–304 (italics in original; citations omitted). In Southern Union

Co. v. United States, 567 U.S. ___, No. 11–94, slip op. (2012), the Court cited this

AMENDMENT 6—RIGHTS OF ACCUSED 1623
Then, in United States v. Booker,

100 the Court held that the same

principles limit sentences that courts may impose under the federal Sentencing Guidelines.101 As the Court restated the principle

in Booker, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable

doubt.” 102 Attempts to distinguish Blakely were rejected. The Court

concluded that the fact that the Guidelines were developed by the

Sentencing Commission rather than by Congress “lacks constitutional significance.” 103 Instead, the Guidelines were suspect in application because, on the one hand, they curtailed the role of jury

factfinding in determining the upper range of a sentence and, on

the other hand, they mandated sentences from which a court could

depart only in a limited number of cases and after separately finding the existence of factors not presented to the jury.104 The mandatory nature of the Guidelines was also important to the Court’s formulation of a remedy.105 Rather than engrafting a jury trial

requirement onto the Sentencing Reform Act, under which the Guidelines were adopted, the Court instead invalidated two of its provisions, one making application of the Guidelines mandatory, and, concomitantly, one requiring de novo review for appeals of departures

from the mandatory Guidelines, and held that the remainder of the

passage in Blakely as a springboard to its conclusion that the Apprendi line of cases

apply in imposing criminal fines. The maximum fine that could be imposed in Southern Union Co. was pegged to the number of days a violation continued, but the jury

was not asked to determine the duration of the violation. The Court saw no “principled basis” for treating criminal fines differently from imprisonment or capital punishment. In all these cases, the Sixth Amendment guards against “judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s

verdict or the defendant’s admissions allow.”

100 543 U.S. 220 (2005).

101 Under the Sentencing Reform Act of 1984, the United States Sentencing Commission adopted binding Sentencing Guidelines, and courts were required to impose

sentences within the narrow, defined ranges. A judge could depart from the applicable Guideline only upon finding in writing that an aggravating or mitigating factor was present that had not adequately been considered by the Commission. See

Mistretta v. United States, 488 U.S. 361 (1989).

102 543 U.S. at 244.

103 543 U.S. at 237. Relying on Mistretta v. United States, 488 U.S. 361 (1989),

the Court also rejected a separation-of-powers argument. Id. at 754–55.

104 543 U.S. at 233–35.

105 There were two distinct opinions of the Court in Booker. The first, authored

by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (the

same Justices who comprised the five-Justice Blakely majority), applied Blakely to

find a Sixth Amendment violation; the other, authored by Justice Breyer, and joined

by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg (the Blakely

dissenters joined by Justice Ginsburg), set forth the remedy.

1624 AMENDMENT 6—RIGHTS OF ACCUSED
Act could remain intact.106 As the Court explained, this remedy “makes

the Guidelines effectively advisory. It requires a sentencing court

to consider Guidelines ranges, but it permits the court to tailor the

sentence in light of other statutory concerns as well.” 107

In Cunningham v. California,

108 the Court addressed whether

California’s determinate state sentencing law, yet another style of

legislative effort intended to regularize criminal sentencing, survived the Booker-Blakely line of cases. That law, and its implementing rules, required that the trial judge in the case sentence the defendant to 12 years in prison unless the judge found one or more

additional “circumstances in aggravation,” in which case the sentence would be 16 years. Aggravating circumstances could include

specific factual findings made by a judge under a “preponderance

of the evidence” standard in apparent violation of Booker and Blakely.

The court was also free to consider “additional criteria reasonably

related to the decision being made.” 109 The state argued that this

latter provision conformed the California sentencing scheme to Booker,

which contemplated that judges retain discretion to select a specific sentence within a statutory range, subject to appellate review

to determine “reasonableness.” The Court rejected this argument,

finding that the scheme impermissibly allocated sole authority to

judges to find the facts that permitted imposition of a higher alternative sentence.110

The Court, however, has refused to extend Apprendi to a judge’s

decision to impose sentences for discrete crimes consecutively rather

than concurrently.111 The Court explained that, when a defendant

has been convicted of multiple offenses, each involving discrete sentencing prescriptions, the states apply various rules regarding whether

a judge may impose the sentences consecutively or concurrently.112

The Court held that “twin considerations—historical practice and

106 543 U.S. at 259. Consistent with the role it envisioned for a sentencing judge,

the Court substituted a “reasonableness” standard for the statutory de novo appellate review standard that it struck down. 543 U.S. at 262.

107 543 U.S. at 245–246 (statutory citations omitted). Although not addressed in

the Booker ruling, a provision of the Sentencing Guidelines that limits district courts

from departing from the Guidelines during resentencing (the previous sentence having been vacated) on grounds other than those considered during for the first sentencing, was subsequently struck down as conflicting with the now-advisory nature

of the Guidelines. Pepper v. United States, 562 U.S. ___, No. 09–6822, slip op. (2011).

108 549 U.S. 270 (2007).

109 549 U.S. at 278–79, quoting California Rule 4.408(a).

110 549 U.S. at 279–80. “The reasonableness requirement that Booker anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints.” 549 U.S. at 292–

93.

111 Oregon v. Ice, 555 U.S. 160 (2009).

112 Most states follow the common-law tradition of giving judges unfettered discretion over the matter, while some states presume that sentences will run consecuAMENDMENT 6—RIGHTS OF ACCUSED 1625
respect for state sovereignty—counsel against extending Apprendi‘s rule” to preclude judicial factfinding in this situation as

well.113

In Rita v. United States, the Court upheld the application, by

federal courts of appeals, of the presumption “that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reasonable sentence.” 114 Even if the presumption

“increases the likelihood that the judge, not the jury, will find ‘sentencing facts,’ ” the Court wrote, it “does not violate the Sixth Amendment. This Court’s Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not

determined by a jury and to increase the sentence in consequence.

Nor do they prohibit the sentencing judge from taking account of

the Sentencing Commission’s factual findings or recommended sentences. . . . The Sixth Amendment question, the Court has said, is

whether the law forbids a judge to increase a defendant’s sentence

unless the judge finds facts that the jury did not find (and the offender did not concede). . . . A nonbinding appellate presumption

that a Guidelines sentence is reasonable does not require the judge

to impose that sentence. Still less does it forbid the sentencing judge

from imposing a sentence higher than the Guidelines provide for

the jury-determined facts standing alone.” 115

In United States v. Gall,

116 the Court held that, “while the extent of the difference between a particular sentence and the recomtively but allow judges to order concurrent sentences upon finding cause to do so.

“It is undisputed,” the Court noted, “that States may proceed on [either of these]

two tracks without transgressing the Sixth Amendment.” Id. at 163.

113 Id. at 525. The Court also noted other decisions judges make that are likely

to evade the strictures of Apprendi, including determining the length of supervised

release, attendance at drug rehabilitation programs, terms of community service,

and imposition of fines and orders of restitution. Id. at 171–72.

114 551 U.S. 338, 341 (2007). The Court emphasized that it was upholding “an

appellate court presumption. Given our explanation in Booker that appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review. . . . [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”

Id. at 351, quoted in part in Nelson v. United States, 129 S. Ct. 891 (2009) (per

curiam), where the Court added, “The Guidelines are not only not mandatory on

sentencing courts; they are also not to be presumed reasonable.” Id. at 892 (emphasis in original).

115 551 U.S. at 352, 353 (emphasis in original). The Court added: “The fact that

we permit courts of appeals to adopt a presumption of reasonableness does not mean

that courts may adopt a presumption of unreasonableness. . . . [A]ppellate courts

may not presume that every variance from the advisory Guidelines is unreasonable. . . . Several courts of appeals have also rejected a presumption of unreasonableness. . . . However, a number of circuits adhere to the proposition that the strength

of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance.” Id. at 354–55.

116 128 S. Ct. 586 (2007) (upholding a sentence of probation where the Guidelines had recommended imprisonment).

1626 AMENDMENT 6—RIGHTS OF ACCUSED
mended Guidelines range is surely relevant, courts of appeals must

review all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-ofdiscretion standard.” 117 The Court rejected “an appellate rule that

requires ‘extraordinary’ circumstances to justify a sentence outside

the Guidelines range,” and also rejected “the use of a rigid mathematical formula that uses the percentage of a departure as the

standard for determining the strength of the justifications required

for a specific sentence.” These approaches, the Court said, “come

too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.” 118

Subsequently, in Spears v. United States,

119 the Court, emphasizing that the Guidelines “are advisory only,” clarified “that district courts are entitled to reject and vary categorically from the

. . . Guidelines based on a policy disagreement with those Guidelines.” 120 In Spears, a district court had given a defendant a sentence significantly below the Guidelines for distribution of crack cocaine, noting that the Guidelines required 100 times more powder

cocaine than crack cocaine to trigger a particular sentencing range.

The Supreme Court held that, if a sentencing court believes “that

the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates ‘an unwarranted disparity within the meaning of [18 U.S.C.] § 3553(a),’ ” then

it may vary downward from the Guidelines even when the particular defendant “presents no special mitigating circumstances” to justify a lower sentence.121

The Booker line of cases addresses the role of the Sentencing

Guidelines in imposing and reviewing individual sentences. Booker,

however, did not overturn the Sentencing Reform Act in its en117 128 S. Ct. at 591. “As explained in Rita and Gall, district courts must treat

the Guidelines as the ‘starting point and the initial benchmark.’ ” Kimbrough v. United

States, 128 S. Ct. 558 (2007) (upholding lower-than-Guidelines sentence for trafficker in crack cocaine, where sentence “is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses”). A district court judge may determine “that, in the particular case, a within-Guidelines sentence is ‘greater than

necessary’ to serve the objectives of sentencing.” Kimbrough, 128 S. Ct. at 564.

118 128 S. Ct. at 595. Justice Alito, dissenting, wrote, “we should not forget [that]

. . . Booker and its antecedents are based on the Sixth Amendment right to trial by

jury. . . . It is telling that the rules set out in the Court’s opinion in the present

case have nothing to do with juries or factfinding and, indeed, that not one of the

facts that bears on petitioner’s sentence is disputed. What is at issue, instead, is

the allocation of the authority to decide issues of substantive sentencing policy, an

issue on which the Sixth Amendment says absolutely nothing. The yawning gap between the Sixth Amendment and the Court’s opinion should be enough to show that

the Blakely-Booker line of cases has gone astray.” Id. at 605 (Alito, J., dissenting).

119 129 S. Ct. 840 (2009) (per curiam).

120 129 S. Ct. at 842, 843–44.

121 129 S. Ct. at 842.

AMENDMENT 6—RIGHTS OF ACCUSED 1627
tirety, nor did it abolish the Guidelines themselves. One set of provisions left intact directed the Sentencing Commission to review the

Guidelines periodically, authorized it to reduce the Guidelines range

for individual offenses and make the reduced ranges retroactive, but

also generally foreclosed a court from then reducing a sentence previously imposed to one less than the minimum contained in the

amended Guideline range. In Dillon v. United States,

122 the Court

distinguished this sentence modification process from a sentencing

or resentencing, and upheld mandatory limits on judicial reductions of sentences under it.

Impartial Jury

The requirement of an impartial jury is secured not only by the

Sixth Amendment, which is as applicable to the states as to the

Federal Government,123 but also by the Due Process and Equal Protection Clauses of the Fourteenth Amendment,124 and perhaps by

the Due Process Clause of the Fifth Amendment. In addition, the

Court’s has directed its supervisory power over the federal system

to the issue.125 Even before the Court extended the right to a jury

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

to provide juries, the juries had to be impartial.126

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 right to a jury

trial.” 127 This requirement applies only to jury panels or venires

122 Dillon v. United States, 560 U.S. ___, No. 09–6338, slip op. (2010).

123 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).

124 Thus, 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 AfricanAmerican, 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).

125 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.

126 Turner v. Louisiana, 379 U.S. 466 (1965).

127 Taylor 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

1628 AMENDMENT 6—RIGHTS OF ACCUSED
from which petit juries are chosen, and not to the composition of

the petit juries themselves.128 “In order to establish a prima facie

violation of the fair-cross-section requirement, the defendant must

show (1) that the group alleged to be excluded is a ‘distinctive’ group

in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that

this underrepresentation is due to systematic exclusion of the group

in the jury-selection process.” 129 Further, once a plaintiff demonstrates a prima facie violation, the defendant faces a formidable burden: the jury selection process may be sustained under the Sixth

Amendment only if those aspects of the process that result in the

disproportionate exclusion of a distinctive group, such as exemption criteria, “manifestly and primarily” advance a “significant state

interest.” 130 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.131

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.132 A violation of a defendant’s right to

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. 90–274, 82

Stat. 53, 28 U.S.C. §§ 1861 et seq.

128 Lockhart 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).

129 Duren v. Missouri, 439 U.S. 357, 364 (1979). To show that underrepresentation resulted from systematic exclusion requires rigorous evidence beyond merely

pointing to a single factor or a host of factors that might have caused fewer members of a distinct group to have been included. Berghuis v. Smith, 559 U.S. ___, No.

08–1402, slip op. (2010).

130 439 U.S. at 367–68.

131 Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357

(1979).

132 Frazier 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,

AMENDMENT 6—RIGHTS OF ACCUSED 1629
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.133 Exposure of the jury to possibly prejudicial material and disorderly courtroom activities may deny impartiality and

must be inquired into.134 Private communications, contact, or tampering with a jury, or the creation of circumstances raising the dangers thereof, is not to be condoned.135 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.136 It is undeniably a violation of

due process to subject a defendant to trial in an atmosphere of mob

or threatened mob domination.137

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 ad212 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).

133 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).

134 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

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

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

1025 (1984).

135 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).

136 Irvin v. Dowd, 366 U.S. 717 (1961) (felony); Rideau v. Louisiana, 373 U.S.

723 (1963) (felony); Groppi v. Wisconsin, 400 U.S. 505 (1971) (misdemeanor). Important factors to be considered, however, include the size and characteristics of the

community in which the crime occurred; whether the publicity was blatantly prejudicial; the time elapsed between the publicity and the trial; and whether the jurors’

verdict supported the theory of prejudice. Skilling v. U.S., No. 08–1394, slip op. at

16–18 (June 24, 2010).

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

Sheppard v. Maxwell, 384 U.S. 333 (1966).

1630 AMENDMENT 6—RIGHTS OF ACCUSED
missible. 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.138 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.139

In Witherspoon v. Illinois,

140 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. “A man who opposes

the death penalty, no less than one who favors it, can make the

discretionary judgment entrusted to him by the State and can thus

obey the oath he takes as a juror.” 141 A jury, the Court wrote, must

“express the conscience of the community on the ultimate question

of life or death,” and the automatic exclusion of all with generalized objections to the death penalty “stacked the deck” and made of

the jury a tribunal “organized to return a verdict of death.” 142 A

court may not refuse a defendant’s request to examine potential jurors to determine whether they would vote automatically to impose

the death penalty; general questions about fairness and willingness to follow the law are inadequate.143

In Wainwright v. Witt, the Court held that 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 accor138 Jackson v. Denno, 378 U.S. 368 (1964) (overruling Stein v. New York, 346

U.S. 156 (1953)).

139 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-ofcourt statement is admissible against defendant if co-defendant takes the stand and

denies having made the statement).

140 391 U.S. 510 (1968).

141 391 U.S. at 519.

142 391 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 deathscrupled 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).

Witherspoon 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).

143 Morgan v. Illinois, 504 U.S. 719 (1992).

AMENDMENT 6—RIGHTS OF ACCUSED 1631
dance with his instructions and his oath.’ ” 144 Thus, to be excluded,

a juror need not indicate that he would “automatic[ally]” vote against

the death penalty, nor need his “bias be proved with ‘unmistakable

clarity.’ ” 145 Persons properly excludable under Witherspoon may also

be excluded from the guilt/innocence phase of a bifurcated capital

trial.146 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 argument, concluding that “it is simply not possible to define jury impartiality

. . . by reference to some hypothetical mix of individual viewpoints.” 147 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.148 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.149

In Uttecht v. Brown,

150 the Court summed up four principles

that it derived from Witherspoon and Witt: “First a criminal defendant has the right to an impartial jury drawn from a venire that

has not been tilted in favor of capital punishment by selective

prosecutorial challenges for cause. Second, the State has a strong

interest in having jurors who are able to apply capital punishment

within the framework state law prescribes. Third, to balance these

interests, a juror who is substantially impaired in his or her ability

to impose the death penalty under the state-law framework can be

excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Fourth, in determining whether

the removal of a potential juror would vindicate the State’s interest without violating the defendant’s right, the trial court makes a

judgment based in part on the demeanor of the juror, a judgment

owed deference by reviewing courts.” 151

144 469 U.S. 412, 424 (1985), quoting Adams v. Texas, 448 U.S. 38, 45 (1980).

145 469 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).

146 Lockhart v. McCree, 476 U.S. 162 (1986).

147 476 U.S. at 183.

148 476 U.S. at 180.

149 Buchanan v. Kentucky, 483 U.S. 402 (1987).

150 551 U.S. 1 (2007).

151 551 U.S. at 9 (citations omitted). Deference was the focus of Uttecht v. Brown,

as the Court, by a 5-to-4 vote, reversed the Ninth Circuit and affirmed a death sentence, finding that the Ninth Circuit had neglected to accord the deference it owed

1632 AMENDMENT 6—RIGHTS OF ACCUSED
Exclusion of one juror qualified under Witherspoon constitutes

reversible error, and the exclusion may not be subjected to harmless error analysis.152 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.153 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.’ ” 154

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.155 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.156 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

to the trial court’s finding that a juror was not substantially impaired. The Court

concluded: “Courts reviewing claims of Witherspoon-Witt error . . . , especially federal courts considering habeas petitions, owe deference to the trial court, which is

in a superior position to determine the demeanor and qualifications of a potential

juror.” Id. at 22. The reason that federal courts of appeals owe special deference

when considering habeas petitions is that the Antiterrorism and Effective Death Penalty Act of 1996 “provide[s] additional, and binding, directions to accord deference.”

Id. at 10. The dissent, written by Justice Stevens and joined by Justices Souter,

Ginsburg, and Breyer, noted that the juror whose exclusion for cause was challenged had “repeatedly confirmed” that, despite his “general reservations” about the

death penalty, he would be able to vote for it. Id. at 37. Even under the standard of

review imposed by the Antiterrorism and Effective Death Penalty Act of 1996, “[w]hile

such testimony might justify a peremptory challenge, until today not one of the many

cases decided in the wake of Witherspoon v. Illinois has suggested that such a view

would support a challenge for cause. . . . In its opinion, the Court blindly accepts

the state court’s conclusory statement that [the juror’s] views would have ‘substantially impaired’ his ability to follow the court’s instructions without examining what

that term means in practice and under our precedents.” Id. at 37, 38 (citation to

Witherspoon omitted).

152 Gray v. Mississippi, 481 U.S. 648 (1987).

153 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).

154 487 U.S. at 86, 87.

155 Lewis v. United States, 146 U.S. 370 (1892); Pointer v. United States, 151

U.S. 396 (1894).

156 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879). See Witherspoon v.

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

AMENDMENT 6—RIGHTS OF ACCUSED 1633
go further and question jurors about the contents of news reports

to which they had been exposed did not violate the Sixth Amendment.157

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.158 A similar rule applies in some capital trials, where the risk of racial prejudice “is especially serious in light

of the complete finality of the death sentence.” A defendant accused

of an interracial capital offense is entitled to have prospective jurors informed of the victim’s race and questioned as to racial bias.159

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.160

Although government is not constitutionally obligated to allow

peremptory challenges,161 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.162 Although, in Swain v. Alabama,

163 the Court

held that a prosecutor’s purposeful exclusion of members of a spe157 Mu’Min v. Virginia, 500 U.S. 415 (1991).

158 Ham v. South Carolina, 409 U.S. 524 (1973).

159 Turner v. Murray, 476 U.S. 28 (1986). The quotation is from a section of Justice White’s opinion not adopted as the opinion of the Court. Id. at 35.

160 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.

161 “This Court has long recognized that peremptory challenges are not of federal constitutional dimension.” Rivera v. Illinois, 129 S. Ct. 1446, 1450 (2009) (internal quotation marks omitted) (state trial court’s erroneous denial of a defendant’s

peremptory challenge does not warrant reversal of conviction if all seated jurors were

qualified and unbiased).

162 Cf. Stilson v. United States, 250 U.S. 583, 586 (1919), holding that it is no

violation of the guarantee to limit the number of peremptory challenges to each defendant in a multi-party trial.

163 380 U.S. 202 (1965).

1634 AMENDMENT 6—RIGHTS OF ACCUSED
cific 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,

164 with the result that a defendant may establish an equal protection violation resulting from a prosecutor’s use

of peremptory challenges to systematically exclude blacks from the

jury.165 A violation can occur whether or not the defendant and the

excluded jurors are of the same race.166 Racially discriminatory use

of peremptory challenges does not, however, constitute a violation

of the Sixth Amendment, the Court ruled in Holland v. Illinois.

167

The Sixth Amendment “no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the

basis of innumerable other generalized characteristics.” 168 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.” 169

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.170 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.” 171

It followed, therefore, that the limitation on peremptory challenges

164 476 U.S. 79 (1986).

165 See Fourteenth Amendment discussion of “Equal Protection and Race,” infra.

166 Powers v. Ohio, 499 U.S. 400 (1991) (defendant has standing to raise equal

protection rights of excluded juror of different race).

167 493 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).

168 493 U.S. at 487.

169 493 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.

170 Georgia v. McCollum, 505 U.S. 42 (1992).

171 505 U.S. at 57.

AMENDMENT 6—RIGHTS OF ACCUSED 1635
does not violate a defendant’s right to an impartial jury. Although

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.172

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,173 but much criticism arose over the absence of any guarantee

that the jury be drawn from the “vicinage” or neighborhood of the

crime.174 Madison’s efforts to write into the Bill of Rights an express vicinage provision were rebuffed by the Senate, and the present language was adopted as a compromise.175 The provisions limit

the Federal Government only.176

An accused cannot be tried in one district under an indictment

showing that the offense was committed in another; 177 the place

where the offense is charged to have been committed determines

the place of trial.178 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.179 In a

prosecution for conspiracy, the accused may be tried in any state

and district where an overt act was performed.180 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 defen172 505 U.S. at 58.

173 “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.”

174 “Vicinage” means neighborhood, and “vicinage of the jury” means jury of the

neighborhood or, in medieval England, jury of the County. 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *350–351 (T. Cooley, 4th ed. 1899). See 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1775–85 (1833).

175 The controversy is conveniently summarized in Williams v. Florida, 399 U.S.

78, 92–96 (1970).

176 Nashville, C. & St. L. R.R. v. Alabama, 128 U.S. 96 (1888).

177 Salinger v. Loisel, 265 U.S. 224 (1924).

178 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).

179 United States v. Cabrales, 524 U.S. 1 (1998).

180 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).

1636 AMENDMENT 6—RIGHTS OF ACCUSED
dant was properly tried in St. Louis, although he was not physically present in Missouri when notice of ratification was dispatched.181 The offense of obtaining transportation of property in

interstate commerce at less than the carrier’s published rates,182 or

the sending of excluded matter through the mails,183 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.184 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.185 The assignment of a district judge from one

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

judicial district whose boundaries are undefined nor subject the accused to trial in a district not established when the offense with

which he is charged was committed.186 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.187 The place of

trial may be designated by statute after the offense has been committed.188

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.189 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

181 Burton v. United States, 202 U.S. 344 (1906).

182 Armour Packing Co. v. United States, 209 U.S. 56 (1908).

183 United States v. Johnson, 323 U.S. 273, 274 (1944).

184 Hagner v. United States, 285 U.S. 427, 429 (1932).

185 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).

186 Lamar v. United States, 241 U.S. 103 (1916).

187 Jones v. United States, 137 U.S. 202, 211 (1890); United States v. Dawson,

56 U.S. (15 How.) 467, 488 (1853).

188 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).

189 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).

AMENDMENT 6—RIGHTS OF ACCUSED 1637
sufficient if the indictment follows the statutory phraseology,190 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.191 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 that does not contain such

allegation is defective.192 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.193 The

Constitution does not require the government to furnish a copy of

the indictment to an accused.194 The right to notice of accusation is

so fundamental a part of procedural due process that the states are

required to observe it.195

CONFRONTATION

“The primary object of the [Confrontation Clause is] to prevent

depositions of ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination 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.” 196 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.” 197 Before 1965, when the Court held

the right to be protected against state abridgment,198 it had little

need to clarify the relationship between the right of confrontation

190 Potter v. United States, 155 U.S. 438, 444 (1894).

191 United States v. Carll, 105 U.S. 611 (1882).

192 United States v. Cook, 84 U.S. (17 Wall.) 168, 174 (1872).

193 Rosen v. United States, 161 U.S. 29, 40 (1896).

194 United States v. Van Duzee, 140 U.S. 169, 173 (1891).

195 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).

196 Mattox v. United States, 156 U.S. 237, 242–43 (1895).

197 Kirby 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).

198 Pointer 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).

1638 AMENDMENT 6—RIGHTS OF ACCUSED
and the hearsay rule,199 because it could control the admission of

hearsay through exercise of its supervisory powers over the inferior federal courts.200

On the basis of the Confrontation Clause, the Court 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,201 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.202

The Court had also recognized the admissibility of dying declarations 203 and of testimony given at a former trial by a witness since

deceased.204 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 the defendant

now on trial was stolen.205 A prosecutor, however, may 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.206

For years the Court has struggled with the relationship between hearsay rules and the Confrontation Clause. 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.207 Thus, in Pointer v. Texas,

208

199 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 writing. 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).

200 Thus, although 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).

201 Motes v. United States, 178 U.S. 458 (1900).

202 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879).

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

U.S. 275, 282 (1897).

204 Mattox v. United States, 156 U.S. 237, 240 (1895).

205 Kirby 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.

206 Portuondo v. Agard, 529 U.S. 61 (2000).

207 Pointer 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 limitaAMENDMENT 6—RIGHTS OF ACCUSED 1639
the complaining witness had testified at a preliminary hearing at

which he was not cross-examined and the defendant was not represented by counsel, and 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 the defendant’s right of confrontation. In Douglas v. Alabama,

209 the prosecution called as a witness the defendant’s alleged accomplice, and

when the accomplice refused to testify, pleading his privilege against

self-incrimination, the prosecutor read to him to “refresh” his memory

a confession in which he implicated the defendant. Because the defendant could not cross-examine the accomplice with regard to the

truth of the confession, the Court held that the Confrontation Clause

had been violated. In Bruton v. United States,

210 the use at a joint

tion of the 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).

208 380 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; and Mancusi v. Stubbs, 408

U.S. 204 (1972), in which the Court permitted the state to assume the unavailability of a witness then living in Sweden, and to use the transcript of the witness’

testimony at a former trial.

209 380 U.S. 415 (1965). See also Smith v. Illinois, 390 U.S. 129 (1968) (Confrontation Clause was violated by allowing an informer as to identify himself by alias

and to conceal his true name and address because the defense could not effectively

cross-examine); Davis v. Alaska, 415 U.S. 308 (1974) (state law prohibiting disclosure of the identity of juvenile offenders could not be applied to preclude crossexamination of a witness about his juvenile record when the object was to allege

possible bias on the part of the witness). Cf. Chambers v. Mississippi, 410 U.S. 284

(1973); United States v. Nobles, 422 U.S. 233, 240–41 (1975).

210 391 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

1640 AMENDMENT 6—RIGHTS OF ACCUSED
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.211

The Court continues to view as “presumptively unreliable accomplices’ confessions that incriminate defendants.” 212

Then, in 1970, the Court refused to equate the Confrontation

Clause with hearsay rules. “While . . . hearsay rules and the Confrontation Clause are generally designed to protect similar values,

it is quite a different thing to suggest that the overlap is complete

and that the Confrontation Clause is nothing more or less than a

codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a

violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead

to the automatic conclusion that confrontation rights have been denied.” 213 In holding admissible a statement made to police during

custodial interrogation, the Court explained that “[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

stories.” 214

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).

211 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 crossexamination.” 481 U.S. at 193–94.

212 Lee v. Illinois, 476 U.S. 530, 541 (1986); Lilly v. Virginia, 527 U.S. 116, 132

(1999).

213 California v. Green, 399 U.S. 149, 155–56 (1970) (citations omitted) (holding

statement admissible because the witness was present at trial and could have been

cross-examined then). See also Dutton v. Evans, 400 U.S. 74, 80–86 (1970) (plurality opinion by Justice Stewart). Compare id. at 94–95 (Justice Harlan concurring),

with id. at 105 n.7 (Justice Marshall dissenting).

214 California v. Green, 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

AMENDMENT 6—RIGHTS OF ACCUSED 1641
The Court favored a hearsay exception over a cross-examination

requirement in Dutton v. Evans,

215 upholding the use as substantive evidence at trial of a statement made by a witness whom the

prosecution could have produced but did not.216 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,”

these Justices found that the Confrontation Clause could be satisfied if “the trier of fact [has] a satisfactory basis for evaluating the

truth of the [hearsay] statement.” The reliability of a statement was

to be ascertained in each case 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.217

In Ohio v. Roberts,

218 a Court majority adopted a reliability test

for satisfying the confrontation requirement through use of a stateno 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 a previous, out-of-court identification statement is not barred by witness’ inability, due to memory loss, to explain the basis for his identification).

215 400 U.S. 74 (1970).

216 The statement was made by an alleged co-conspirator of the defendant and

was admissible under the co-conspirator exception to the hearsay rule.

217 400 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).

218 448 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.

1642 AMENDMENT 6—RIGHTS OF ACCUSED
ment by an unavailable witness.219 Over the course of 24 years, Roberts was applied, narrowed,220 and finally overruled in Crawford v.

Washington.

221 The Court in Crawford rejected reliance on “particularized guarantees of trustworthiness” as inconsistent with the requirements of the Confrontation Clause. The Clause “commands, not

that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” 222

Reliability is an “amorphous” concept that is “manipulable,” and the

Roberts test had been applied “to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.” 223

“Where testimonial statements are at issue, the only indicium of

reliability sufficient to satisfy constitutional demands is the one the

Constitution actually prescribes: confrontation.” 224

Crawford represented a decisive turning point by clearly stating the basic principles to be used in Confrontation Clause analysis. “Testimonial evidence” may be admitted against a criminal defendant only if the declarant is available for cross-examination at

trial, or, if the declarant is unavailable (and the government has

made reasonable efforts to procure his presence), the defendant has

had a prior opportunity to cross-examine as to the content of the

statement.225 What statements are “testimonial”? In Crawford, the

Court wrote: “Various formulations of this core class of testimonial

statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations,

prior testimony that the defendant was unable to cross-examine, or

similar pretrial statements that declarants would reasonably ex219 “[O]nce 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.’ ” 448 U.S. at 65 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107 (1934)). The Court indicated that reliability could be inferred

without more if the evidence falls within a firmly rooted hearsay exception.

220 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). Roberts was narrowed in United States v. Inadi, 475 U.S. 387 (1986), which held that the rule of

“necessity” is confined to use of testimony from a prior judicial proceeding, and is

inapplicable to co-conspirators’ out-of-court statements. See also White v. Illinois, 502

U.S. 346, 357 (1992) (holding admissible “evidence embraced within such firmly rooted

exceptions to the hearsay rule as those for spontaneous declarations and statements

made for medical treatment”); and 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).

221 541 U.S. 36 (2004).

222 541 U.S. at 60–61.

223 541 U.S. at 63.

224 541 U.S. at 68–69.

225 541 U.S. at 54, 59.

AMENDMENT 6—RIGHTS OF ACCUSED 1643
pect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions; statements that were made

under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a

later trial.” 226 The Court added that it would “leave for another day

any effort to spell out a comprehensive definition of ‘testimonial,’ ”

but, “[w]hatever else the term covers, it applies at a minimum to

prior testimony at a preliminary hearing, before a grand jury, or at

a former trial; and to police interrogations.” 227

The Court subsequently concluded that “little more than the application of our holding in Crawford v. Washington” was needed to

find that “affidavits reporting the results of forensic analysis which

showed that material seized by the police and connected to the defendant was cocaine” were subject to the right of confrontation. The

Court found that the analysts were required to testify in person

even though state law declared their affidavits “prima facie evidence of the composition, quality, and the net weight of the narcotic . . . analyzed.” 228 Further, where such testimony is required,

the prosecution may not use a “surrogate” witness who, although

familiar with the mechanics of forensic testing, had not signed the

certification or personally performed or observed the performance

of the test. Such a surrogate could not speak to concerns about the

integrity of testing procedures or to questions about the performance of the certifying analyst.229 A year after this apparently straightforward holding in Bullcoming v. New Mexico, however, the Court’s

guidance on trial consideration of forensic reports was clouded by

Williams v. Illinois.

230 In Williams, an expert witness (not a surrogate witness from the testing lab) testified that a DNA profile she

had prepared from the defendant’s blood matched a DNA profile reported by an outside lab from a swab of a rape victim. A fourJustice plurality held that the expert incorporated the lab’s report

in her testimony in a way not intended to prove that the outside

lab had in fact tested a swab from a particular rape victim and come

up with the defendant’s DNA profile, but rather in a way solely intended to establish a basis for the expert’s opinion that two DNA

profiles matched. Four dissenters vigorously asserted the contrary,

226 541 U.S. at 51–2 (internal quotation marks and citations omitted), quoted

with approval in Melendez-Diaz v. Massachusetts, 557 U.S. ___, No. 07–591, slip op.

at 3–4 (2009).

227 541 U.S. at 68.

228 Melendez-Diaz v. Massachusetts, 557 U.S. ___, No. 07–591, slip op. at 23, 1,

2 (2009).

229 Bullcoming v. New Mexico, 564 U.S. ___, No. 09–10876, slip op. at 12 (2011).

230 567 U.S. ___, No. 10–8505, slip op. (2012).

1644 AMENDMENT 6—RIGHTS OF ACCUSED
finding that the outside lab’s report served the purpose of incriminating the defendant directly because it identified the rape victim

as the source of the material the lab profiled. The expert’s testimony effectively was used to connect the defendant with a named

individual and not just his DNA profile with a DNA sample obtained from some unnamed source. Accordingly, the dissent asserted the Confrontation Clause required that the defendant have

an opportunity to examine the lab technicians responsible for the

report. The ninth Justice in the case, Justice Thomas, agreed the

report was directly incriminating because the expert expressly used

it to link her profile of the defendant’s DNA to the rape victim. Nevertheless, Justice Thomas concurred in judgment of the plurality,

reprising his opinion stated in earlier cases 231 that the Confrontation Clause covers only formalized statements of a solemnity that

the uncertified lab report in this case lacked.

Generally, the only exceptions to the right of confrontation that

the Court has acknowledged are the two that existed under common law at the time of the founding: “declarations made by a speaker

who was both on the brink of death and aware that he was dying,”

and “statements of a witness who was ‘detained’ or ‘kept away’ by

the ‘means or procurement’ of the defendant.” 232 The second of these

exceptions applies “only when the defendant engaged in conduct designed to prevent the witness from testifying.” 233 Thus, in a trial

for murder, the question arose whether statements made by the victim to a police officer three weeks before she was murdered, that

the defendant had threatened her, could be admitted. The state court

had admitted them on the basis that the defendant’s having murdered the victim had made the victim unavailable to testify, but the

Supreme Court reversed, holding that, unless the testimony had been

confronted or fell within the dying declaration exception, it could

not be admitted “on the basis of a prior judicial assessment that

the defendant is guilty as charged,” for to admit it on that basis it

would “not sit well with the right to trial by jury.” 234

In Davis v. Washington,

235 the Court began to explore the parameters of Crawford by considering when a police interrogation is

“testimonial” for purposes of the Confrontation Clause. Davis involved a 911 call in which a woman described being assaulted by a

former boyfriend. A tape of that call was admitted as evidence of a

felony violation of a domestic no-contact order, despite the fact that

231 See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. ___, No. 07–591, slip op.

(Justice Thomas concurring).

232 Giles v. California, 128 S. Ct. 2678, 2682, 2683 (2008).

233 128 S. Ct. at 2683.

234 128 S. Ct. at 2686.

235 547 U.S. 813 (2006).

AMENDMENT 6—RIGHTS OF ACCUSED 1645
the woman in question did not testify. Although again declining to

establish all the parameters of when a response to police interrogation is testimonial, the Court held that statements to the police are

nontestimonial when made under circumstances that “objectively indicat[e] that the primary purpose of the interrogation is to enable

police assistance to meet an ongoing emergency.” 236 Statements made

after such an emergency has ended, however, would be treated as

testimonial and could not be introduced into evidence.237

In Michigan v. Bryant,

238 however, the Court appeared to extend the scope and basis of the “ongoing emergency” exception. In

Bryant, a man dying from a gun shot wound was found by police

lying on the ground next to his car in a gas station parking lot,

several blocks away from where he had been shot. In response to

questions from several police officers, the victim identified the defendant as his assailant, and his response was later used in the

defendant’s trial despite the victim’s unavailability to testify. In determining whether such statements were related to an ongoing emergency (and thus were non-testimonial), the majority noted that an

objective analysis of this question was “highly context-dependent”,239

and depended on the nature of the crime, the weapon utilized, the

medical condition of the victim, and the formality of the setting.

Further, in determining the testimonial nature of such information, the Court considered not just the intent of the declarant, but

also the intentions of the police coming upon the crime scene who,

ignorant of preceding events, began seeking information to decide

whether there was a continuing danger to the victim or the public.240 Considering that there are other potential exceptions to the

Confrontation Clause where the “primary purpose” for creation of

evidence is not related to gathering evidence for trial,241 the breadth

of this opinion may signal a retreat from the limits of Crawford.

236 547 U.S. at 822.

237 547 U.S. at 828–29. Thus, where police responding to a domestic violence

report interrogated a woman in the living room while her husband was being questioned in the kitchen, there was no present threat to the woman, so such information as was solicited was testimonial. Id. at 830 (facts of Hammon v. Indiana, considered together with Davis.)

238 562 U.S. ___, No. 09–150, slip op (2011). Justice Sotomayor wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Breyer and Alito.

Justice Thomas file an opinion concurring in judgment, while Justices Scalia and

Ginsburg filed dissenting opinions. Justice Kagan did not participate in the case.

239 Slip op. at 16.

240 Slip op. at 20.

241 See slip op. at 15 n.9. The Court noted that many exceptions to hearsay rules

rest on the belief that certain statements are made for a purpose other than use in

a prosecution See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by a co-conspirator

during and in furtherance of the conspiracy); 803(4) (Statements for Purposes of Medical Diagnosis or Treatment); 803(6) (Records of Regularly Conducted Activity); 803(8)

(Public Records and Reports); 803(9) (Records of Vital Statistics); 803(11) (Records

1646 AMENDMENT 6—RIGHTS OF ACCUSED
The Court continued its shift away from a broader reading of

Crawford in Ohio v. Clark,

242 a case that held that the Confrontation Clause did not bar the introduction of statements that a child

made to his preschool teacher regarding abuse committed by the

defendant.243 To reach its holding, the Court, relying on a multifactor approach to the primary purpose test similar to Bryant, noted

that the statements in question (1) occurred in the context of an

ongoing emergency involving suspected child abuse; (2) were made

by a very young child, who did not intend his statements to be a

substitute for trial testimony; (3) historically were admissible at common law; and (4) were not made to law enforcement officers.244 In

so holding, the Court appeared to lessen the importance of the primary purpose test, concluding that the primary purpose test is a

“necessary, but not always sufficient, condition” for the exclusion of

out-of-court statements under the Sixth Amendment, as evidence

that satisfies the primary purpose test may still be presented at

trial if the evidence would have been admissible at the time of the

founding.245

In two pre-Crawford cases, the Court took contrasting approaches to the Confrontation Clause regarding state efforts to protect a child from psychological trauma while testifying. In Coy v.

Iowa,

246 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.247 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.” 248 Squarely rejecting the Wigmore view “that the only essenof Religious Organizations); 803(12) (Marriage, Baptismal, and Similar Certificates);

803(13) (Family Records); and 804(b)(3) (Statement Against Interest).

242 See 576 U.S. ___, No. 13–1352, slip op. (2015).

243 Id. at 1.

244 Id. at 7–10.

245 Id. at 7.

246 487 U.S. 1012 (1988).

247 On 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.

248 487 U.S. at 1015, 1021.

AMENDMENT 6—RIGHTS OF ACCUSED 1647
tial interest preserved by the right was cross-examination,” 249 the

Court emphasized the importance of face-to-face confrontation in eliciting truthful testimony.

Coy’s interpretation of the Confrontation Clause, though not its

result, was rejected in Maryland v. Craig.

250 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.

251 Beginning with the proposition 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.” 252 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.” 253 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,” 254

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]

249 487 U.S. at 1018 n.2.

250 497 U.S. 836 (1990).

251 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.

252 497 U.S. at 849 (emphasis in original).

253 497 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 ‘interestbalancing’ analysis where the text of the Constitution simply does not permit it.” Id.

at 863, 870.

254 497 U.S. at 855.

1648 AMENDMENT 6—RIGHTS OF ACCUSED
preserves the essence of effective confrontation.” 255 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.256

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, because the defendant’s attorney participated in the hearing, and because the procedures allowed “full and effective” opportunity to cross-examine the witness at trial and request reconsideration of the competency ruling.257 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.258

COMPULSORY PROCESS

The provision requires, of course, that the defendant be afforded legal process to compel witnesses to appear,259 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.260 “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.261

255 497 U.S. at 857.

256 497 U.S. at 855.

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

258 Michigan v. Lucas, 500 U.S. 145 (1991).

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

on circuit).

260 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1786 (1833).

See Rosen v. United States, 245 U.S. 467 (1918).

261 Washington v. Texas, 388 U.S. 14, 19–23 (1967). Texas permitted coparticipants to testify for the prosecution.

AMENDMENT 6—RIGHTS OF ACCUSED 1649
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.262

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.” 263

ASSISTANCE OF COUNSEL

Absolute Right to Counsel at Trial

Historical Practice.—The records of neither the Congress that

proposed what became the Sixth Amendment nor the state ratifying conventions elucidate the language on assistance of counsel. 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. This rule was 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.” Colonial and early state practice varied, ranging

from the existent English practice to appointment of counsel in a

few states where needed counsel could not be retained.264 Contemporaneously with the proposal and ratification of the Sixth Amendment, Congress enacted two statutory provisions that seemed to indicate an understanding that the Sixth Amendment guarantee was

limited to retained counsel by a defendant wishing and able to afford assistance.265

By federal statute, an individual tried for a capital crime in a

federal court was entitled to appointed counsel, and, by judicial prac262 Taylor v. Illinois, 484 U.S. 400 (1988).

263 480 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).

264 W. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 8–26 (1955).

265 Section 35 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73, provided that parties in federal courts 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.”

1650 AMENDMENT 6—RIGHTS OF ACCUSED
tice, the federal courts came to appoint counsel frequently for indigents

charged with noncapital crimes, although it may be assumed that

the practice fell short at times of what is now constitutionally required.266 State constitutions and statutes gradually ensured a defendant the right to appear in state trials with retained counsel,

but the states were far less uniform on the existence and scope of

a right to appointed counsel. It was in the context of a right to appointed counsel that the Supreme Court began to develop its modern jurisprudence on a constitutional right to counsel generally, first

applying procedural due process analysis under the Fourteenth Amendment to state trials, also finding a Sixth Amendment based right to

appointed counsel in federal prosecutions, and eventually applying

this Sixth Amendment based right to the states.

Development of Right.—The development began in Powell v.

Alabama,

267 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 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.” 268

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 hos266 W. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 29–30 (1955).

267 287 U.S. 45 (1932).

268 287 U.S. at 68–69.

AMENDMENT 6—RIGHTS OF ACCUSED 1651
tility, 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 . . . .” 269

The next step in the expansion came in Johnson v. Zerbst,

270 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.” 271 Any waiver, the

Court ruled, must be by the intelligent choice of the defendant, will

not be presumed from a silent record, and must be determined by

the trial court before proceeding in the absence of counsel.272

An effort to obtain the same rule in the state courts in all criminal proceedings was rebuffed in Betts v. Brady.

273 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 Pro269 287 U.S. at 71.

270 304 U.S. 458 (1938).

271 304 U.S. at 462, 463.

272 304 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). A waiver must be knowing, voluntary, and intelligent, but need not be

based on a full and complete understanding of all of the consequences. Iowa v. Tovar,

541 U.S. 77 (2004) (holding that warnings by trial judge detailing risks of waiving

right to counsel are not constitutionally required before accepting guilty plea from

uncounseled defendant).

273 316 U.S. 455 (1942).

1652 AMENDMENT 6—RIGHTS OF ACCUSED
cess 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.” 274 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.275 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.276

Over time the Court abandoned the “special circumstances” language of Powell v. Alabama 277 when capital cases were involved and

finally in Hamilton v. Alabama,

278 held that in a capital case 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 non-capital

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.” 279 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 catego274 316 U.S. at 461–62, 465.

275 316 U.S. at 471, 473.

276 316 U.S. at 474 (joined by Justices Douglas and Murphy).

277 287 U.S. 45, 71 (1932).

278 368 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 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).

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

AMENDMENT 6—RIGHTS OF ACCUSED 1653
ries 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,280 (2) the technical

complexity of the charges or of possible defenses to the charges,281

and (3) events occurring at trial that raised problems of prejudice.282 The last characteristic especially had been used by the Court

to set aside convictions occurring in the absence of counsel,283 and

the last case rejecting a claim of denial of assistance of counsel had

been decided in 1950.284

Against this background, a unanimous Court in Gideon v. Wainwright 285 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.” 286 Justice Black, a dissenter in the 1942 decision, asserted for the Court that Betts was an “abrupt break” with

280 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.

281 Technicality 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.

282 The 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.

283 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.

284 Quicksal 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).

285 372 U.S. 335 (1963).

286 372 U.S. at 344.

1654 AMENDMENT 6—RIGHTS OF ACCUSED
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.287 The Court’s

opinion in Gideon left unanswered the question whether the right

to assistance of counsel could be claimed by defendants charged with

misdemeanors or serious misdemeanors as well as with felonies, and

it was not until later 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.288 The Court subsequently extended the right to cases where a suspended sentence or

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

conviction.289

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,290 but also may not be subsequently used either to

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

conviction.291

287 372 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.

288 Scott 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).

289 Alabama v. Shelton, 535 U.S. 654 (2002).

290 Pickelsimer 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).

291 Burgett v. Texas, 389 U.S. 109 (1967) (admission of record of prior conviction

without the assistance of counsel 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, was 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 1930s; 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)

AMENDMENT 6—RIGHTS OF ACCUSED 1655
Limits on the Right to Retained Counsel.—Gideon v. Wainwright 292 is regarded as having consolidated a right to counsel at

trial in the Sixth Amendment, be the trial federal or state or counsel retained or appointed.293 The Sixth Amendment cases, together

with pre-Gideon cases that applied due process analysis under the

Fourteenth Amendment to state proceedings, point to an unquestioned right to retain counsel for the course of a prosecution, but

also to circumstances in which the choice of a particular representative must give way to the right’s fundamental purpose of ensuring the integrity of the adversary trial system.

The pre-Gideon cases often spoke of the right to retain counsel

expansively. Thus, in Chandler v. Fretag, when a defendant appearing in court to plead guilty to house-breaking was advised for the

first time that, because of three prior convictions, he could be sentenced to life imprisonment as a habitual offender, the court’s denial of his request for a continuance to consult an attorney was a

violation of his Fourteenth Amendment due process rights.294 “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.” 295

Though there is a presumption under the Sixth Amendment that

a defendant may retain counsel of choice, the right to choose a particular attorney is not absolute. The prospect of compromised loyalty or competence may be sufficiently immediate and serious for a

court to deny a defendant’s selection. In Wheat v. United States, the

district court had denied a defendant’s proffered waiver of conflict

of interest and refused to allow representation by an attorney who

represented the defendant’s co-conspirators in an illegal drug enterprise.296 Upholding the district court’s discretion to disallow representation in instances of actual conflict of interests or serious potential for conflict, the Court mentioned other situations in which a

defendant’s choice may not be honored. A defendant, for example,

is not entitled to an advocate who is not a member of the bar, nor

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).

292 372 U.S. 335 (1963).

293 E.g., Wheat v. United States, 486 U.S. 153, 158 (1988).

294 348 U.S. 3 (1954).

295 348 U.S. at 9, 10. See alsoHouse v. Mayo, 324 U.S. 42 (1945); Hawk v. Olson, 326 U.S. 271 (1945); Reynolds v. Cochran, 365 U.S. 525 (1961).

296 486 U.S. 153 (1988).

1656 AMENDMENT 6—RIGHTS OF ACCUSED
may a defendant insist on representation by an attorney who denies counsel for financial reasons or otherwise, nor may a defendant demand the services of a lawyer who may be compromised by

past or ongoing relationships with the Government.297

Also, the right to retain counsel of choice does not bar operation of forfeiture provisions, even if the result is to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v.

United States,

298 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,” 299 even though a portion of the forfeited assets had been used

to retain defense counsel.300 Although 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.” 301 Because the statute vests title to the forfeitable assets

in the United States at the time of the criminal act,302 the defendant has no right to give them to a “third party” even if the purpose is to exercise a constitutionally protected right.303

Nevertheless, where the right to be assisted by counsel of one’s

choice is wrongly denied, a Sixth Amendment violation occurs regardless of whether the alternate counsel retained was effective, or

297 486 U.S. at 159.

298 491 U.S. 617 (1989).

299 21 U.S.C. § 853.

300 On the same day, the Court also rejected a due process challenge to the same

statute, holding that it was permissible to restrain the use of the seized property

pre-conviction even when the defendant sought to use the seized assets to pay for

his attorney as long as probable cause had been established that a qualifying crime

had been committed. United States v. Monsanto, 491 U.S. 600, 615 (1989) (“Indeed,

it would be odd to conclude that the Government may not restrain property, such as

the home and apartment in respondent’s possession, based on a finding of probable

cause, when we have held that . . . the Government may restrain persons where

there is a finding of probable cause to believe that the accused has committed a

serious offense.”). A subsequent case held that where a grand jury had returned an

indictment based on probable cause, that conclusion is binding on a court during

forfeiture proceedings and the defendants did not have a right to have such conclusion re-examined in a separate judicial hearing in order to unfreeze the assets to

pay for his counsel. Kaley v. United States, 571 U.S. ___, No. 12–464, slip op. (2014).

301 491 U.S. at 626.

302 The 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.

303 Dissenting 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).

AMENDMENT 6—RIGHTS OF ACCUSED 1657
whether the denial caused prejudice to the defendant.304 Further,

because such a denial is not a “trial error” (a constitutional error

that occurs during presentation of a case to the jury), but a “structural defect” (a constitutional error that affects the framework of

the trial),305 the Court had held that the decision is not subject to

a “harmless error” analysis.306

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

the right to the effective assistance of counsel.” 307 This right to effective assistance has two aspects. First, a court may not restrict

defense counsel in the exercise of the representational duties and

prerogatives attendant to our adversarial system of justice.308 Second, defense counsel can deprive a defendant of effective assistance

by failing to provide competent representation that is adequate to

ensure a fair trial,309 or, more broadly, a just outcome.310 The right

to effective assistance may be implicated as early as the appointment process. Cases requiring appointment of counsel for indigent

defendants hold that, as a matter of due process, the assignment of

defense counsel must be timely and made in a manner that affords

“effective aid in the preparation and trial of the case.” 311 The Sixth

Amendment also is implicated when a court appoints a defendant’s

attorney to represent his co-defendant as well, where the codefendants are known to have potentially conflicting interests.312

Restrictions on representation imposed during trial also have

been stricken as impermissible interference with defense counsel.

The Court invalidated application of a statute that empowered a

judge to deny final summations before judgment in a nonjury trial:

304 United States v. Gonzalez-Lopez, 548 U.S. 140, 144–45 (2006).

305 Arizona v. Fulminante, 499 U.S. 279, 307–310 (1991).

306 Gonzalez-Lopez, 548 U.S. at 148–49. The Court noted that an important component of the finding that denial of the right to choose one’s own counsel was a

“structural defect” was the difficulty of assessing the effect of such denial on a trial’s outcome. Id. at 149 n.4.

307 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left

to the mercies of incompetent counsel . . . .” 397 U.S. at 771. As a corollary, there is

no Sixth Amendment right to effective assistance where there is no Sixth Amendment right to counsel. 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).

308 E.g., 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).

309 Strickland v. Washington, 466 U.S. 668, 686 (1984).

310 Lafler v. Cooper, 566 U.S. ___, No. 10–209, slip op. (2012) (erroneous advice

during plea bargaining).

311 Powell v. Alabama, 287 U.S. 45, 71–72 (1932); Glasser v. United States, 315

U.S. 60, 70 (1942).

312 Glasser v. United States, 315 U.S. 60 (1942).

1658 AMENDMENT 6—RIGHTS OF ACCUSED
“The right to the assistance of counsel . . . ensures to the defense

in a criminal trial the opportunity to participate fully and fairly

. . . .” 313 And, in Geders v. United States,

314 the Court held that a

trial judge’s order preventing a defendant from consulting his counsel during a 17-hour overnight recess between his direct and crossexamination, to prevent tailoring of testimony or “coaching,” deprived the defendant of his right to assistance of counsel and was

invalid.315 Other direct and indirect restraints upon counsel have

been found to violate the Amendment.316 Government investigators

also are barred from impermissibly interfering with the relationship between defendant and counsel.317

Additionally, the Sixth Amendment’s right to effective assistance attaches directly to the fidelity and competence of defense counsel’s services, regardless of whether counsel is appointed or privately retained or whether the government in any way brought about

the defective representation. “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection.” 318 To an argument that a state

need only appoint for indigent defendants to satisfy Sixth Amendment requirements, the Court responded that “the State’s conduct

of a criminal trial itself implicates the State in the defendant’s conviction”, and no state may proceed against a defendant whose counsel, appointed or retained, cannot defend him fully and faithfully.319

313 Herring v. New York, 422 U.S. 853, 858 (1975). “[T]he right to assistance to

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.” 422 U.S. at 857.

314 425 U.S. 80 (1976).

315 Geders 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.

316 E.g., Ferguson v. Georgia, 365 U.S. 570 (1961) (where Georgia statute, uniquely,

barred sworn testimony by defendants, a defendant was entitled to the assistance of

counsel in presenting the unsworn statement allowed him under Georgia law); 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 the tactical advice of counsel on whether

to testify and when).

317 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 Court held that in absence of showing of adverse

consequences to representation, dismissal of indictment was inappropriate remedy).

318 Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).

319 Id.

AMENDMENT 6—RIGHTS OF ACCUSED 1659
Fidelity has been at issue in cases of joint representation of codefendants. In Glasser v. United States, the Court found a trial judge

erred in appointing one defendant’s attorney to also represent a codefendant in a conspiracy case; the judge knew of potential conflicts of interest in the case, and the original defendant had earlier

expressed a desire for sole representation.320 Counsel for codefendants in another case made a timely assertion to the trial judge

that continuing joint representation could pose a conflict of interest, and the Court found that the trial judge erred in not examining the assertion of potential conflict closely and permitting or appointing separate counsel, absent a finding that the risk of conflict

was remote.321 Joint representation does not deny effective assistance per se, however. 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. On the other hand, a defendant who objects

to joint representation must be given an opportunity to make the

case that potential conflicts exists. Absent an objection, a defendant must later show the existence of an “actual conflict of interest

which adversely affected his lawyer’s performance.” Once it is established that a conflict did actively affect the lawyer’s joint representation, however, a defendant need not additionally prove that the

lawyer’s representation was prejudicial to the outcome of the case.322

As to attorney competence, although the Court touched on the

question in 1970,323 it did not articulate a general Sixth Amendment standard for adequacy of representation until 1984 in Strickland

320 315 U.S. 60 (1942).

321 Holloway v. Arkansas, 435 U.S. 475 (1978). Counsel had been appointed by

the court.

322 Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980). Accord But see 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). Where an alleged conflict is not premised on joint representation, but rather

on a prior representation of a different client, for example, a defendant may be required to show actual prejudice in addition to a potential conflict. Mickens v. Taylor,

535 U.S. 162 (2002). 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, 356 U.S. 674 (1958).

323 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).

1660 AMENDMENT 6—RIGHTS OF ACCUSED
v. Washington.

324 There are two components to the Strickland test:

deficient representation and resulting prejudice to the defense so

serious as to bring the outcome of the proceeding into question.325

The gauge of deficient representation is an objective standard of reasonableness “under prevailing professional norms” that takes into

account “all the circumstances” and evaluates conduct “from counsel’s perspective at the time.” 326 Providing effective assistance is not

limited to a single path. No detailed rules or guidelines for adequate representation are appropriate: “Any such set of rules would

interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.” 327

Because even the most highly competent attorneys might choose

to defend a client differently, “[j]udicial scrutiny of counsel’s performance must be highly deferential.” 328 Counsel’s obligation is a general one: to act within the wide range of legitimate, lawful, and rea324 466 U.S. 668 (1984). Strickland involved capital sentencing, and the Court

had left open the since-resolved 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.

325 The Court often emphasizes that the Strckland test is necessarily difficult to

pass: Ineffective assistance of counsel claims can put rules of waiver and forfeiture

at issue and otherwise threaten the integrity of the adversarial system if wideranging, after-the-fact second-guessing of counsel’s action is freely encouraged. E.g.,

Harrington v. Richter, 562 U.S. ___, No. 09–587, slip op. at 15 (2011). Furthermore,

ineffective assistance of counsel claims frequently are asserted in federal court to

support petitions for writs of habeas corpus filed by state prisoners. Making a successful Strickland claim in a habeas context, as opposed to direct review, was made

doubly daunting by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Pub. L. No. 104–132, § 104, 110 Stat. 1218–1219, amending 28 U.S.C. § 2254. After

the passage of AEDPA, one must go beyond showing that a state court applied federal law incorrectly to also show that the court misapplied established Supreme Court

precedent in a manner that no fair-minded jurist could find to be reasonable. Harrington v. Richter, 562 U.S. ___, No. 09–587, slip op. at 10–14, 15–16 (counsel’s decision to forgo inquiry into blood evidence held to be at least arguably reasonable).

See also Cullen v. Pinholster, 563 U.S. ___, No. 09–1088, slip op. at 15–16 (2011);

Burt v. Titlow, 571 U.S. ___, No. 12–414, slip op. (2013).

326 466 U.S. at 688, 689.

327 466 U.S. at 689. Strickland observed that “American Bar Association standards and the like” may reflect prevailing norms of practice, “but they are only guides.”

Id. at 688. Subsequent cases also cite ABA standards as touchstones of prevailing

norms of practice. E.g., Wiggins v. Smith, 539 U.S. 510, 524 (2003), and Rompilla v.

Beard, 545 U.S. 374, 387 (2005). But in Bobby v. Van Hook, the Court held that the

Sixth Circuit had erred in assessing an attorney’s conduct in the 1980s under 2003

ABA guidelines, and also noted that its holding “should not be regarded as accepting the legitimacy of a less categorical use of the [2003] Guidelines to evaluate post2003 representation.” . 558 U.S. ___, No. 09–144, slip op. at 5 n.1 (2009) (per curiam).

328 Strickland, 466 U.S. at 689. The purpose is “not to improve the quality of

legal representation, . . . [but] simply to ensure that criminal defendants receive a

fair trial.” Id.

AMENDMENT 6—RIGHTS OF ACCUSED 1661
sonable conduct.329 “[S]trategic choices made after thorough

investigation of relevant law and facts . . . are virtually unchallengeable,” 330 as is “a reasonable decision that makes particular investigations unnecessary,” 331 or a reasonable decision selecting which issues to raise on appeal.332 In Strickland itself, the allegation of

ineffective assistance failed: The Court found that the defense attorney’s decision to forgo character and psychological evidence in a capital sentencing proceeding to avoid rebuttal evidence of the defendant’s criminal history was “the result of reasonable professional

judgment.” 333

On the other hand, defense counsel does have a general duty

to investigate a defendant’s background, and limiting investigation

and presentation of mitigating evidence must be supported by reasonable efforts and judgment.334 Also, even though deference to counsel’s choices may seem particularly apt in the unstructured, often

329 There is no obligation to assist the defendant in presenting perjured testimony, Nix v. Whiteside, 475 U.S. 157 (1986), and a defendant has no right to require his counsel to use peremptory challenges to exclude jurors on the basis of race.

Georgia v. McCollum, 505 U.S. 42 (1992). 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).

330 Strickland, 466 U.S. at 690. See also Yarborough v. Gentry, 540 U.S. 1 (2003)

(deference to attorney’s choice of tactics for closing argument); Burt v. Titlow, 571

U.S. ___, No. 12–414, slip op. (2013) (where a reasonable interpretation of the record indicated that a criminal defendant claimed actual innocence, his attorney was

justified in withdrawing a guilty plea).

331 Strickland, 466 U.S. at 691. See also Woodford v. Visciotti, 537 U.S. 19 (2002)

(state courts could reasonably have concluded that failure to present mitigating evidence was outweighed by “severe” aggravating factors); Schriro v. Landrigan, 550

U.S. 465 (2007) (federal district court was within its discretion to conclude that attorney’s failure to present mitigating evidence made no difference in sentencing).

332 There is no obligation to present on appeal all nonfrivolous issues requested

by the defendant. Jones v. Barnes, 463 U.S. 745 (1983) (appointed counsel may exercise his professional judgment in determining which issues are best raised on appeal).

333 466 U.S. at 699. Accord Wong v. Belmontes, 558 U.S. ___, No. 08–1263 (2009)

(per curiam); Darden v. Wainwright, 477 U.S. 168 (1986) (decision not to introduce

mitigating evidence).

334 See Wiggins v. Smith, 539 U.S. 510 (2003) (attorney’s failure to pursue defendant’s personal history and present important mitigating evidence at capital sentencing was objectively unreasonable); Rompilla v. Beard, 545 U.S. 374 (2005) (attorneys’ failure to consult trial transcripts from a prior conviction that the attorneys

knew the prosecution would rely on in arguing for the death penalty was inadequate); Porter v. McCollum, 558 U.S. ___, No. 08–10537, slip op. (2009) (per curiam)

(attorney’s failure to interview witnesses or search records in preparation for penalty phase of capital murder trial constituted ineffective assistance of counsel); See

also, Sears v. Upton, 561 U.S. ___, No. 09–8854, slip op. (2010); Cullen v. Pinholster,

563 U.S. ___, No. 09–1088, slip op. (2011) (Sotomayor, J. dissenting); Hinton v. Alabama, 571 U.S. ___, No. 13–6440, slip op. (2014) (per curiam) (attorney’s hiring of a

questionably competent expert witness because of a mistaken belief in the legal limit

on the amount of funds payable on behalf of an indigent defendant constitutes ineffective assistance).

1662 AMENDMENT 6—RIGHTS OF ACCUSED
style-driven arena of plea bargaining,335an accused, in considering

a plea, is clearly entitled to advice of counsel on the prospect of

conviction at trial and the extent of punishment that might be imposed. Thus, in Lafler v. Cooper, the government conceded that the

deficient representation part of the Strickland test was met when

an attorney erroneously advised the defendant during plea negotiations that the facts in his case would not support a conviction for

attempted murder.336

Moreover, in Padilla v. Kentucky, the Court held that defense

counsel’s Sixth Amendment duty to a client considering a plea goes

beyond advice on issues directly before the criminal court to reach

advice on deportation.337 Because of its severity, historical association with the criminal justice system, and increasing certainty following conviction and imprisonment, deportation was found to be

of a “unique nature”: the Court pointedly stated that it was not addressing whether distinguishing between direct and collateral consequences of conviction was appropriate in bounding defense counsel’s constitutional duty in a criminal case.338 Further, the Court

held that defense counsel failed to meet prevailing professional norms

in representing to Padilla that he did not have to worry about deportation because of the length of his legal residency in the U.S.

The Court emphasized that this conclusion was not based on the

attorney’s mistaken advice, but rather on a broader obligation to

inform a noncitizen client whether a plea carries a risk of deportation.339 Silence is not an option. On the issue of prejudice to Padilla

from ineffective assistance, the Court sent the case back to lower

courts for further findings.340

What constitutes prejudice from attorney error, the second

Strickland requirement, has proved to be a more difficult issue, and

one that gained additional doctrinal salience after Lafler and Frye.

341

335 See, e.g., Premo v. Moore, 562 U.S. ___, No. 09–658, slip op. (2011).

336 Lafler v. Cooper, 566 U.S. ___, No. 10–209, slip op. (2012). Failure to communicate a plea offer to a defendant also may amount to deficient representation. Missouri v. Frye, 566 U.S. ___, No. 10–444, slip op. (2012) (“[A]s a general rule, defense

counsel has the duty to communicate formal offers from the prosecution to accept a

plea on terms and conditions that may be favorable to the accused.”).

337 Padilla v. Kentucky, 559 U.S. ___, No. 08–651, slip op. (2010).

338 559 U.S. ___, No. 08–651, slip op. at 8.

339 559 U.S. ___, No. 08–651, slip op. at 12–16.

340 In Chaidez v. United States, 568 U.S. ___, No. 11–820, slip op. (2013), the

Court held that Padilla announced a “new rule” of criminal procedure that did not

apply “retroactively” during collateral review of convictions then already final. Retroactive application of the Court’s criminal procedure decisions is discussed under

the topic “Retroactivity Versus Prospectivity” in Article III, supra.

341 The Frye Court observed that, according to the Bureau of Justice Statistics,

ninety-seven percent of recent federal convictions and ninety-four percent of recent

state convictions had resulted from guilty pleas. Hill v. Lockhart had earlier estabAMENDMENT 6—RIGHTS OF ACCUSED 1663
The touchstone of “prejudice” under Strickland is that 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.” 342 Nevertheless, defendants frequently fall short on the prejudice requirement, with

the Court posing it as a threshold matter and failing to find how

other representation could have made a significant difference.343

Beyond Strickland’s “reasonable probability of a different result” starting point, there are issues of when an “outcome determinative” test alone suffices, what exceptions exist, and whether the

general rule should be modified. In Lockhart v. Fretwell, the Court

appeared to refine the Strickland test when it stated that an “analysis focusing solely on mere outcome determination” is “defective” unless attention is also given to whether the result was “fundamenlished a basis for a Sixth Amendment challenge to a conviction arising from a plea

bargain if a defendant could show he accepted the plea after having received ineffective assistance of counsel. By laying a basis for a Sixth Amendment challenge to a

failure to accept a plea offer from the prosecution, Frye and Lafler recognized the

possiblility of prejudice from ineffective bargaining alone regardless of the fairness

of a subsequent conviction after a later plea to the court or a full trial.

342 Strickland, 466 U.S. at 694. This standard does not require that “a defendant show that counsel’s deficient conduct more likely than not altered the outcome

in the case.” Strickland, 466 U.S. at 693. See also Porter v. McCollum, 558 U.S. ___,

No. 08–10537, slip op. at 15 (2009). Also, presentation of a plausible mitigation theory

supported by evidence does not foreclose prejudice based on counsel’s earlier failure

to have conducted an adequate mitigation investigation. Sears v. Upton, 561 U.S.

___, No. 09–8854, slip op. (2010) (counsel presented evidence of supportive family

ties as a mitigating factor in the penalty phase of a capital case, but a fuller investigation by counsel would have uncovered evidence of physical abuse, pronounced

brain damage, and significantly diminished mental functioning). See also, 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).

343 E.g., Smith v. Spisak, 558 U.S. ___, No. 08–724, slip op. at 11–15 (2010). See

also Hill v. Lockhart, 474 U.S. 52, 60 (1985). 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, the defendant would not have pleaded guilty. And, prejudice may be particularly difficult to infer from a decision to plead guilty because of the many uncertainties

still outstanding during plea negotiations. Premo v. Moore, 562 U.S. ___, No. 09–

658, slip op. (2011).

But see Missouri v. Frye, 566 U.S. ___, No. 10–444, slip op. (2012) and Lafler v.

Cooper, 566 U.S. ___, No. 10–209, slip op. (2012), in which the Court acknowledged

that prejudice could arise from not accepting a plea offer from the prosecution because of inadequate counsel. When prejudice does arise from not accepting a plea

offer, fashioning a remedy should neither grant the defendant a windfall (e.g., automatic revival of the plea offer regardless of the defendant’s subsequent conduct or

conviction), nor must the government’s efforts in securing a later conviction be ignored. To determine a remedy, the Lafler majority would leave it to the trial court’s

discretion in each case to sentence under the forgone plea, sentence under the subsequent conviction, or sentence in accordance with alternatives somewhere in between. The dissenting Justices pointedly criticized this “opaque” guidance.

1664 AMENDMENT 6—RIGHTS OF ACCUSED
tally unfair or unreliable.” 344 However, the Court subsequently

characterized Lockhart as addressing a class of exceptions to the

“outcome determinative” test, and not supplanting it. According to

Williams v. Taylor, it would disserve justice in some circumstances

to find prejudice premised on a likelihood of a different outcome.345

An overriding interest in fundamental fairness precluded a prejudice finding in Lockhart, for example, because such a finding would

be nothing more than a fortuitous windfall for the defendant. As

another example, it would be unjust to find legitimate prejudice in

a defense attorney’s interference with a defendant’s perjured testimony, even if that testimony could have altered a trial’s outcome.346 In Lafler v. Cooper, four dissenters further would have imposed a fundamental fairness overlay to foreclose relief whenever a

defendant proceeded to trial after turning down a plea offer because of incompetent advice of counsel.347 In their view, conviction

after a full and fair trial cannot be prejudicial in a constitutional

sense, even if a forgone plea would have yielded lesser charges or

punishment. This view did not prevail, however.

A second category of recognized exceptions to the application of

the “outcome determinative” prejudice test includes the relatively

limited number of cases in which prejudice is presumed. This presumption occurs when there are “circumstances that are so likely

to prejudice the accused that the cost of litigating their effect in a

particular case is unjustified.” 348 These situations, the Court explained in United States v. Cronic, involve some kind of “breakdown of the adversarial process,” and 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.349 “Apart from circum344 506 U.S. 364, 368–70 (1993). Defense counsel had failed to raise a constitutional claim during sentencing that would have saved the defendant from a death

sentence. The case precedent that supported the claim was itself overturned after

sentencing but before defendant asserted in a habeas writ that he had received ineffective assistance. The Court held, 7–2, that even though the adequacy of counsel’s representation is assessed under the standards that existed contemporaneously

with the conduct, it was inappropriate in assessing prejudice to give the defendant

the benefit of overturned case law. So long as the defendant was not deprived of a

procedural or substantive right to which he would still be entitled, relief is not available. 506 U.S. at 372–73.

345 529 U.S. 362 (2000).

346 529 U.S. at 391–93. The latter example references Nix. v. Whiteside, 475 U.S.

157, 175–76 (1986).

347 566 U.S. ___, No. 10–209, slip op. (2012) (Scalia, J., with Roberts, C.J., and

Thomas, J., dissenting); 566 U.S. ___, No. 10–209, slip op. (2012) (Alito, J., dissenting).

348 United States v. Cronic, 466 U.S. 648, 658 (1984).

349 466 U.S. at 657, 659. But see Bell v. Cone, 535 U.S. 685 (2002) (failure to

introduce mitigating evidence and waiver of closing argument in penalty phase of

AMENDMENT 6—RIGHTS OF ACCUSED 1665
stances of that magnitude, however, there is generally no basis for

finding a Sixth Amendment violation unless the accused can show

[prejudice],” 350 and consequently most claims of inadequate representation continue to be measured by the Strickland standard.351

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.352 It is a right the defendant must adopt knowingly and

intelligently; under some circumstances the trial judge may deny

the authority to exercise it, as when the defendant simply lacks the

competence to make a knowing or intelligent waiver of counsel or

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 of an opportunity for rebuttal); Mickens v. Taylor, 535 U.S.

162 (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). In Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam),

the Supreme Court noted that it has never ruled on whether, during a plea hearing

at which the defendant pleads guilty, defense counsel’s being linked to the courtroom by speaker phone, rather than being physically present, is likely to result in

such poor performance that Cronic should apply. The fact that the Court has never

ruled on the question means that “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law,’ ” and, as a consequence, under the

Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), the

defendant is not entitled to habeas relief. Id. at 748 (quoting Carey v. Musladin, 549

U.S. 70, 77 (2006), as to which see “Limitations on Habeas Corpus Review of Capital Sentences” under Eighth Amendment, infra.

350 Cronic, 466 U.S. at 659 n.26.

351 Strickland and Cronic were decided the same day, and the Court’s opinion

in each cited the other. See Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666

n.41. The Cronic presumption of prejudice may be appropriate when counsel’s “overall performance” is brought into question, whereas Strickland is generally the appropriate test for “claims based on specified [counsel] errors.” Cronic, 466 U.S. at 666

n.41. The narrow reach of Cronic has been illustrated by subsequent decisions. Not

constituting per se ineffective assistance is a defense counsel’s failure to file a notice

of appeal, or in some circumstances even to consult with the defendant about an

appeal. Roe v. Flores-Ortega, 528 U.S. 470 (2000). But see Lozada v. Deeds, 498 U.S.

430, 432 (1991) (per curiam). See also Florida v. Nixon, 543 U.S. 175 (2004) (no presumption of prejudice when a defendant has failed to consent to a tenable strategy

counsel has adequately disclosed to and discussed with him). A standard somewhat

different from Cronic and Strickland governs claims of attorney conflict of interest.

See discussion of Cuyler v. Sullivan under “Protection of Right to Retained Counsel,” supra.

352 Faretta v. California, 422 U.S. 806 (1975). An invitation to overrule Faretta

because it leads to unfair trials for defendants was declined in Indiana v. Edwards,

128 S. Ct. 2379, 2388 (2008). 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. 422 U.S. at 834–35 n.46. The Court,

however, has not addressed what state aid, such as access to a law library, might

need to be made available to a defendant representing himself. Kane v. Garcia Espitia,

546 U.S. 9 (2005) (per curiam). 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).

1666 AMENDMENT 6—RIGHTS OF ACCUSED
when his self-representation is so disruptive of orderly procedures

that the judge may curtail it.353 The right applies only at trial; there

is no constitutional right to self-representation on direct appeal from

a criminal conviction.354

The essential elements of self-representation were spelled out

in McKaskle v. Wiggins,

355 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.” 356 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.357

Right to Assistance of Counsel in Nontrial Situations

Judicial Proceedings Before Trial.—Even a preliminary hearing where no government prosecutor is present can trigger the right

to counsel.358 “[A] criminal defendant’s defendant’s initial appearance before a judicial officer, where he learns the charges against

him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth

Amendment right to counsel.” 359 “Attachment,” however, may signify “nothing more than the beginning of the defendant’s prosecution [and] . . . not mark the beginning of a substantive entitlement

to the assistance of counsel.” 360 Thus, counsel need be appointed

only “as far in advance of trial, and as far in advance of any pre353 The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial.

Indiana v. Edwards, 128 S. Ct. 2379 (2008). Mental competence to stand trial, however, is sufficient to ensure the right to waive the right to counsel in order to plead

guilty. Godinez v. Moran, 509 U.S. 389, 398 (1993).

354 Martinez 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.

355 465 U.S. 168 (1984).

356 465 U.S. at 178.

357 465 U.S. at 184.

358 Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008) (right to appointed counsel attaches even if no public prosecutor, as distinct from a police officer, is aware of

that initial proceeding or involved in its conduct).

359 128 S. Ct. at 2592.

360 128 S. Ct. at 2592 (Alito, J., concurring). Justice Alito’s concurrence, joined

by Chief Justice Roberts and Justice Scalia, was not necessary for the majority opinion in Rothgery, but the majority noted that it had not decided “whether the 6-month

delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth AmendAMENDMENT 6—RIGHTS OF ACCUSED 1667
trial ‘critical stage,’ as necessary to guarantee effective assistance

at trial.” 361

Dicta in Powell v. Alabama,

362 however, 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 was gradually expanded upon and the Court

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,

363 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. In White v. Maryland,

364 the Court set aside a conviction obtained at a trial at which the defendant’s plea of guilty, entered at

a preliminary hearing at which he was without counsel, was introduced as evidence against him at trial. Finally, in Coleman v. Alabama,

365 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 crossexamination 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 cross-examination 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 betment rights, and have no occasion to consider what standards should apply in deciding this.” Id.

361 128 S. Ct. at 2595 (Alito, J. concurring).

362 287 U.S. 45, 57 (1932).

363 368 U.S. 52 (1961).

364 373 U.S. 59 (1963).

365 399 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).

1668 AMENDMENT 6—RIGHTS OF ACCUSED
ter trial preparation; and he could influence the court in such matters as bail and psychiatric examination. The result seems to be

that reached in pre-Gideon cases in which a defendant was entitled to counsel if a lawyer might have made a difference.366

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.367 It held in Spano

v. New York 368 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. The Court

issued that holding in Massiah v. United States,

369 in which federal officers caused an informer to elicit from the already-indicted

defendant, who was represented by a lawyer, incriminating admissions that were secretly overheard over a broadcasting unit. Then,

in Escobedo v. Illinois,

370 the Court held that preindictment interrogation violated the Sixth Amendment. But Miranda v. Arizona 371 switched from reliance on the Sixth Amendment to reliance on the Fifth Amendment’s Self-Incrimination Clause in cases

of pre-indictment custodial interrogation, although Miranda still placed

great emphasis upon police warnings of the right to counsel and

foreclosure of interrogation in the absence of counsel without a valid

waiver by defendant.372

Massiah was reaffirmed and in some respects expanded by the

Court. In Brewer v. Williams,

373 the right to counsel was found vio366 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).

367 Crooker v. California, 357 U.S. 433 (1958) (five-to-four decision); Cicenia v.

Lagay, 357 U.S. 504 (1958) (five-to-three).

368 360 U.S. 315 (1959).

369 377 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). In Kansas v. Ventris, 556

U.S. ___, No. 07–1356, slip op. at 5 (Apr. 29, 2009), the Court “conclude[d] that the

Massiah right is a right to be free of uncounseled interrogation, and is infringed at

the time of the interrogation,” not merely if and when the defendant’s statement is

admitted into evidence.

370 378 U.S. 478 (1964).

371 384 U.S. 436 (1966).

372 The different issues in Fifth and Sixth Amendment cases were summarized

in Fellers v. United States, 540 U.S. 519 (2004), which held that absence of an interrogation is irrelevant in a Massiah-based Sixth Amendment inquiry.

373 430 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.

AMENDMENT 6—RIGHTS OF ACCUSED 1669
lated 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. In

United States v. Henry,

374 the Court 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 that result would follow.

The Court extended the Edwards v. Arizona 375 rule protecting

in-custody requests for counsel to post-arraignment situations where

the right derives from the Sixth Amendment rather than the Fifth.

In the subsequently overruled Michigan v. Jackson, the Court held

that, “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.” 376 The Court concluded that “the reasons

for prohibiting the interrogation of an uncounseled prisoner who has

asked for the help of a lawyer are even stronger after he has been

formally charged with an offense than before.” 377 The protection,

however, is not as broad under the Sixth Amendment as it is under

the Fifth. Although 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,378 this

extension does not apply for purposes of the Sixth Amendment right

374 447 U.S. 264 (1980). Justices Blackmun, White, and Rehnquist dissented.

Id. at 277, 289. Accord, Kansas v. Ventris, 556 U.S. ___, No. 07–1356, slip op. at 2

(Apr. 29, 2009). But cf. Weatherford v. Bursey, 429 U.S. 545, 550 (1977) (rejecting a

per se rule that, regardless of the circumstances, “if an undercover agent meets with

a criminal defendant who is awaiting trial and with his attorney and if the forthcoming trial is discussed without the agent revealing his identity, a violation of the defendant’s constitutional rights has occurred . . . ”).

375 451 U.S. 477 (1981). See Fifth Amendment, “Miranda v. Arizona,” supra.

376 475 U.S. 625, 636 (1986).

377 475 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).

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

1670 AMENDMENT 6—RIGHTS OF ACCUSED
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.” 379 Therefore, although 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.380

In Montejo v. Louisiana,

381 the Court overruled Michigan v. Jackson, finding that the Fifth Amendment’s “Miranda-EdwardsMinnick line of cases” constitutes sufficient protection of the right

to counsel. In Montejo, the defendant had not actually requested a

lawyer, but had stood mute at a preliminary hearing at which the

judge ordered the appointment of counsel. Later, before Montejo had

met his attorney, two police detectives read him his Miranda rights

and he agreed to be interrogated. Michigan v. Jackson had prohibited waivers of the right to counsel after a defendant’s assertion of

the right to counsel, so the Court in Montejo was faced with the

question of whether Michigan v. Jackson applied where an attorney had been appointed in the absence of such an assertion.

The Court in Montejo noted that “[n]o reason exists to assume

that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights,

would not be perfectly amenable to speaking with the police without having counsel present.” 382 But, to apply Michigan v. Jackson

only when the defendant invokes his right to counsel “would be unworkable in more than half the States of the Union,” where “appointment of counsel is automatic upon a finding of indigency” or may

be made “sua sponte by the court.” 383 “On the other hand, eliminating the invocation requirement would render the rule easy to apply

but depart fundamentally from the Jackson rationale,” which was

“to prevent police from badgering defendants into changing their

minds about their rights” after they had invoked them.384 Moreover, the Court found, Michigan v. Jackson achieves little by way

379 McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The reason that the right is

“offense-specific” is that “it does not attach until a prosecution is commenced.” Id.

380 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.

381 556 U.S. ___, No. 07–1529, slip op. at 15 (2009).

382 556 U.S. ___, No. 07–1529, slip op. at 10.

383 556 U.S. ___, No. 07–1529, slip op. at 13, 4.

384 556 U.S. ___, No. 07–1529, slip op. at 13, 10.

AMENDMENT 6—RIGHTS OF ACCUSED 1671
of preventing unconstitutional conduct. Without Jackson, there would

be “few if any” instances in which “fruits of interrogations made

possible by badgering-induced involuntary waivers are ever erroneously admitted at trial. . . . The principal reason is that the Court

has already taken substantial other, overlapping measures toward

the same end. . . . Under the Miranda-Edwards-Minnick line of cases

(which is not in doubt), a defendant who does not want to speak to

the police without counsel present need only say as much when he

is first approached and given the Miranda warnings. At that point,

not only must the immediate contact end, but ‘badgering’ by later

requests is prohibited.” 385 Thus, the Court in Montejo overruled Michigan v. Jackson.

386

The remedy for violation of the Sixth Amendment rule is exclusion from evidence of statements so obtained.387 And, although 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,

388 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.” 389

Also, an exception to the Sixth Amendment exclusionary rule has

been recognized for the purpose of impeaching the defendant’s trial

testimony.390

385 556 U.S. ___, No. 07–1529, slip op. at 15.

386 Justice Stevens, joined by Justices Souter and Ginsburg, and by Justice Breyer

except for footnote 5, dissented. He wrote, “The majority’s analysis flagrantly misrepresents Jackson’s underlying rationale and the constitutional interests the decision

sought to protect. . . . [T]he Jackson opinion does not even mention the antibadgering considerations that provide the basis for the Court’s decision today. Instead, Jackson relied primarily on cases discussing the broad protections guaranteed by the Sixth Amendment right to counsel—not its Fifth Amendment counterpart.

Jackson emphasized that the purpose of the Sixth Amendment is to ‘protec[t] the

unaided layman at critical confrontations with his adversary,’ by giving him ‘the right

to rely on counsel as a medium between him[self] and the State.’ . . . Once Jackson

is placed in its proper Sixth Amendment context, the majority’s justifications for overruling the decision crumble.” Slip op. at 5, 6 (internal quotation marks and citations

omitted). Justice Stevens added, “Even if Jackson had never been decided, it would

be clear that Montejo’s Sixth Amendment rights were violated. . . . Because police

questioned Montejo without notice to, and outside the presence of, his lawyer, the

interrogation violated Montejo’s right to counsel even under pre-Jackson precedent.”

Slip op. at 10–11.

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

388 467 U.S. 431 (1984).

389 467 U.S. at 446.

390 Michigan v. Harvey, 494 U.S. 344 (1990) (post-arraignment statement taken

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

1672 AMENDMENT 6—RIGHTS OF ACCUSED
Lineups and Other Identification Situations.—The concept

of the “critical stage” was again expanded and its rationale formulated in United States v. Wade,

391 which, with Gilbert v. California,

392 held that lineups are a critical stage and that in-court identification of defendants based on out-of-court lineups or show-ups

without the presence of defendant’s counsel is inadmissible. The Sixth

Amendment guarantee, said Justice Brennan, was intended to do

away with the common-law limitation of assistance of counsel to

matters of law, excluding matters of fact. The abolition of the factlaw 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 marshaled, 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.’ ” 393

“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.” 394 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.395 However, because there was less certainty

and frequency of possible injustice at this stage, the Court held that

the two cases were to be given prospective effect only; more egretrial testimony); Kansas v. Ventris, 556 U.S. ___, No. 07–1356, slip op. at 6 (2009)

(statement made to informant planted in defendant’s holding cell admissible for impeachment purposes because “[t]he interests safeguarded by . . . exclusion are ‘outweighed by the need to prevent perjury and to assure the integrity of the trial process”).

391 388 U.S. 218 (1967).

392 388 U.S. 263 (1967).

393 United States v. Wade, 388 U.S. 218, 224–25 (1967).

394 388 U.S. at 226 (citations omitted).

395 388 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.

AMENDMENT 6—RIGHTS OF ACCUSED 1673
gious 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.396 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.397

In United States v. Ash,

398 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.” 399 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.

Because 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 because the possibilities

of abuse in a photographic display are discoverable and reconstructable

396 Stovall v. Denno, 388 U.S. 293 (1967).

397 Gilbert v. California, 388 U.S. 263, 265–67 (1967) (handwriting exemplars);

Schmerber v. California, 384 U.S. 757, 765–66 (1966) (blood samples).

398 413 U.S. 300 (1973). Justices Brennan, Douglas, and Marshall dissented. Id.

at 326.

399 413 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 courtappointed psychiatrist to determine his competency to stand trial, after his indictment, was a “critical” stage, and he was entitled to the assistance of counsel before

submitting to it. Estelle v. Smith, 451 U.S. 454, 469–71 (1981). Constructive notice

is insufficient to alert counsel to psychiatric examination to assess future dangerousness of an indicted client. Satterwhite v. Texas, 486 U.S. 249 (1987) (also subjecting

Estelle v. Smith violations to harmless error analysis in capital cases).

1674 AMENDMENT 6—RIGHTS OF ACCUSED
at trial by examination of witnesses, an indicted defendant is not

entitled to have his counsel present at such a display.400

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,401 but

the cases in which the rulings were denied retroactive application

involved preindictment lineups.402 Nevertheless, in Kirby v. Illinois,

403 the Court held that no right to counsel exists 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.” 404 The Court’s distinguishing of the underlying basis for Miranda v. Arizona 405 left that case basically un400 413 U.S. at 317–21. The due process standards are discussed under the Fourteenth Amendment, “Criminal Identification Process,” infra.

401 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).

402 Stovall v. Denno, 388 U.S. 293 (1967); Foster v. California, 394 U.S. 440 (1969);

Coleman v. Alabama, 399 U.S. 1 (1970).

403 406 U.S. 682, 689 (1972).

404 406 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, who

dissented in Wade and Gilbert, dissented in Kirby 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).

405 “[T]he Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self-incrimination, upon the theory

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

Court).

AMENDMENT 6—RIGHTS OF ACCUSED 1675
affected by Kirby, but it appears that Escobedo v. Illinois,

406 and

perhaps other cases, is greatly restricted thereby.

Post-Conviction Proceedings.—The right to counsel under the

Sixth Amendment applies to “criminal prosecutions,” a restriction

that limits its scope but does not exhaust all constitutional rights

to representation in adversarial contexts associated with the criminal justice process. The Sixth Amendment requires counsel at the

sentencing stage,407 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.408 Beyond this,

however, the Court has eschewed Sixth Amendment analysis, instead delimiting the right to counsel under due process and equal

protection principles.409

Noncriminal and Investigatory Proceedings.—Commitment proceedings that lead to the imposition of essentially criminal punishment are subject to the Due Process Clause and require

the assistance of counsel.410 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.411 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

406 “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).

407 Townsend v. Burke, 334 U.S. 736 (1948).

408 Mempa v. Rhay, 389 U.S. 128 (1967) (applied retroactively in McConnell v.

Rhay, 393 U.S. 2 (1968)).

409 State criminal appeals, applications for collateral relief, and post-sentencing

parole or probation determinations are examples of procedures with respect to which

the Court has not invoked the Sixth Amendment. Using due process analysis, the

Court has found no constitutional right to counsel 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 Fourteenth Amendment, “Rights of Prisoners,” infra.

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

411 In re Groban, 352 U.S. 330 (1957). Four Justices dissented.

1676 AMENDMENT 6—RIGHTS OF ACCUSED
grand jury proceeding, and who based their refusal on the ground

that their counsel were required to remain outside the hearing room.412

412 Anonymous v. Baker, 360 U.S. 287 (1959). Four Justices dissented.

AMENDMENT 6—RIGHTS OF ACCUSED 1677