[Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Sixth Amendment - Rights of Accused in Criminal Prosecutions]
[From the U.S. Government Printing Office, www.gpo.gov]
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
Criminal Prosecutions..................................... 1399
Offenses Against the United States................ 1400
Right to a Speedy and Public Trial........................ 1400
Speedy Trial.............................................. 1400
Source and Rationale.............................. 1400
Application and Scope............................. 1401
When the Right Is Denied.......................... 1402
Public Trial.............................................. 1404
Right to Trial by Impartial Jury.......................... 1406
Jury Trial................................................ 1406
The Attributes of the Jury........................ 1408
Criminal Proceedings to Which the Guarantee
Impartial Jury............................................ 1412
Place of Trial--Jury of the Vicinage...................... 1419
Notice of Accusation...................................... 1420
Compulsory Process........................................ 1429
Assistance of Counsel..................................... 1429
Development of an Absolute Right to Counsel at Trial...... 1429
Powell v. Alabama................................. 1430
Johnson v. Zerbst................................. 1431
Betts v. Brady and Progeny........................ 1432
Gideon v. Wainwright.............................. 1434
Protection of the Right to Retained Counsel....... 1435
Effective Assistance of Counsel................... 1437
Right to Assistance of Counsel in Nontrial Situations..... 1440
Judicial Proceedings Before Trial................. 1440
Custodial Interrogation........................... 1441
Lineups and Other Identification Situations....... 1444
Post-Conviction Proceedings....................... 1447
Noncriminal and Investigatory Proceedings......... 1447
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
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 in the District of Columbia\1\ and in
incorporated territories\2\ must conform to this Amendment, but those in
the unincorporated territories need not do so.\3\ In upholding a trial
before a United States consul of a United States citizen for a crime
committed within the jurisdiction of a foreign nation, the Court
specifically held that this Amendment reached only citizens and others
within the United States or who were brought to the United States for
trial for alleged offenses committed elsewhere, and not to citizens
residing or temporarily sojourning abroad.\4\ It is clear that this
holding no longer is supportable after Reid v. Covert,\5\ but it is not
clear what the constitutional rule is. All of the
rights guaranteed in this Amendment are so fundamental that they have
been made applicable against state abridgment by the due process clause
of the Fourteenth Amendment.\6\
\1\Callan v. Wilson, 127 U.S. 540 (1888).
\2\Reynolds v. United States, 98 U.S. 145 (1879). See also
Lovato v. New Mexico, 242 U.S. 199 (1916).
\3\Balzac v. Puerto Rico, 258 U.S. 298, 304-05 (1922); Dorr v.
United States, 195 U.S. 138 (1904). These holdings are, of course,
merely one element of the doctrine of the Insular Cases, De Lima v.
Bidwell, 182 U.S. 1 (1901); and Downes v. Bidwell, 182 U.S. 244 (1901),
concerned with the ``Constitution following the flag.'' Supra, pp.324-
25. Cf. Rassmussen v. United States, 197 U.S. 516 (1905).
\4\In re Ross, 140 U.S. 453 (1891).
\5\354 U.S. 1 (1957) (holding that civilian dependents of
members of the Armed Forces overseas could not constitutionally be tried
by court-martial in time of peace for capital offenses committed
abroad). Four Justices, Black, Douglas, Brennan, and Chief Justice
Warren, disapproved Ross as ``resting . . . on a fundamental
misconception'' that the Constitution did not limit the actions of the
United States Government wherever it acted, id. at 5-6, 10-12, and
evinced some doubt with regard to the Insular Cases as well. Id. at 12-
14. Justices Frankfurter and Harlan, 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 court-martial involved in the case was not a ``criminal
prosecution'' within the meaning of the Amendment).
\6\Citation is made in the sections dealing with each provision.
Offenses Against the United States.--There are no common-law
offenses against the United States. Only those acts which Congress has
forbidden, with penalties for disobedience of its command, are
crimes.\7\ Actions to recover penalties imposed by act of Congress
generally but not invariably have been held not to be criminal
prosecutions,\8\ as is true also of deportation proceedings,\9\ but
contempt proceedings which were at one time not considered to be
criminal prosecutions are no longer within that category.\10\ To what
degree Congress may make conduct engaged in outside the territorial
limits of the United States a violation of federal criminal law is a
matter not yet directly addressed by the Court.\11\
\7\United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32 (1812);
United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816); United States
v. Britton, 108 U.S. 199, 206 (1883); United States v. Eaton, 144 U.S.
677, 687 (1892).
\8\Oceanic Navigation Co. v. Stranaham, 214 U.S. 320 (1909);
Hepner v. United States, 213 U.S. 103 (1909); United States v. Regan,
232 U.S. 37 (1914).
\9\United States ex rel. Turner v. Williams, 194 U.S. 279, 289
(1904); Zakonaite v. Wolf, 226 U.S. 272 (1912).
\10\Compare In re Debs, 158 U.S. 564 (1895), with Bloom v.
Illinois, 391 U.S. 194 (1968).
\11\See United States v. Bowman, 260 U.S. 94 (1922) (treating
question as a matter of statutory interpretation); National Commission
on Reform of Federal Criminal Laws, Working Papers 69-76 (1970).
Congress has recently asserted the authority by criminalizing various
terrorist acts committed abroad against U.S. nationals. See, e.g.,
prohibitions against hostage taking and air piracy contained in Pub. L.
No. 98-473, ch. XX; 18 U.S.C. Sec. 1203 and 49 U.S.C. app.
Sec. Sec. 1471, 72; and prohibitions against killing or doing physical
violence to a U.S. national abroad contained in Pub. L. No. 99-399,
Sec. 1202(a), 100 Stat. 896 (1986); 18 U.S.C. Sec. 2331.
Extraterritorial jurisdiction under the hostage taking and air piracy
laws was upheld by an appeals court in United States v. Yunis, 924 F.2d
1086 (D.C. Cir. 1991).
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
RIGHT TO A SPEEDY AND PUBLIC TRIAL
Source and Rationale.--The right to a speedy trial may be
derived from a provision of Magna Carta and it was a right so
interpreted by Coke.\12\ Much the same language was incorporated
into the Virginia Declaration of Rights of 1776 \13\ and from there into
the Sixth Amendment. Unlike other provisions of the Amendment, this
guarantee can be attributable to reasons which have to do with the
rights of and infliction of harms to both defendants and society. The
provision is ``an important safeguard to prevent undue and oppressive
incarceration prior to trial, to minimize anxiety and concern
accompanying public accusation and to limit the possibility that long
delay will impair the ability of an accused to defend himself.''\14\ The
passage of time alone may lead to the loss of witnesses through death or
other reasons and the blurring of memories of available witnesses. But
on the other hand, ``there is a societal interest in providing a speedy
trial which exists separate from and at times in opposition to the
interests of the accused.'' Persons in jail must be supported at
considerable public expense and often families must be assisted as well.
Persons free in the community may commit other crimes, may be tempted
over a lengthening period of time to ``jump'' bail, and may be able to
use the backlog of cases to engage in plea bargaining for charges or
sentences which do not give society justice. And delay often retards the
deterrent and rehabilitative effects of the criminal law.\15\
\12\``We will sell to no man, we will not deny or defer to any
man either justice or right.'' Ch. 40 of the 1215 Magna Carta, a portion
of ch. 29 of the 1225 reissue. Klopfer v. North Carolina, 386 U.S. 213,
\13\7 F. Thorpe, The Federal and State Constitutions, H. Doc.
No. 357, 59th Congress, 2d Sess. 8, 3813 (1909).
\14\United States v. Ewell, 383 U.S. 116, 120 (1966). See also
Klopfer v. North Carolina, 386 U.S. 213, 221-22 (1967); Smith v. Hooey,
393 U.S. 374, 377-379 (1969); Dickey v. Florida, 389 U.S. 30, 37-38
\15\Barker v. Wingo, 407 U.S. 514, 519 (1972); Dickey v.
Florida, 398 U.S. 30, 42 (1970) (Justice Brennan concurring). Congress
by the Speedy Trial Act of 1974, Pub. L. No. 93-619, 88 Stat. 2076, 18
U.S.C. Sec. Sec. 3161-74, has codified the law with respect to the
right, intending ``to give effect to the sixth amendment right to a
speedy trial.'' S. Rep. No. 1021, 93d Congress, 2d Sess. 1 (1974).
Application and Scope.--Because the guarantee of a speedy trial
``is one of the most basic rights preserved by our Constitution,'' it is
one of those ``fundamental'' liberties embodied in the Bill of Rights
which the due process clause of the Fourteenth Amendment makes
applicable to the States.\16\ The protection afforded by this guarantee
``is activated only when a criminal prosecution has begun and extends
only to those persons who have been `accused' in the course of that
prosecution.'' Invocation of the right need not await indictment,
information, or other formal charge but begins with the actual
restraints imposed by arrest if those restraints precede the formal
preferring of charges.\17\ Possible prejudice that
may result from delays between the time government discovers sufficient
evidence to proceed against a suspect and the time of instituting those
proceedings is guarded against by statutes of limitation, which
represent a legislative judgment with regard to permissible periods of
delay.\18\ In two cases, the Court held that the speedy trial guarantee
had been violated by States which preferred criminal charges against
persons who were already incarcerated in prisons of other jurisdictions
following convictions on other charges when those States ignored the
defendants' requests to be given prompt trials and made no effort
through requests to prison authorities to obtain custody of the
prisoners for purposes of trial.\19\ A state practice permitting the
prosecutor to take nolle prosequi with leave, which discharged the
accused from custody but left him subject at any time thereafter to
prosecution at the discretion of the prosecutor, the statute of
limitations being tolled, was condemned as violative of the
\16\Klopfer v. North Carolina, 386 U.S. 213, 226 (1967).
\17\United States v. Marion, 404 U.S. 307, 313, 320, 322 (1971).
Justices Douglas, Brennan, and Marshall disagreed, arguing that the
``right to a speedy trial is the right to be brought to trial speedily
which would seem to be as relevant to pretrial indictment delays as it
is to post-indictment delays,'' but concurring because they did not
think the guarantee violated under the facts of the case. Id. at 328. In
United States v. MacDonald, 456 U.S. 1 (1982), the Court held the clause
was not implicated by the action of the United States when, in May of
1970, it proceeded with a charge of murder against defendant under
military law but dismissed the charge in October of that year, and he
was discharged in December. In June of 1972, the investigation was
reopened and an investigation was begun, but a grand jury was not
convened until August of 1974, and MacDonald was not indicted until
January of 1975. The period between dismissal of the first charge and
the later indictment had none of the characteristics which called for
application of the speedy trial clause. The period between arrest and
indictment must be considered in evaluating a speedy trial claim. Marion
and MacDonald were applied in United States v. Loud Hawk, 474 U.S. 302
(1986), holding the speedy trial guarantee inapplicable to the period
during which the government appealed dismissal of an indictment, since
during that time the suspect had not been subject to bail or otherwise
\18\United States v. Marion, 404 U.S. 307, 322-23 (1971). Cf.
United States v. Toussie, 397 U.S. 112, 114-15 (1970). In some
circumstances, pre-accusation delay could constitute a due process
violation but not a speedy trial problem. If prejudice results to a
defendant because of the government's delay, a court should balance the
degree of prejudice against the reasons for delay given by the
prosecution. Marion, supra, at 324; United States v. Lovasco, 431 U.S.
783 (1977); United States v. MacDonald, 456 U.S. 1, 8 (1982).
\19\Smith v. Hooey, 393 U.S. 374 (1969); Dickey v. Florida, 398
U.S. 30 (1970).
\20\Klopfer v. North Carolina, 386 U.S. 213 (1967). In Pollard
v. United States, 352 U.S. 354 (1957), the majority assumed and the
dissent asserted that sentence is part of the trial and that too lengthy
or unjustified a delay in imposing sentence could run afoul of this
When the Right is Denied.--``The right of a speedy trial is
necessarily relative. It is consistent with delays and depends upon
circumstances. It secures rights to a defendant. It does not preclude
the rights of public justice.''\21\ No length of time is per se too long
to pass scrutiny under this guarantee,\22\ but on the other hand nei
ther does the defendant have to show actual prejudice by delay.\23\ The
Court rather has adopted an ad hoc balancing approach. ``We can do
little more than identify some of the factors which courts should assess
in determining whether a particular defendant has been deprived of his
right. Though some might express them in different ways, we identify
four such factors: Length of delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to the
defendant.''\24\ The fact of delay triggers an inquiry and is dependent
on the circumstances of the case. Reasons for delay will vary. A
deliberate delay for advantage will weigh heavily, whereas the absence
of a witness would justify an appropriate delay, and such factors as
crowded dockets and negligence will fall between these other
factors.\25\ It is the duty of the prosecution to bring a defendant to
trial, and the failure of the defendant to demand the right is not to be
construed as a waiver of the right;\26\ yet, the defendant's
acquiescence in delay when it works to his advantage should be
considered against his later assertion that he was denied the guarantee,
and the defendant's responsibility for the delay would be conclusive.
Finally, a court should look to the possible prejudices and
disadvantages suffered by a defendant during a delay.\27\
\21\Beavers v. Haubert, 198 U.S. 77, 87 (1905) (holding that the
guarantee could not be invoked by a defendant first indicted in one
district to prevent removal to another district where he had also been
\22\Cf. Pollard v. United States, 352 U.S. 354 (1957); United
States v. Ewell, 383 U.S. 116 (1966). See United States v. Provoo, 350
U.S. 857 (1955), aff'g 17 F.R.D. 183 (D. Md. 1955).
\23\United States v. Marion, 404 U.S. 307, 320 (1971); Barker v.
Wingo, 407 U.S. 514, 536 (1972) (Justice White concurring).
\24\Barker v. Wingo, 407 U.S. 514, 530 (1972). For the federal
courts, Congress under the Speedy Trial Act of 1974 imposed strict time
deadlines, replacing the Barker factors.
\25\Barker v. Wingo, 407 U.S. 514, 531 (1972). Delays caused by
the prosecution's interlocutory appeal will be judged by the Barker
factors, of which the second--the reason for the appeal--is the most
important. United States v. Loud Hawk, 474 U.S. 302 (1986) (no denial of
speedy trial, since prosecution's position on appeal was strong, and
there was no showing of bad faith or dilatory purpose). If the
interlocutory appeal is taken by the defendant, he must ``bear the heavy
burden of showing an unreasonable delay caused by the prosecution [or]
wholly unjustifiable delay by the appellate court'' in order to win
dismissal on speedy trial grounds. Id. at 316.
\26\Id. at 528. See generally id. at 523-29. Waiver is ``an
intentional relinquishment or abandonment of a known right or
privilege,'' Johnson v. Zerbst, 304 U.S. 458, 464 (1938), and it is not
to be presumed but must appear from the record to have been
intelligently and understandingly made. Carnley v. Cochran, 369 U.S.
506, 516 (1962).
\27\Barker v. Wingo, 407 U.S. 514, 532 (1972).
A determination that a defendant has been denied his right to a
speedy trial results in a decision to dismiss the indictment or to
reverse a conviction in order that the indictment be dismissed.\28\
\28\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).
``This nation's accepted practice of guaranteeing a public trial
to an accused has its roots in our English common law heritage. The
exact date of its origin is obscure, but it likely evolved long before
the settlement of our land as an accompaniment of the ancient
institution of jury trial. In this country the guarantee to an accused
of the right to a public trial first appeared in a state constitution in
1776. Following the ratification in 1791 of the Federal Constitution's
Sixth Amendment . . . most of the original states and those subsequently
admitted to the Union adopted similar constitutional provisions. Today
almost without exception every state by constitution, statute, or
judicial decision, requires that all criminal trials be open to the
``The traditional Anglo-American distrust for secret trials has
been variously ascribed to the notorious use of this practice by the
Spanish Inquisition, to the excesses of the English Court of Star
Chamber, and to the French monarchy's abuse of the letter de cachet. All
of these institutions obviously symbolized a menace to liberty. . . .
Whatever other benefits the guarantee to an accused that his trial be
conducted in public may confer upon our society, the guarantee has
always been recognized as a safeguard against any attempt to employ our
courts as instruments of persecution.''\29\ The purposes of the
requirement of open trials are multiple: it helps to assure the criminal
defendant a fair and accurate adjudication of guilt or innocence, it
provides a public demonstration of fairness, it discourages perjury, the
misconduct of participants, and decisions based on secret bias or
partiality. The Court has also expatiated upon the therapeutic value to
the community of open trials to enable the public to see justice done
and the fulfillment of the urge for retribution that people feel upon
the commission of some kinds of crimes.\30\ Because of the near
universality of the guarantee in this country, the Supreme Court has had
little occasion to deal with the right. It is a right so fundamental
that it is protected against state deprivation by the due process
clause,\31\ but it is not
so absolute that reasonable regulation designed to forestall prejudice
from publicity and disorderly trials is foreclosed.\32\ The banning of
television cameras from the courtroom and the precluding of live
telecasting of a trial is not a denial of the right,\33\ although the
Court does not inhibit televised trials under the proper
\29\In re Oliver, 333 U.S. 257, 266-70 (1948) (citations
omitted). Other panegyrics to the value of openness, accompanied with
much historical detail, are Gannett Co. v. DePasquale, 443 U.S. 368,
406, 411-33 (1979) (Justice Blackmun concurring in part and dissenting
in part); Richmond Newspapers v. Virginia, 448 U.S. 555, 564-73 (1980)
(plurality opinion of Chief Justice Burger); id. at 589-97 (Justice
Brennan concurring); Globe Newspaper Co. v. Superior Court, 457 U.S.
596, 603-07 (1982).
\30\Estes v. Texas, 381 U.S. 532, 538-39 (1965); Richmond
Newspapers v. Virginia, 448 U.S. 555, 569-73 (1980) (plurality opinion
of Chief Justice Burger); id. at 593-97 (Justice Brennan concurring).
\31\In re Oliver, 333 U.S. 257 (1948); Levine v. United States,
362 U.S. 610 (1960). Both cases were contempt proceedings which were not
then ``criminal prosecutions'' to which the Sixth Amendment applied (for
the modern rule see Bloom v. Illinois, 391 U.S. 194 (1968)), so that the
cases were wholly due process holdings. Cf. Richmond Newspapers v.
Virginia, 448 U.S. 555, 591 n.16 (1980) (Justice Brennan concurring).
\32\Cf. Sheppard v. Maxwell, 384 U.S. 333 (1966); Nebraska Press
Ass'n v. Stuart, 427 U.S. 539 (1976).
\33\Estes v. Texas, 381 U.S. 532 (1965). Cf. Nixon v. Warner
Communications, 435 U.S. 589, 610 (1978).
\34\Chandler v. Florida, 449 U.S. 560 (1981).
The Court has borrowed from First Amendment cases in protecting
the right to a public trial. Closure of trials or pretrial proceedings
over the objection of the accused may be justified only if the state can
show ``an overriding interest based on findings that closure is
essential to preserve higher values and is narrowly tailored to serve
that interest.''\35\ In Waller v. Georgia,\36\ the Court held that an
accused's Sixth Amendment rights had been violated by closure of all 7
days of a suppression hearing in order to protect persons whose phone
conversations had been taped, when less than 21/2 hours of the
hearing had been devoted to playing the tapes. The need for openness at
suppression hearings ``may be particularly strong,'' the Court
indicated, due to the fact that the conduct of police and prosecutor is
often at issue.\37\ However, an accused's Sixth Amendment-based request
for closure must meet the same stringent test applied to governmental
requests to close proceedings: there must be ``specific findings . . .
demonstrating that first, there is a substantial probability that the
defendant's right to a fair trial will be prejudiced by publicity that
closure would prevent, and second, reasonable alternatives to closure
cannot adequately protect the defendant's fair trial rights.''\38\
\35\Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510
(1984) (Press-Enterprise I).
\36\467 U.S. 39 (1984).
\37\Waller v. Georgia, 467 U.S. 39, 47 (1984) (indicating that
the Press-Enterprise I standard governs such 6th Amendment cases).
\38\Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14
(1986) (Press-Enterprise II).
The Sixth Amendment guarantee is apparently a personal right of
the defendant, which he may in some circumstances waive in conjunction
with the prosecution and the court.\39\ The First Amendment, however,
has been held to protect public and press ac
cess to trials in all but the most extraordinary circumstances,\40\
hence a defendant's request for closure of his trial must be balanced
against the public and press right of access. Before such a request for
closure will be honored, there must be ``specific findings . . .
demonstrating that first, there is a substantial probability that the
defendant's right to a fair trial will be prejudiced by publicity that
closure would prevent, and second, reasonable alternatives to closure
cannot adequately protect the defendant's fair trial rights.''\41\
\39\Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
\40\Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). See also Gannett
Co. v. DePasquale, 443 U.S. 368, 397 (1979) (Justice Powell concurring).
\41\Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).
See First Amendment discussion supra pp.1105-08.
RIGHT TO TRIAL BY IMPARTIAL JURY
By the time the United States Constitution and the Bill of
Rights were drafted and ratified, the institution of trial by jury was
almost universally revered, so revered that its history had been traced
back to Magna Carta.\42\ The jury began in the form of a grand or
presentment jury with the role of inquest and was started by Frankish
conquerors to discover the King's rights. Henry II regularized this type
of proceeding to establish royal control over the machinery of justice,
first in civil trials and then in criminal trials. Trial by petit jury
was not employed at least until the reign of Henry III, in which the
jury was first essentially a body of witnesses, called for their
knowledge of the case; not until the reign of Henry VI did it become the
trier of evidence. It was during the Seventeenth Century that the jury
emerged as a safeguard for the criminally accused.\43\ Thus, in the
Eighteenth Century, Blackstone could commemorate the institution as part
of a ``strong and 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.''\44\ The right was guaranteed in the constitutions of
the original 13 States, was guaranteed in the body of the Constitu
tion\45\ and in the Sixth Amendment, and the constitution of every State
entering the Union thereafter in one form or another protected the right
to jury trial in criminal cases.\46\ ``Those who emigrated to this
country from England brought with them this great privilege `as their
birthright and inheritance, as a part of that admirable common law which
had fenced around and interposed barriers on every side against the
approaches of arbitrary power.'''\47\
\42\Historians no longer accept this attribution. Thayer, The
Jury and Its Development, 5 Harv. L. Rev. 249, 265 (1892), and the Court
has noted this. Duncan v. Louisiana, 391 U.S. 145, 151 n.16 (1968).
\43\W. Forsyth, History of Trial by Jury (London: 1852).
\44\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.
\45\In Art III, Sec. 2.
\46\Duncan v. Louisiana, 391 U.S. 145, 153 (1968).
\47\Thompson v. Utah, 170 U.S. 343, 349-50 (1898), quoting 3 J.
Story, Commentaries on the Constitution of the United States 1773
``The guarantees of jury trial in the Federal and State
Constitutions reflect a profound judgment about the way in which law
should be enforced and justice administered. A right to jury trial is
granted to criminal defendants in order to prevent oppression by the
Government. Those who wrote our constitutions knew from history and
experience that it was necessary to protect against unfounded criminal
charges brought to eliminate enemies and against judges too responsive
to the voice of higher authority. The framers of the constitutions
strove to create an independent judiciary but insisted upon further
protection against arbitrary action. Providing an accused with the right
to be tried by a jury of his peers gave him an inestimable safeguard
against the corrupt overzealous prosecutor and against the compliant,
biased, or eccentric judge. . . . [T]he jury trial provisions . . .
reflect a fundamental decision about the exercise of official power--a
reluctance to entrust plenary powers over the life and liberty of the
citizen to one judge or to a group of judges. Fear of unchecked power
. . . found expression in the criminal law in this insistence upon
community participation in the determination of guilt or
\48\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). While federal judges
may comment upon the evidence, the right to a jury trial means that the
judge must make clear to the jurors that such remarks are advisory only
and that the jury is the final determiner of all factual questions.
Quercia v. United States, 289 U.S. 466 (1933).
Because ``a general grant of jury trial for serious offenses is
a fundamental right, essential for preventing miscarriages of justice
and for assuring that fair trials are provided for all defendants,'' the
Sixth Amendment provision is binding on the States through the due
process clause of the Fourteenth Amendment.\49\ But inasmuch as it
cannot be said that every criminal trial or any particular trial which
is held without a jury is unfair,\50\ it is possible for
a defendant to waive the right and go to trial before a judge alone.\51\
\49\Duncan v. Louisiana, 391 U.S. 145, 158-59 (1968).
\50\Id. at 159. Thus, state trials conducted before Duncan was
decided were held to be valid still. DeStefano v. Woods, 392 U.S. 631
\51\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 ``needlessly'' to waive or to penalize the
decision to go to the jury, but the standards here are unclear. Compare
United States v. Jackson, 390 U.S. 570 (1968), with Brady v. United
States, 397 U.S. 742 (1970), and McMann v. Richardson, 397 U.S. 759
(1970), and see also State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1971),
cert. denied, 408 U.S. 942 (1972).
The Attributes of the Jury.--It was previously the position of
the Court that the right to a jury trial meant ``a trial by jury as
understood and applied at common law, and includes all the essential
elements as they were recognized in this country and England when the
Constitution was adopted.''\52\ It had therefore been held that this
included trial by a jury of 12 persons\53\ who must reach a unanimous
verdict\54\ and that the jury trial must be held during the first court
proceeding and not de novo at the first appellate stage.\55\ However, as
it extended the guarantee to the States, the Court indicated that at
least some of these standards were open to re-examination,\56\ and in
subsequent cases it has done so. In Williams v. Florida,\57\ the Court
held that the fixing of jury size at 12 was ``a historical accident''
which, while firmly established when the Sixth Amendment was proposed
and ratified, was not required as an attribute of the jury system,
either as a matter of
common-law background\58\ or by any ascertainment of the intent of the
framers.\59\ Being bound neither by history nor framers' intent, the
Court thought the ``relevant inquiry . . . must be the function that the
particular feature performs and its relation to the purposes of the jury
trial.'' The size of the jury, the Court continued, bore no discernable
relationship to the purposes of jury trial--the prevention of oppression
and the reliability of factfinding. Furthermore, there was little reason
to believe that any great advantage accrued to the defendant by having a
jury composed of 12 rather than six, which was the number at issue in
the case, or that the larger number appreciably increased the variety of
viewpoints on the jury. A jury should be large enough to promote group
deliberation, free from outside attempts at intimidation, and to provide
a fair possibility that a cross-section of the community will be
represented on it, but the Court did not speculate whether there was a
minimum permissible size and it recognized the propriety of conditioning
jury size on the seriousness of the offense.\60\
\52\Patton v. United States, 281 U.S. 276, 288 (1930).
\53\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).
\54\Andres v. United States, 333 U.S. 740 (1948). See dicta in
Maxwell v. Dow, 176 U.S. 581, 586 (1900); Patton v. United States, 281
U.S. 276, 288 (1930).
\55\Callan v. Wilson, 127 U.S. 540 (1888). Preserving Callan, as
being based on Article II, Sec. 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).
\56\Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968);
DeStefano v. Woods, 392 U.S. 631, 632-33 (1968).
\57\399 U.S. 78 (1970). Justice Marshall would have required
juries of 12 in both federal and state courts, id. at 116, while Justice
Harlan contended that the Sixth Amendment required juries of 12,
although his view of the due process standard was that the requirement
was not imposed on the States. Id. at 117.
\58\The development of 12 as the jury size is traced in
Williams, 399 U.S. at 86-92.
\59\Id. at 92-99. While the historical materials were scanty,
the Court thought it more likely than not that the framers of the Bill
of Rights did not intend to incorporate into the word ``jury'' all its
common-law attributes. This conclusion was drawn from the extended
dispute between House and Senate over inclusion of a ``vicinage''
requirement in the clause, which was a common law attribute, and the
elimination of language attaching to jury trials their ``accustomed
requisites.'' But see id. at 123 n.9 (Justice Harlan).
\60\Id. at 99-103. In Ballew v. Georgia, 435 U.S. 223 (1978),
the Court unanimously, but with varying expressions of opinion, held
that conviction by a unanimous five-person jury in a trial for a
nonpetty offense deprived an accused of his right to trial by jury.
While readily admitting that the line between six and five members is
not easy to justify, the Justices believed that reducing a jury to five
persons in nonpetty cases raised substantial doubts as to the fairness
of the proceeding and proper functioning of the jury to warrant drawing
the line at six.
When the unanimity rule was reconsidered, the division of the
Justices was such that different results were reached for state and
federal courts.\61\ Applying the same type of analysis as that used in
Williams, four Justices acknowledged that unanimity was a common-law
rule but observed for the reasons reviewed in Williams that it seemed
more likely than not that the framers of the Sixth Amendment had not
intended to preserve the requirement within the term ``jury.''
Therefore, the Justices undertook a functional
analysis of the jury and could not discern that the requirement of
unanimity materially affected the role of the jury as a barrier against
oppression and as a guarantee of a commonsense judgment of laymen. The
Justices also determined that the unanimity requirement is not
implicated in the constitutional requirement of proof beyond a
reasonable doubt, and is not necessary to preserve the feature of the
requisite cross-section representation on the jury.\62\ Four dissenting
Justices thought that omitting the unanimity requirement would undermine
the reasonable doubt standard, would permit a majority of jurors simply
to ignore those interpreting the facts differently, and would permit
oppression of dissenting minorities.\63\ Justice Powell, on the other
hand, thought that unanimity was mandated in federal trials by history
and precedent and that it should not be departed from; however, because
it was the due process clause of the Fourteenth Amendment which imposed
the basic jury-trial requirement on the States, he did not believe that
it was necessary to impose all the attributes of a federal jury on the
States. He therefore concurred in permitting less-than-unanimous
verdicts in state courts.\64\
\61\Apodaca v. Oregon, 406 U.S. 404 (1972), involved a trial
held after decision in Duncan v. Louisiana, 391 U.S. 145 (1968), and
thus concerned whether the Sixth Amendment itself required jury
unanimity, while Johnson v. Louisiana, 406 U.S. 356 (1972), involved a
pre-Duncan trial and thus raised the question whether due process
required jury unanimity. Johnson held, five-to-four, that the due
process requirement of proof of guilt beyond a reasonable doubt was not
violated by a conviction on a nine-to-three jury vote in a case in which
punishment was necessarily at hard labor.
\62\Apodaca v. Oregon, 406 U.S. 404 (1972) (Justices White,
Blackmun, and Rehnquist, and Chief Justice Burger). Justice Blackmun
indicated a doubt that any closer division than nine-to-three in jury
decisions would be permissible. Id. at 365.
\63\Id. at 414, and Johnson v. Louisiana, 406 U.S. 356, 380,
395, 397, 399 (1972) (Justices Douglas, Brennan, Stewart, and Marshall).
\64\Id. at 366. Burch v. Louisiana, 441 U.S. 130 (1979),
however, held that conviction by a non-unanimous six-person jury in a
state criminal trial for a nonpetty offense, under a provision
permitting conviction by five out of six jurors, violated the right of
the accused to trial by jury. Acknowledging that the issue was ``close''
and that no bright line illuminated the boundary between permissible and
impermissible, the Court thought the near-uniform practice throughout
the Nation of requiring unanimity in six-member juries required
nullification of the state policy. See also Brown v. Louisiana, 447 U.S.
323 (1980) (Burch held retroactive).
Criminal Proceedings to Which the Guarantee Applies.--Although
the Sixth Amendment provision does not differentiate among types of
criminal proceedings in which the right to a jury trial is or is not
present, the Court has always excluded petty offenses from the guarantee
in federal courts, defining the line between petty and serious offenses
either by the maximum punishment available\65\ or by the nature of the
offense.\66\ This line has been adhered to in the application of the
Sixth Amendment to the States\67\ and the Court has now held ``that no
offense can be deemed `petty' for purposes of the right to trial by jury
prisonment for more than six months is authorized.''\68\ The Court has
also made some changes in the meaning attached to the term ``criminal
proceeding.'' Previously, it had been applied only to situations in
which a person has been accused of an offense by information or
presentment.\69\ Thus, a civil action to collect statutory penalties and
punitive damages, because not technically criminal, has been held to
implicate no right to jury trial.\70\ But more recently the Court has
held denationalization to be punishment which Congress may not impose
without adhering to the guarantees of the Fifth and Sixth
Amendments,\71\ and the same type of analysis could be used with regard
to other sanctions. In a long line of cases, the Court had held that no
constitutional right to jury trial existed in trials of criminal
contempt.\72\ But in Bloom v. Illinois,\73\ the Court announced that
``[o]ur deliberations have convinced us . . . that serious contempts are
so nearly like other serious crimes that they are subject to the jury
trial provisions of the Constitution . . . and that the traditional rule
is constitutionally infirm insofar as it permits other than petty
contempts to be tried without honoring a demand for a jury trial.'' At
least in state systems and probably in the federal system as well, there
is no constitutional right
to a jury trial in juvenile proceedings.\74\ In capital cases there is
no requirement that a jury impose the death penalty\75\ or make the
factual findings upon which a death sentence must rest.\76\
\65\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
\66\District of Columbia v. Colts, 282 U.S. 63 (1930).
\67\Duncan v. Louisiana, 391 U.S. 145, 159-62 (1968); Dyke v.
Taylor Implement Mfg. Co., 391 U.S. 216 (1968).
\68\Baldwin v. New York, 399 U.S. 66, 69 (1970). Justices Black
and Douglas would have required a jury trial in all criminal proceedings
in which the sanction imposed bears the indicia of criminal punishment.
Id. at 74 (concurring); Cheff v. Schnackenberg, 384 U.S. 373, 384, 386
(1966) (dissenting). Chief Justice Burger and Justices Harlan and
Stewart objected to setting this limitation at six months for the
States, preferring to give them greater leeway. Baldwin, supra, at 76;
Williams v. Florida, 399 U.S. 78, 117, 143 (1970) (dissenting). No jury
trial was required when the trial judge suspended sentence and placed
defendant on probation for three years. Frank v. United States, 395 U.S.
147 (1969). There is a presumption that offenses carrying a maximum
imprisonment of six months or less are ``petty,'' although it is
possible that such an offense could be pushed into the ``serious''
category if the legislature tacks on onerous penalties not involving
incarceration. No jury trial is required, however, when the maximum
sentence is six months in jail, a fine not to exceed $1,000, a 90-day
driver's license suspension, and attendance at an alcohol abuse
education course. Blanton v. City of North Las Vegas, 489 U.S. 538, 542-
\69\United States v. Zucker, 161 U.S. 475, 481 (1896).
\70\Id. See also Oceanic Steam Navigation Co. v. Stranahan, 214
U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909).
\71\Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
\72\E.g., Green v. United States, 356 U.S. 165, 183-87 (1958),
and cases cited; United States v. Burnett, 376 U.S. 681, 692-700 (1964),
and cases cited. A Court plurality in Cheff v. Schnackenberg, 384 U.S.
373 (1966), held, asserting the Court's supervisory power over the lower
federal courts, that criminal contempt sentences in excess of six months
imprisonment could not be imposed without a jury trial or adequate
\73\391 U.S. 194, 198 (1968). Justices Harlan and Stewart
dissented. Id. at 215. As in other cases, the Court drew the line
between serious and petty offenses at six months, but because, unlike
other offenses, no maximum punishments are usually provided for
contempts it indicated the actual penalty imposed should be looked to.
Id. at 211. And see Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216
\74\McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
\75\Spaziano v. Florida, 468 U.S. 447, 459 (1984).
\76\Hildwin v. Florida, 490 U.S. 638, 640-41 (1989) (per curiam)
(``the Sixth Amendment does not require that the specific findings
authorizing the imposition of the sentence of death be made by the
jury''); Clemons v. Mississippi, 494 U.S. 738 (1990) (appellate court
may reweigh aggravating and mitigating factors and uphold imposition of
death penalty even though jury relied on an invalid aggravating factor);
Walton v. Arizona, 497 U.S. 639 (1990) (judge may make requisite
findings as to existence of aggravating and mitigating circumstances).
Impartiality as a principle of the right to trial by jury is
served not only by the Sixth Amendment, which is as applicable to the
States as to the Federal Government,\77\ but as well by the due process
and equal protection clauses of the Fourteenth,\78\ and perhaps the due
process clause of the Fifth Amendment, and the Court's supervisory power
has been directed to the issue in the federal system.\79\ Prior to the
Court's extension of a right to jury trials in state courts, it was
firmly established that if a State chose to provide juries they must be
\77\Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379
U.S. 466 (1965); Parker v. Gladden, 385 U.S. 363 (1966); Witherspoon v.
Illinois, 391 U.S. 510 (1968); Gonzales v. Beto, 405 U.S. 1052 (1972).
\78\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 African American, Peters v.
Kiff, 407 U.S. 493 (1972), and exclusion of potential jurors because of
their national ancestry is unconstitutional, at least where defendant is
of that ancestry as well, Hernandez v. Texas, 347 U.S. 475 (1954);
Castaneda v. Partida, 430 U.S. 482 (1977).
\79\In the exercise of its supervisory power over the federal
courts, the Court has permitted any defendant to challenge the arbitrary
exclusion from jury service of his own or any other class. Glasser v.
United States, 315 U.S. 60, 83-87 (1942); Thiel v. Southern Pacific Co.,
328 U.S. 217, 220 (1946); Ballard v. United States, 329 U.S. 187 (1946).
In Taylor v. Louisiana, 419 U.S. 522 (1975), and Duren v. Missouri, 439
U.S. 357 (1979), male defendants were permitted to challenge the
exclusion of women as a Sixth Amendment violation.
\80\Turner v. Louisiana, 379 U.S. 466 (1965).
Impartiality is a two-fold requirement. First, ``the selection
of a petit jury from a representative cross section of the community is
an essential component of the Sixth Amendment.''\81\ This re
quirement applies only to jury panels or venires from which petit juries
are chosen, and not to the composition of the petit juries
themselves.\82\ ``In order to establish a prima facie violation of the
fair-cross-section requirement, the defendant must show (1) that the
group alleged to be excluded is a `distinctive' group in the community;
(2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of
such persons in the community; and (3) that this underrepresentation is
due to systematic exclusion of the group in the jury-selection
process.''\83\ Thus, in one case the Court voided a selection system
under which no woman would be called for jury duty unless she had
previously filed a written declaration of her desire to be subject to
service, and, in another it invalidated a state selection system
granting women who so requested an automatic exemption from jury
service.\84\ While disproportion alone is insufficient to establish a
prima facie showing of unlawful exclusion, a statistical showing of
disparity combined with a demonstration of the easy manipulability of
the selection process can make out a prima facie case.\85\
\81\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 jury
trial provision and its fair cross section requirement to the States,
the opinions in these cases must be considered tenuous, but the Court
has reiterated that defendants are not entitled to a jury of any
particular composition. Taylor, supra, at 538. Congress has implemented
the constitutional requirement by statute in federal courts by the
Federal Jury Selection and Service Act of 1968, Pub. L. No. 90-274, 82
Stat. 53, 28 U.S.C. Sec. Sec. 1861 et seq.
\82\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).
\83\Duren v. Missouri, 439 U.S. 357, 364 (1979).
\84\Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri,
439 U.S. 357 (1979).
\85\Castaneda v. Partida, 430 U.S. 482 (1977) (Mexican-American
defendant successfully made out prima facie case of intentional
exclusion of persons of his ethnic background by showing a substantial
underrepresentation of Mexican-Americans based on a comparison of the
group's proportion in the total population of eligible jurors to the
proportion called, and this in the face of the fact that Mexican-
Americans controlled the selection process).
Second, there must be assurance that the jurors chosen are
unbiased, i.e., willing to decide the case on the basis of the evidence
presented. The Court has held that in the absence of an actual showing
of bias, a defendant in the District of Columbia is not denied an
impartial jury when he is tried before a jury composed primarily of
government employees.\86\ A violation of a defendant's
right to an impartial jury does occur, however, when the jury or any of
its members is subjected to pressure or influence which could impair
freedom of action; the trial judge should conduct a hearing in which the
defense participates to determine whether impartiality has been
undermined.\87\ Exposure of the jury to possibly prejudicial material
and disorderly courtroom activities may deny impartiality and must be
inquired into.\88\ Private communications, contact, or tampering with a
jury, or the creation of circumstances raising the dangers thereof, is
not to be condoned.\89\ When the locality of the trial has been
saturated with publicity about a defendant, so that it is unlikely that
he can obtain a disinterested jury, he is constitutionally entitled to a
change of venue.\90\ It is undeniably a violation of due process to
subject a defendant to trial in an atmosphere of mob or threatened mob
\86\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, 212 U.S. 183 (1909), disqualified such
employees, but a statute removing the disqualification because of the
increasing difficulty in finding jurors in the District of Columbia was
sustained in United States v. Wood, 299 U.S. 123 (1936).
\87\Remmer v. United States, 350 U.S. 377 (1956) (attempted
bribe of a juror reported by him to authorities); Smith v. Phillips, 455
U.S. 209 (1982) (during trial one of the jurors had been actively
seeking employment in the District Attorney's office).
\88\E.g., Irvin v. Dowd, 366 U.S. 717 (1961); Sheppard v.
Maxwell, 384 U.S. 333 (1966). Exposure of the jurors to knowledge about
the defendant's prior criminal record and activities is not alone
sufficient to establish a presumption of reversible prejudice, but on
voir dire jurors should be questioned about their ability to judge
impartially. Murphy v. Florida, 421 U.S. 794 (1975). The Court indicated
that under the same circumstances in a federal trial it would have
overturned the conviction pursuant to its supervisory power. Id. at 797-
98, citing Marshall v. United States, 360 U.S. 310 (1959). Essentially,
the defendant must make a showing of prejudice which the court then may
inquire into. Chandler v. Florida, 449 U.S. 560, 575, 581 (1981); Smith
v. Phillips, 455 U.S. 209, 215-18 (1982); Patton v. Yount, 467 U.S. 1025
\89\Remmer v. United States, 347 U.S. 227 (1954). See Turner v.
Louisiana, 379 U.S. 466 (1965) (placing jury in charge of two deputy
sheriffs who were principal prosecution witnesses at defendant's jury
trial denied him his right to an impartial jury); Parker v. Gladden, 385
U.S. 363 (1966) (influence on jury by prejudiced bailiff). Cf. Gonzales
v. Beto, 405 U.S. 1052 (1972).
\90\Irvin v. Dowd, 366 U.S. 717 (1961) (felony); Groppi v.
Wisconsin, 400 U.S. 505 (1971) (misdemeanor).
\91\Frank v. Mangum, 237 U.S. 309 (1915); Irvin v. Dowd, 366
U.S. 717 (1961); Sheppard v. Maxwell, 384 U.S. 333 (1966).
Because it is too much to expect that jurors can remain
uninfluenced by evidence they receive even though they are instructed to
use it for only a limited purpose and to disregard it for other
purposes, the Court will not permit a confession to be submitted to the
jury without a prior determination by the trial judge that it is
admissible. A defendant is denied due process, therefore, if he is
convicted by a jury that has been instructed to first determine the
voluntariness of a confession and then to disregard the confession if it
is found to be inadmissible.\92\ Similarly invalid is a jury instruction
in a joint trial to consider a confession only with regard
to the defendant against whom it is admissible, and to disregard that
confession as against a co-defendant which it implicates.\93\
\92\Jackson v. Denno, 378 U.S. 368 (1964) (overruling Stein v.
New York, 346 U.S. 156 (1953)).
\93\Bruton v. United States, 391 U.S. 123 (1968) (overruling
Delli Paoli v. United States, 352 U.S. 232 (1957)). The rule applies to
the States. Roberts v. Russell, 392 U.S. 293 (1968). But see Nelson v.
O'Neil, 402 U.S. 622 (1971) (co-defendant's out-of-court statement is
admissible against defendant if co-defendant takes the stand and denies
having made the statement).
In Witherspoon v. Illinois,\94\ the Court held that the
exclusion in capital cases of jurors conscientiously scrupled about
capital punishment, without inquiring whether they could consider the
imposition of the death penalty in the appropriate case, violated a
defendant's constitutional right to an impartial jury. Inasmuch as the
jury is given broad discretion whether or not to fix the penalty at
death, the Court ruled, the jurors must reflect ``the conscience of the
community'' on the issue, and the automatic exclusion of all scrupled
jurors ``stacked the deck'' and made of the jury a tribunal ``organized
to return a verdict of death.''\95\ A court may not refuse a defendant's
request to examine potential jurors to determine whether they would vote
automatically to impose the death penalty; general questions about
fairness and willingness to follow the law are inadequate.\96\
\94\391 U.S. 510 (1968).
\95\Id. at 519, 521, 523. The Court thought the problem went
only to the issue of the sentence imposed and saw no evidence that a
jury from which death scrupled persons had been excluded was more prone
to convict than were juries on which such person sat. Cf. Bumper v.
North Carolina, 391 U.S. 543, 545 (1968). The Witherspoon case was given
added significance when in Woodson v. North Carolina, 428 U.S. 280
(1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), the Court held
mandatory death sentences unconstitutional and ruled that the jury as a
representative of community mores must make the determination as guided
by legislative standards. See also Adams v. Texas, 448 U.S. 38 (1980)
(holding Witherspoon applicable to bifurcated capital sentencing
procedures and voiding a statute permitting exclusion of any juror
unable to swear that the existence of the death penalty would not affect
his deliberations on any issue of fact).
\96\Morgan v. Illinois, 112 S. Ct. 2222 (1992).
The proper standard for exclusion is ``whether the juror's views
would `prevent or substantially impair the performance of his duties as
a juror in accordance with his instructions and his oath.'''\97\ Thus
the juror need not indicate that he would ``automatically'' vote against
the death penalty, and his ``bias [need not] be proved with
`unmistakable clarity.'''\98\ Persons properly excludable under
Witherspoon may also be excluded from the guilt/innocence phase of a
bifurcated capital trial.\99\ It had been argued that to exclude such
persons from the guilt/innocence phase would result in a jury
somewhat more predisposed to convict, and that this would deny the
defendant a jury chosen from a fair cross-section. The Court rejected
this, concluding that ``it is simply not possible to define jury
impartiality . . . by reference to some hypothetical mix of individual
viewpoints.''\100\ Moreover, the state has ``an entirely proper interest
in obtaining a single jury that could impartially decide all of the
issues in [a] case,'' and need not select separate panels and duplicate
evidence for the two distinct but interrelated functions.\101\ For the
same reasons, there is no violation of the right to an impartial jury if
a defendant for whom capital charges have been dropped is tried, along
with a codefendant still facing capital charges, before a ``death
\97\Wainwright v. Witt, 469 U.S. 412, 424 (1985), (quoting Adams
v. Texas, 448 U.S. 38, 45 (1980)).
\98\Wainwright v. Witt, 469 U.S. at 424. Accord, Darden v.
Wainwright, 477 U.S. 168 (appropriateness of exclusion should be
determined by context, including excluded juror's understanding based on
previous questioning of other jurors).
\99\Lockhart v. McCree, 476 U.S. 162 (1986).
\100\476 U.S. at 183.
\101\Id. at 180.
\102\Buchanan v. Kentucky, 483 U.S. 402 (1987).
Exclusion of one juror qualified under Witherspoon constitutes
reversible error, and the exclusion may not be subjected to harmless
error analysis.\103\ However, a court's error in refusing to dismiss for
cause a prospective juror prejudiced in favor of the death penalty does
not deprive a defendant of his right to trial by an impartial jury if he
is able to exclude the juror through exercise of a peremptory
challenge.\104\ The relevant inquiry is ``on the jurors who ultimately
sat,'' the Court declared, rejecting as overly broad the assertion in
Gray that the focus instead should be on ```whether the composition of
the jury panel as a whole could have been affected by the trial court's
\103\Gray v. Mississippi, 481 U.S. 648 (1987).
\104\Ross v. Oklahoma, 487 U.S. 81 (1987).
\105\Id. at 86, 87.
It is the function of the voir dire to give the defense and the
prosecution the opportunity to inquire into, or have the trial judge
inquire into, possible grounds of bias or prejudice that potential
jurors may have, and to acquaint the parties with the potential
jurors.\106\ It is good ground for challenge for cause that a juror has
formed an opinion on the issue to be tried, but not every opinion which
a juror may entertain necessarily disqualifies him. The judge must
determine whether the nature and strength of the opinion raise a
presumption against impartiality.\107\ It suffices for the judge to
question potential jurors about their ability to put aside what they had
heard or read about the case, listen to the evidence with an open mind,
and render an impartial verdict; the judge's refusal to go further and
question jurors about the contents of news
reports to which they had been exposed did not violate the Sixth
Amendment.\108\ Under some circumstances, it may be constitutionally
required that questions specifically directed to the existence of racial
bias must be asked. Thus, in a situation in which defendant, a black
man, alleged that he was being prosecuted on false charges because of
his civil rights activities in an atmosphere perhaps open to racial
appeals, prospective jurors must be asked about their racial prejudice,
if any.\109\ A similar rule applies in some capital trials, where the
risk of racial prejudice ``is especially serious in light of the
complete finality of the death sentence.'' A defendant accused of an
interracial capital offense is entitled to have prospective jurors
informed of the victim's race and questioned as to racial bias.\110\ But
in circumstances not suggesting a significant likelihood of racial
prejudice infecting a trial, as when the facts are merely that the
defendant is black and the victim white, the Constitution is satisfied
by a more generalized but thorough inquiry into the impartiality of the
\106\Lewis v. United States, 146 U.S. 370 (1892); Pointer v.
United States, 151 U.S. 396 (1894).
\107\Reynolds v. United States, 98 U.S. 145 (1879). See
Witherspoon v. Illinois, 391 U.S. 510, 513-15, 522 n.21 (1968).
\108\Mu'Min v. Virginia, 500 U.S. 415 (1991).
\109\Ham v. South Carolina, 409 U.S. 524 (1973).
\110\Turner v. Murray, 476 U.S. 28 (1986). The quote is from a
section of Justice White's opinion not adopted as opinion of the Court.
Id. at 35.
\111\Ristaino v. Ross, 424 U.S. 589 (1976). The Court noted that
under its supervisory power it would require a federal court faced with
the same circumstances to propound appropriate questions to identify
racial prejudice if requested by the defendant. Id. at 597 n.9. See
Aldridge v. United States, 283 U.S. 308 (1931). But see Rosales-Lopez v.
United States, 451 U.S. 182 (1981), in which the trial judge refused a
defense request to inquire about possible bias against Mexicans. A
plurality apparently adopted a rule that, all else being equal, the
judge should necessarily inquire about racial or ethnic prejudice only
in cases of violent crimes in which the defendant and victim are members
of different racial or ethnic groups, id. at 192, a rule rejected by two
concurring Justices. Id. at 194. Three dissenting Justices thought the
judge must always ask when defendant so requested. Id. at 195.
Although government is not constitutionally obligated to allow
peremptory challenges, typically a system of peremptory challenges has
existed in criminal trials, in which both prosecution and defense may,
without stating any reason, excuse a certain number of prospective
jurors.\112\ While, in Swain v. Alabama,\113\ the Court held that a
prosecutor's purposeful exclusion of members of a specific racial group
from the jury would violate the Equal Protection Clause, it posited so
difficult a standard of proof that defendants could seldom succeed. The
Swain standard of proof was relaxed in Batson v. Kentucky,\114\ with the
result that a defendant may now establish an equal protection violation
resulting from a prosecutor's
use of peremptory challenges to systematically exclude blacks from the
jury.\115\ A violation can occur whether or not the defendant and the
excluded jurors are of the same race.\116\ Racially discriminatory use
of peremptory challenges does not, however, constitute a violation of
the Sixth Amendment, the Court ruled in Holland v. Illinois.\117\ The
Sixth Amendment ``no more forbids the prosecutor to strike jurors on the
basis of race than it forbids him to strike them on the basis of
innumerable other generalized characteristics.''\118\ To rule otherwise,
the Court reasoned, ``would cripple the device of peremptory challenge''
and thereby undermine the Amendment's goal of ``impartiality with
respect to both contestants.''\119\
\112\Cf. Stilson v. United States, 250 U.S. 583, 586 (1919), an
older case holding that it is no violation of the guarantee to limit the
number of peremptory challenges to each defendant in a multi-party
\113\380 U.S. 202 (1965).
\114\476 U.S. 79 (1986).
\115\See discussion under ``Equal Protection and Race,'' infra
\116\Powers v. Ohio, 499 U.S. 400 (1991) (defendant has standing
to raise equal protection rights of excluded juror of different race).
\117\493 U.S. 474 (1990). But see Trevino v. Texas, 112 S. Ct.
1547 (1992) (claim of Sixth Amendment violation resulting from racially
discriminatory use of peremptory challenges treated as sufficient to
raise equal protection claim under Swain and Batson).
\118\493 U.S. at 487.
\119\Id. at 484. As a consequence, a defendant who uses a
peremptory challenge to correct the court's error in denying a for-cause
challenge may have no Sixth Amendment cause of action. Peremptory
challenges ``are a means to achieve the end of an impartial jury. So
long as the jury that sits is impartial, the fact that the defendant had
to use a peremptory challenge to achieve that result does not mean the
Sixth Amendment was violated.'' Ross v. Oklahoma, 487 U.S. 81, 88
(1987). Similarly, there is no due process violation, at least where
state statutory law requires use of peremptory challenges to cure
erroneous refusals by the court to excuse jurors for cause. ``It is for
the State to determine the number of peremptory challenges allowed and
to define their purpose and the manner of their exercise.'' Id.
The restraint on racially discriminatory use of peremptory
challenges is now a two-way street. The Court ruled in 1992 that a
criminal defendant's use of peremptory challenges to exclude jurors on
the basis of race constitutes ``state action'' in violation of the Equal
Protection Clause.\120\ Disputing the contention that this limitation
would undermine ``the contribution of the peremptory challenge to the
administration of justice,'' the Court nonetheless asserted that such a
result would in any event be ``too high'' a price to pay. ``It is an
affront to justice to argue that a fair trail includes the right to
discriminate against a group of citizens based upon their race.''\121\
It followed, therefore, that the limitation on peremptory challenges
does not violate a defendant's right to an impartial jury. While a
defendant has ``the right to an impartial jury that can view him without
racial animus,'' this means that ``there should be a mechanism for
removing those [jurors] who would be incapable of confronting and
suppressing their racism,'' not that the defendant may remove jurors on
the basis of race or racial stereotypes.\122\
\120\Georgia v. McCollum, 112 S. Ct. 2348 (1992).
\121\Id. at 2358.
\122\Id. at 2358-59.
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
PLACE OF TRIAL--JURY OF THE VICINAGE
Article III, Sec. 2 requires that federal criminal cases be
tried by jury in the State and district in which the offense was
committed,\123\ but much criticism arose over the absence of any
guarantee that the jury be drawn from the ``vicinage'' or neighborhood
of the crime.\124\ Madison's efforts to write into the Bill of Rights an
express vicinage provision were rebuffed by the Senate, and the present
language was adopted as a compromise.\125\ The provisions limit the
Federal Government only.\126\
\123\``The Trial of all Crimes, except in Cases of Impeachment,
shall be by Jury; and such Trial shall be held in the State where the
said Crime shall have been committed; but when not committed within any
State, the Trial shall be at such Place or Places as the Congress may by
law have directed.''
\124\``Vicinage'' means neighborhood, and ``vicinage of the
jury'' means jury of the neighborhood or, in medieval England, jury of
the County. 4 W. Blackstone, Commentaries on the Laws of England *350-
351 (T. Cooley 4th ed. 1899). See 3 J. Story, Commentaries on the
Constitution of the United States 1775-85 (1833).
\125\The controversy is conveniently summarized in Williams v.
Florida, 399 U.S. 78, 92-96 (1970).
\126\Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96, 101
An accused cannot be tried in one district under an indictment
showing that the offense was committed in another;\127\ the place where
the offense is charged to have been committed determines the place of
trial.\128\ In a prosecution for conspiracy, the accused may be tried in
any State and district where an overt act was performed.\129\ Where a
United States Senator was indicted for agreeing to receive compensation
for services to be rendered in a proceeding before a government
department, and it appeared that a tentative arrangement for such
services was made in Illinois and confirmed in St. Louis, the defendant
was properly tried in St. Louis, although he was not physically present
in Missouri when notice of ratification was dispatched.\130\ The offense
of obtaining transportation of property in interstate commerce at less
than the carrier's published rates,\131\ or the sending of excluded
matter through the mails,\132\ may be made triable in any district
through which the forbidden transportation is conducted. By virtue of a
presumption that a letter is delivered in the district to which it is
addressed, the offense of scheming to defraud a corporation by mail
was held to have been committed in that district although the letter was
posted elsewhere.\133\ The Constitution does not require any preliminary
hearing before issuance of a warrant for removal of an accused to the
court having jurisdiction of the charge.\134\ The assignment of a
district judge from one district to another, conformably to statute,
does not create a new judicial district whose boundaries are undefined
nor subject the accused to trial in a district not established when the
offense with which he is charged was committed.\135\ For offenses
against federal laws not committed within any State, Congress has the
sole power to prescribe the place of trial; such an offense is not local
and may be tried at such place as Congress may designate.\136\ The place
of trial may be designated by statute after the offense has been
\127\Salinger v. Loisel, 265 U.S. 224 (1924).
\128\Beavers v. Henkel, 194 U.S. 73, 83 (1904). For some more
recent controversies about the place of the commission of the offense,
see United States v. Cores, 356 U.S. 405 (1958), and Johnston v. United
States, 351 U.S. 215 (1956).
\129\Brown v. Elliott, 225 U.S. 392 (1912); Hyde v. United
States, 225 U.S. 347 (1912); Haas v. Henkel, 216 U.S. 462 (1910).
\130\Burton v. United States, 202 U.S. 344 (1906).
\131\Armour Packing Co. v. United States, 209 U.S. 56 (1908).
\132\United States v. Johnson, 323 U.S. 273, 274 (1944).
\133\Hagner v. United States, 285 U.S. 427, 429 (1932).
\134\United States ex rel. Hughes v. Gault, 271 U.S. 142 (1926).
Cf. Tinsley v. Treat, 205 U.S. 20 (1907); Beavers v. Henkel, 194 U.S.
73, 84 (1904).
\135\Lamar v. United States, 241 U.S. 103 (1916).
\136\Jones v. United States, 137 U.S. 202, 211 (1890); United
States v. Dawson, 56 U.S. (15 How.) 467, 488 (1853).
\137\Cook v. United States, 138 U.S. 157, 182 (1891). See also
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 250-54 (1940);
United States v. Johnson, 323 U.S. 273 (1944).
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
NOTICE OF ACCUSATION
The constitutional right to be informed of the nature and cause
of the accusation entitles the defendant to insist that the indictment
apprise him of the crime charged with such reasonable certainty that he
can make his defense and protect himself after judgment against another
prosecution on the same charge.\138\ No indictment is sufficient if it
does not allege all of the ingredients that constitute the crime. Where
the language of a statute is, according to the natural import of the
words, fully descriptive of the offense, it is sufficient if the
indictment follows the statutory phraseology,\139\ but where the
elements of the crime have to be ascertained by reference to the common
law or to other statutes, it is not sufficient to set forth the offense
in the words of the statute. The facts necessary to bring the case
within the statutory definition must also be alleged.\140\ If an offense
cannot be accurately and clearly described without an allegation that
the accused is not within an exception contained in the statutes, an
indictment which does not contain such allegation is defective.\141\
Despite the omission of obscene particulars, an indictment in general
language is good if the
unlawful conduct is described so as reasonably to inform the accused of
the nature of the charge sought to be established against him.\142\ The
Constitution does not require the Government to furnish a copy of the
indictment to an accused.\143\ The right to notice of accusation is so
fundamental a part of procedural due process that the States are
required to observe it.\144\
\138\United States v. Cruikshank, 92 U.S. 542, 544, 558 (1876);
United States v. Simmons, 96 U.S. 360 (1878); Bartell v. United States,
227 U.S. 427 (1913); Burton v. United States, 202 U.S. 344 (1906).
\139\Potter v. United States, 155 U.S. 438, 444 (1894).
\140\United States v. Carll, 105 U.S. 611 (1882).
\141\United States v. Cook, 84 U.S. (17 Wall.) 168, 174 (1872).
\142\Rosen v. United States, 161 U.S. 29, 40 (1896).
\143\United States v. Van Duzee, 140 U.S. 169, 173 (1891).
\144\In re Oliver, 333 U.S. 257, 273 (1948); Cole v. Arkansas,
333 U.S. 196, 201 (1948); Rabe v. Washington, 405 U.S. 313 (1972).
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
``The primary object of the constitutional provision in question
was to prevent depositions of ex parte affidavits . . . being used
against the prisoner in lieu of a personal examination and 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''\145\ The right of confrontation is ``[o]ne of the
fundamental guarantees of life and liberty . . . long deemed so
essential for the due protection of life and liberty that it is guarded
against legislative and judicial action by provisions in the
Constitution of the United States and in the constitutions of most if
not of all the States composing the Union.''\146\ Before 1965, when the
Court held the right to be protected against state abridgment,\147\ it
had little need to clarify the relationship between the right of
confrontation and the hearsay rule,\148\ inasmuch as its supervisory
powers over the inferior federal courts permitted it to control the
admission of hearsay on this basis.\149\ Thus, on the basis of the
Confrontation Clause, it had concluded that evidence given at a
preliminary hearing could not be used at the trial if the
absence of the witness was attributable to the negligence of the
prosecution,\150\ but that if a witness' absence had been procured by
the defendant, testimony given at a previous trial on a different
indictment could be used at the subsequent trial.\151\ It had also
recognized the admissibility of dying declarations\152\ and of testimony
given at a former trial by a witness since deceased.\153\ The
prosecution was not permitted to use a judgment of conviction against
other defendants on charges of theft in order to prove that the property
found in the possession of defendant now on trial was stolen.\154\
\145\Mattox v. United States, 156 U.S. 237, 242-43 (1895).
\146\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).
\147\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).
\148\Hearsay is the prior out-of-court statements of a person,
offered affirmatively for the truth of the matters asserted, presented
at trial either orally by another person or in written form. Hickory v.
United States, 151 U.S. 303, 309 (1894); Southern Ry. v. Gray, 241 U.S.
333, 337 (1916); Bridges v. Wixon, 326 U.S. 135 (1945).
\149\Thus, while it had concluded that the co-conspirator
exception to the hearsay rule was consistent with the Confrontation
Clause, Delaney v. United States, 263 U.S. 586, 590 (1924), the Court's
formulation of the exception and its limitations was pursuant to its
supervisory powers. Lutwak v. United States, 344 U.S. 604 (1953);
Krulewitch v. United States, 336 U.S. 440 (1949).
\150\Motes v. United States, 178 U.S. 458 (1900).
\151\Reynolds v. United States, 98 U.S. 145 (1879).
\152\Kirby v. United States, 174 U.S. 47, 61 (1899); Robertson
v. Baldwin, 165 U.S. 275, 282 (1897).
\153\Mattox v. United States, 156 U.S. 237, 240 (1895).
\154\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.
In a series of decisions beginning in 1965, the Court seemed to
equate the Confrontation Clause with the hearsay rule, positing that a
major purpose of the clause was ``to give the defendant charged with
crime an opportunity to cross-examine the witnesses against him,''
unless one of the hearsay exceptions applies.\155\ Thus, in Pointer v.
Texas,\156\ the complaining witness had testified at a preliminary
hearing at which he was not cross-examined and the defendant was not
represented by counsel; by the time of trial, the witness had moved to
another State and the prosecutor made no effort to obtain his return.
Offering the preliminary hearing testimony violated defendant's right of
confrontation. In Douglas v.
Alabama,\157\ the prosecution called as a witness the defendant's
alleged accomplice, and when the accomplice refused to testify, pleading
his privilege against self-incrimination, the prosecutor read to him to
``refresh'' his memory a confession in which he implicated defendant.
Because defendant could not cross-examine the accomplice with regard to
the truth of the confession, the Court held the Confrontation Clause had
been violated. In Bruton v. United States,\158\ the use at a joint trial
of a confession made by one of the defendants was held to violate the
confrontation rights of the other defendant who was implicated by it
because he could not cross-examine the codefendant not taking the
stand.\159\ The Court continues to view as ``presumptively unreliable
accomplices' confessions that incriminate defendants.''\160\
\155\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
limitation of defendant's right to cross-examine witnesses presented
against him at trial may constitute a confrontation clause violation.
Smith v. Illinois, 390 U.S. 129 (1968), or a denial of due process,
Alford v. United States, 282 U.S. 687 (1931); and In re Oliver, 333 U.S.
\156\380 U.S. 400 (1965). Justices Harlan and Stewart concurred
on due process grounds, rejecting the ``incorporation'' holding. Id. at
408, 409. See also Barber v. Page, 390 U.S. 719 (1968), in which the
Court refused to permit the State to use the preliminary hearing
testimony of a witness in a federal prison in another State at the time
of trial. The Court acknowledged the hearsay exception permitting the
use of such evidence when a witness was unavailable but refused to find
him ``unavailable'' when the State had made no effort to procure him;
Mancusi v. Stubbs, 408 U.S. 204 (1972), in which the Court permitted the
State to assume the unavailability of a witness because he now resided
in Sweden and to use the transcript of the witness' testimony at a
\157\380 U.S. 415 (1965). See also Smith v. Illinois, 390 U.S.
129 (1968) (informer as prosecution witness permitted to identify
himself by alias and to conceal his true name and address; Confrontation
Clause violated because defense could not effectively cross-examine);
Davis v. Alaska, 415 U.S. 308 (1974) (state law prohibiting disclosure
of identity of juvenile offenders could not be applied to preclude
cross-examination of witness about his juvenile record when object was
to allege possible bias on part of witness). Cf. Chambers v.
Mississippi, 410 U.S. 284 (1973); United States v. Nobles, 422 U.S. 233,
\158\391 U.S. 123 (1968). The Court in this case equated
confrontation with the hearsay rule, first emphasizing ``that the
hearsay statement inculpating petitioner was clearly inadmissible
against him under traditional rules of evidence'', id. at 128 n.3, and
then observing that ``[t]he reason for excluding this evidence as an
evidentiary matter also requires its exclusion as a constitutional
matter.'' Id. at 136 n.12 (emphasis by Court). Bruton was applied
retroactively in a state case in Roberts v. Russell, 392 U.S. 293
(1968). Where, however, the codefendant takes the stand in his own
defense, denies making the alleged out-of-court statement implicating
defendant, and proceeds to testify favorably to the defendant concerning
the underlying facts, the defendant has not been denied his right of
confrontation under Bruton, Nelson v. O'Neil, 402 U.S. 622 (1971). In
two cases, violations of the rule in Bruton have been held to be
``harmless error'' in the light of the overwhelming amount of legally
admitted evidence supporting conviction. Harrington v. California, 395
U.S. 250 (1969); Schneble v. Florida, 405 U.S. 427 (1972). Bruton was
held inapplicable, however, when the nontestifying codefendant's
confession was redacted to omit any reference to the defendant, and was
circumstantially incriminating only as the result of other evidence
properly introduced. Richardson v. Marsh, 481 U.S. 200 (1987).
\159\In Parker v. Randolph, 442 U.S. 62 (1979), the Court was
evenly divided on the question whether interlocking confessions may be
admitted without violating the clause. Four Justices held that admission
of such confessions is proper, even though neither defendant testifies,
if the judge gives the jury a limiting instruction. Four Justices held
that a harmless error analysis should be applied, although they then
divided over its meaning in this case. The former approach was rejected
in favor of the latter in Cruz v. New York, 481 U.S. 186 (1987). The
appropriate focus is on reliability, the Court indicated, and ``the
defendant's confession may be considered at trial in assessing whether
his codefendant's statements are supported by sufficient `indicia of
reliability' to be directly admissible against him (assuming the
`unavailability of the codefendant' despite the lack of opportunity for
cross-examination.'' 481 U.S. at 193-94.
\160\Lee v. Illinois, 476 U.S. 530, 541 (1986).
More recently, however, the Court has moved away from these
cases. ``While . . . hearsay rules and the Confrontation Clause are
generally designed to protect similar values it is quite a different
thing to suggest that the overlap is complete and that the Confrontation
Clause is nothing more or less than a codification of the rules of
hearsay and their exceptions as they existed historically at common law.
Our decisions have never established such a congruence; indeed, we have
more than once found a violation of confrontation values even though the
statements in issue were admitted under an arguably recognized hearsay
exception . . . . The converse is equally true: merely because evidence
is admitted in violation of a long-established hearsay rule does not
lead to the automatic conclusion that confrontation rights have been
\161\California v. Green, 399 U.S. 149, 155-56 (1970); Dutton v.
Evans, 400 U.S. 74, 80-86 (1970). Compare id. at 93, 94, 95 (Justice
Harlan concurring), with id. at 100, 105 n.7 (Justice Marshall
dissenting). See also United States v. Inadi, 475 U.S. 387 (1986).
Further, the Court in California v. Green\162\ upheld the use at
trial as substantive evidence of two prior statements made by a witness
who at the trial claimed that he had been under the influence of LSD at
the time of the occurrence of the events in question and that he could
therefore neither deny nor affirm the truth of his prior statements. One
of the earlier statements was sworn testimony given at a preliminary
hearing at which the defendant was represented by counsel with the
opportunity to cross-examine the witness; that statement was admissible
because it had been subjected to cross-examination earlier, the Court
held, and that was all that was required. The other statement had been
made to policemen during custodial interrogation, had not been under
oath, and, of course, had not been subject to cross-examination, but the
Court deemed it admissible because the witness had been present at the
trial and could have been cross-examined then. ``[T]he Confrontation
Clause does not require excluding from evidence the prior statements of
a witness who concedes making the statements, and who may be asked to
defend or otherwise explain the inconsistency between his prior and his
present version of the events in question, thus opening himself to full
cross-examination at trial as to both
stories.''\163\ But in Dutton v. Evans,\164\ the Court upheld the use as
substantive evidence at trial of a statement made by a witness whom the
prosecution could have produced but did not. Presentation of a statement
by a witness who is under oath, in the presence of the jury, and subject
to cross-examination by the defendant is only one way of complying with
the Confrontation Clause, four Justices concluded. Thus, at least in the
absence of prosecutorial misconduct or negligence and where the evidence
is not ``crucial'' or ``devastating,'' the Confrontation Clause is
satisfied if the circumstances of presentation of out-of-court
statements are such that ``the trier of fact [has] a satisfactory basis
for evaluating the truth of the [hearsay] statement,'' and this is to be
ascertained in each case by focusing on the reliability of the proffered
hearsay statement, that is, by an inquiry into the likelihood that
cross-examination of the declarant at trial could successfully call into
question the declaration's apparent meaning or the declarant's
sincerity, perception, or memory.\165\
\162\399 U.S. 149 (1970).
\163\Id. at 164. Justice Brennan dissented. Id. at 189. See also
Nelson v. O'Neil, 402 U.S. 622 (1971). ``The Confrontation Clause
includes no guarantee that every witness called by the prosecution will
refrain from giving testimony that is marred by forgetfulness,
confusion, or evasion. To the contrary, the Confrontation Clause is
generally satisfied when the defense is given a full and fair
opportunity to probe and expose these infirmities through cross-
examination.'' Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985) (per
curiam) (expert witness testified as to conclusion, but could not
remember basis for conclusion). See also United States v. Owens, 484
U.S. 554 (1988) (testimony as to previous, out-of-court identification
statement is not barred by witness' inability, due to memory loss, to
explain the basis for his identification).
\164\400 U.S. 74 (1970). The statement was made by an alleged
co-conspirator of the defendant on trial and was admissible under the
co-conspirator exception to the hearsay rule permitting the use of a
declaration by one conspirator against all his fellow conspirators. The
state rule permitted the use of a statement made during the concealment
stage of the conspiracy while the federal rule permitted use of a
statement made only in the course of and in furtherance of the
conspiracy. Id. at 78, 81-82.
\165\Id. at 86-89. The quoted phrase is at 89, (quoting
California v. Green, 399 U.S. 149, 161 (1970)). Justice Harlan concurred
to carry the case, on the view that (1) the Confrontation Clause
requires only that any testimony actually given at trial must be subject
to cross-examination, but (2) in the absence of countervailing
circumstances introduction of prior recorded testimony--``trial by
affidavit''--would violate the clause. Id. at 93, 95, 97. Justices
Marshall, Black, Douglas, and Brennan dissented, id. at 100, arguing for
adoption of a rule that: ``The incriminatory extrajudicial statement of
an alleged accomplice is so inherently prejudicial that it cannot be
introduced unless there is an opportunity to cross-examine the
declarant, whether or not his statement falls within a genuine exception
to the hearsay rule.'' Id. at 110-11. The Clause protects defendants
against use of substantive evidence against them, but does not bar
rebuttal of the defendant's own testimony. Tennessee v. Street, 471 U.S.
409 (1985) (use of accomplice's confession not to establish facts as to
defendant's participation in the crime, but instead to support officer's
rebuttal of defendant's testimony as to circumstances of defendant's
confession; presence of officer assured right of cross-examination).
In Ohio v. Roberts,\166\ the Court explained that it had
construed the clause ``in two separate ways to restrict the range of
admissible hearsay.'' First, there is a rule of ``necessity,'' under
which in the usual case ``the prosecution must either produce, or
demonstrate the unavailability of, the declarant whose statement it
wishes to use against the defendant.'' Second, ``once a witness is shown
to be unavailable . . . , the Clause countenances only hearsay marked
with such trustworthiness that `there is no material departure from the
reason of the general rule.'''\167\ That is, if the hearsay declarant is
not present for cross-examination at trial, the ``statement is
admissible only if it bears adequate `indicia of reliability.'
Reliability can be inferred without more in a case where the evidence
falls within a firmly rooted hearsay exception. In other cases, the
evidence must be excluded, at least absent a showing of particularized
guarantees of trustworthiness.''\168\
\166\448 U.S. 56 (1980). The witness was absent from home and
her parents testified they did not know where she was or how to get in
touch with her. The State's sole effort to locate her was to deliver a
series of subpoenas to her parents' home. Over the objection of three
dissenters, the Court held this to be an adequate basis to demonstrate
her unavailability. Id. at 74-77.
\167\Id. at 65 (quoting Snyder v. Massachusetts, 291 U.S. 97,
\168\Id. at 66. Applying Roberts, the Court held that the fact
that defendant's and codefendant's confessions ``interlocked'' on a
number of points was not a sufficient indicium of reliability, since the
confessions diverged on the critical issues of the respective roles of
the two defendants. Lee v. Illinois, 476 U.S. 530 (1986).
Roberts was narrowed in United States v. Inadi,\169\ holding
that the rule of ``necessity'' is confined to use of testimony from a
prior judicial proceeding, and is inapplicable to co-conspirators' out-
of-court statements. The latter--at least those ``made while the
conspiracy is in progress''--have ``independent evidentiary significance
of [their] own''; hence in-court testimony is not a necessary or valid
substitute.\170\ Similarly, evidence embraced within such firmly rooted
exceptions to the hearsay rule as those for spontaneous declarations and
statements made for medical treatment'' is not barred from trial by the
Confrontation Clause.\171\ Particularized guarantees of trustworthiness
inherent in the circumstances under which a statement is made must be
shown for admission of other hearsay evidence not covered by a ``firmly
rooted exception;'' evidence tending to corroborate the truthfulness of
a statement may not be relied upon as a bootstrap.\172\
\169\475 U.S. 387 (1986).
\170\Id. at 394-95.
\171\White v. Illinois, 112 S. Ct. 736, 743 (1992).
\172\Idaho v. Wright, 497 U.S. 805, 822-23 (1990) (insufficient
evidence of trustworthiness of statements made by child sex crime victim
to her pediatrician; statements were admitted under a ``residual''
hearsay exception rather than under a firmly rooted exception).
Contrasting approaches to the Confrontation Clause were taken by
the Court in two cases involving state efforts to protect child sex
crime victims from trauma while testifying. In Coy v. Iowa,\173\ the
Court held that the right of confrontation is violated by a procedure,
authorized by statute, placing a one-way screen between complaining
child witnesses and the defendant, thereby sparing the witnesses from
viewing the defendant. This conclusion was reached even though the
witnesses could be viewed by the defendant's counsel and by the judge
and jury, even though the right of cross-examination was in no way
limited, and even though the state asserted a strong interest in
protecting child sex-abuse victims from further trauma.\174\ The Court's
opinion by Justice Scalia declared that a defendant's right during his
trial to face-to-face confrontation with his accusers derives from ``the
irreducible literal meaning of the clause,'' and traces ``to the
beginnings of Western legal culture.''\175\ Squarely rejecting the
Wigmore view ``that the only essential interest preserved by the right
was cross-examination,\176\ the Court emphasized the importance of face-
to-face confrontation in eliciting truthful testimony.
\173\487 U.S. 1012 (1988).
\174\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.
\175\Id. at 1015, 1021 (1988).
\176\Id. at 1018 n.2.
Coy's interpretation of the Clause, though not its result, was
rejected in Maryland v. Craig.\177\ In Craig the Court upheld Maryland's
use of one-way, closed circuit television to protect a child witness in
a sex crime from viewing the defendant. As in Coy, procedural
protections other than confrontation were afforded: the child witness
must testify under oath, is subject to cross examination, and is viewed
by the judge, jury, and defendant. The critical factual difference
between the two cases was that Maryland required a case-specific finding
that the child witness would be traumatized by presence of the
defendant, while the Iowa procedures struck down in Coy rested on a
statutory presumption of trauma. But the difference in approach is
explained by the fact that Justice O'Connor's views, expressed in a
concurring opinion in Coy, became the opinion of the Court in
Craig.\178\ Beginning with the propo
sition that the Confrontation Clause does not, as evidenced by hearsay
exceptions, grant an absolute right to face-to-face confrontation, the
Court in Craig described the Clause as ``reflect[ing] a preference for
face-to-face confrontation.''\179\ This preference can be overcome
``only where denial of such confrontation is necessary to further an
important public policy and only where the reliability of the testimony
is otherwise assured.''\180\ Relying on the traditional and
``transcendent'' state interest in protecting the welfare of children,
on the significant number of state laws designed to protect child
witnesses, and on ``the growing body of academic literature documenting
the psychological trauma suffered by child abuse victims,''\181\ the
Court found a state interest sufficiently important to outweigh a
defendant's right to face-to-face confrontation. Reliability of the
testimony was assured by the ``rigorous adversarial testing [that]
preserves the essence of effective confrontation.''\182\ All of this, of
course, would have led to a different result in Coy as well, but Coy was
distinguished with the caveat that ``[t]he requisite finding of
necessity must of course be a case-specific one;'' Maryland's required
finding that a child witness would suffer ``serious emotional distress''
if not protected was clearly adequate for this purpose.\183\
\177\497 U.S. 836 (1990).
\178\Coy was decided by a 6-2 vote. Justice Scalia's opinion of
the Court was joined by Justices Brennan, White, Marshall, Stevens, and
O'Connor; Justice O'Connor's separate concurring opinion was joined by
Justice White; Justice Blackmun's dissenting opinion was joined by Chief
Justice Rehnquist; and Justice Kennedy did not participate. In Craig, a
5-4 decision, Justice O'Connor's opinion of the Court was joined by the
two Coy dissenters and by Justices White and Kennedy. Justice Scalia's
dissent was joined by Justices Brennan, Marshall, and Stevens.
\179\497 U.S. at 849 (emphasis original).
\180\Id. at 850. Dissenting Justice Scalia objected that face-
to-face confrontation ``is not a preference `reflected' by the
Confrontation Clause [but rather] a constitutional right unqualifiedly
guaranteed,'' and that the Court ``has applied `interest-balancing'
analysis where the text of the Constitution simply does not permit it.''
Id. at 863, 870.
\181\Id. at 855.
\182\Id. at 857.
\183\Id. at 855.
In another case involving child sex crime victims, the Court
held that there is no right of face-to-face confrontation at an in-
chambers hearing to determine the competency of a child victim to
testify, since the defendant's attorney participated in the hearing, and
since the procedures allowed ``full and effective'' opportunity to
cross-examine the witness at trial and request reconsideration of the
competency ruling.\184\ And there is no absolute right to confront
witnesses with relevant evidence impeaching those witnesses; failure to
comply with a rape shield law's notice requirement can validly preclude
introduction of evidence relating to a witness's prior sexual
\184\Kentucky v. Stincer, 482 U.S. 730, 744 (1987).
\185\Michigan v. Lucas, 500 U.S. 145 (1991).
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
The provision requires, of course, that the defendant be
afforded legal process to compel witnesses to appear,\186\ but another
apparent purpose of the provision was to make inapplicable in federal
trials the common-law rule that in cases of treason or felony the
accused was not allowed to introduce witnesses in his defense.\187\
``The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense, the right to present the defendant's version of the facts as
well as the prosecution's to the jury so it may decide where the truth
lies. Just as an accused has the right to confront the prosecution's
witnesses for the purpose of challenging their testimony, he has the
right to present his own witnesses to establish a defense. This right is
a fundamental element of due process of law,'' applicable to states by
way of the Fourteenth Amendment, and the right is violated by a state
law providing that coparticipants in the same crime could not testify
for one another.\188\
\186\United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa.
1800) (Justice Chase on circuit).
\187\3 J. Story, Commentaries on the Constitution of the United
States 1786 (1833). See Rosen v. United States, 245 U.S. 467 (1918).
\188\Washington v. Texas, 388 U.S. 14, 19-23 (1967). Texas did
permit coparticipants to testify for the prosecution.
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
\189\Taylor v. Illinois, 484 U.S. 400 (1988).
In Pennsylvania v. Ritchie, the Court indicated that requests to
compel the government to reveal the identity of witnesses or produce
exculpatory evidence should be evaluated under due process rather than
compulsory process analysis, adding that ``compulsory process provides
no greater protections in this area than due process.''\190\
\190\480 U.S. 39, 56 (1987) (ordering trial court review of
files of child services agency to determine whether they contain
evidence material to defense in child abuse prosecution).
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
ASSISTANCE OF COUNSEL
Development of an Absolute Right to Counsel at Trial
Neither in the Congress which proposed what became the Sixth
Amendment guarantee that the accused is to have the assistance of
counsel nor in the state ratifying conventions is there any
indication of the understanding associated with the language employed.
The development of the common-law principle in England had denied to
anyone charged with a felony the right to retain counsel, while the
right was afforded in misdemeanor cases, a rule ameliorated in practice,
however, by the judicial practice of allowing counsel to argue points of
law and then generously interpreting the limits of ``legal questions.''
The colonial and early state practice in this country was varied,
ranging from the existent English practice to appointment of counsel in
a few States where needed counsel could not be retained.\191\
Contemporaneously with the proposal and ratification of the Sixth
Amendment, Congress enacted two statutory provisions which seemed to
indicate an understanding that the guarantee was limited to assuring
that a person wishing and able to afford counsel would not be denied
that right.\192\ It was not until the 1930's that the Supreme Court
began expanding the clause to its present scope.
\191\W. Beaney, The Right to Counsel in American Courts 8-26
\192\Section 35 of the Judiciary Act of 1789, ch.20, 1 Stat. 73,
provided that in federal courts parties could manage and plead their own
causes personally or by the assistance of counsel as provided by the
rules of court. The Act of April 30, 1790, ch.9, 1 Stat. 118, provided:
Every person who is indicted of treason or other capital crime, ``shall
be allowed to make his full defense by counsel learned in the law; and
the court before which he is tried, or some judge thereof, shall
immediately, upon his request, assign to him such counsel not exceeding
two, as he may desire, and they shall have free access to him at all
reasonable hours.'' It was apparently the practice almost invariably to
appoint counsel for indigent defendants charged with noncapital crimes,
although it may be assumed that the practice fell short often of what is
now constitutionally required. W. Beaney, The Right to Counsel in
American Courts 29-30 (1955).
Powell v. Alabama.--The expansion began in Powell v.
Alabama,\193\ in which the Court set aside the convictions of eight
black youths sentenced to death in a hastily carried-out trial without
benefit of counsel. Due process, Justice Sutherland said for the Court,
always requires the observance of certain fundamental personal rights
associated with a hearing, and ``the right to the aid of counsel is of
this fundamental character.'' This observation was about the right to
retain counsel of one's choice and at one's expense, and included an
eloquent statement of the necessity of counsel. ``The right to be heard
would be, in many cases, of little avail if it did not comprehend the
right to be heard by counsel. Even the intelligent and educated layman
has small and sometimes no skill in the science of law. If charged with
crimes, he is incapable, generally, of determining for himself whether
the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel he may be put on trial without
a proper charge, and convicted upon incompetent evidence, or evidence
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
\193\287 U.S. 45 (1932).
\194\Id. at 68-69.
The failure to afford the defendants an opportunity to retain
counsel violated due process, but the Court acknowledged that as
indigents the youths could not have retained counsel. Therefore, the
Court concluded, under the circumstances--``the ignorance and illiteracy
of the defendants, their youth, the circumstances of public hostility,
the imprisonment and the close surveillance of the defendants by the
military forces, the fact that their friends and families were all in
other states and communication with them necessarily difficult, and
above all that they stood in deadly peril of their lives''--``the
necessity of counsel was so vital and imperative that the failure of the
trial court to make an effective appointment of counsel was likewise a
denial of due process within the meaning of the Fourteenth Amendment.''
The holding was narrow. ``[I]n a capital case, where the defendant is
unable to employ counsel, and is incapable adequately of making his own
defense because of ignorance, feeble mindedness, illiteracy, or the
like, it is the duty of the court, whether requested or not, to assign
counsel for him as a necessary requisite of due process of law .
. . .''\195\
\195\Id. at 71.
Johnson v. Zerbst.--Next step in the expansion came in Johnson
v. Zerbst,\196\ in which the Court announced an absolute rule requiring
appointment of counsel for federal criminal defendants who could not
afford to retain a lawyer. The right to assistance of counsel, Justice
Black wrote for the Court, ``is necessary to insure fundamental human
rights of life and liberty.'' Without stopping to distinguish between
the right to retain counsel and the right to have counsel provided if
the defendant cannot afford to hire one, the Justice quoted Justice
Sutherland's invocation of the necessity of legal counsel for even the
intelligent and educated layman and said: ``The Sixth Amendment
withholds from federal courts, in all criminal proceedings, the power
and authority to deprive an accused of his life or liberty unless he has
or waives the assistance of counsel.''\197\ Any waiver, the Court ruled,
must be by the intelligent choice of the defendant, will not be presumed
a silent record, and must be determined by the trial court before
proceeding in the absence of counsel.\198\
\196\304 U.S. 458 (1938).
\197\Id. at 462, 463.
\198\Id. at 464-465. The standards for a valid waiver were
tightened in Walker v. Johnston, 312 U.S. 275 (1941), setting aside a
guilty plea made without assistance of counsel, by a ruling requiring
that a defendant appearing in court be advised of his right to counsel
and asked whether or not he wished to waive the right. See also Von
Moltke v. Gillies, 332 U.S. 708 (1948); Carnley v. Cochran, 369 U.S. 506
Betts v. Brady and Progeny.--An effort to obtain the same rule
in the state courts in all criminal proceedings was rebuffed in Betts v.
Brady.\199\ Justice Roberts for the Court observed that the Sixth
Amendment would compel the result only in federal courts but that in
state courts the Due Process Clause of the Fourteenth Amendment
``formulates a concept less rigid and more fluid'' than those guarantees
embodied in the Bill of Rights, although a state denial of a right
protected in one of the first eight Amendments might ``in certain
circumstances'' be a violation of due process. The question was rather
``whether the constraint laid by the Amendment upon the national courts
expresses a rule so fundamental and essential to a fair trial, and so,
to due process of law, that it is made obligatory upon the States by the
Fourteenth Amendment.''\200\ Examining the common-law rules, the English
practice, and the state constitutions, laws and practices, the Court
concluded that it was the ``considered judgment of the people, their
representatives and their courts that appointment of counsel is not a
fundamental right essential to a fair trial.'' Want of counsel in a
particular case might result in a conviction lacking in fundamental
fairness and so necessitate the interposition of constitutional
restriction upon state practice, but this was not the general rule.\201\
Justice Black in dissent argued that the Fourteenth Amendment made the
Sixth applicable to the States and required the appointment of counsel,
but that even on the Court's terms counsel was a fundamental right and
appointment was required by due process.\202\
\199\316 U.S. 455 (1942).
\200\Id. at 461-62, 465.
\201\Id. at 471, 473.
\202\Id. at 474 (joined by Justices Douglas and Murphy).
Over time the Court abandoned the ``special circumstances''
language of Powell v. Alabama\203\ when capital cases were involved and
finally in Hamilton v. Alabama,\204\ held that in a capital case
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.''\205\ The rule
was designed to afford some certainty in the determination of when
failure to appoint counsel would result in a trial lacking in
``fundamental fairness.'' Generally, the Court developed three
categories of prejudicial factors, often overlapping in individual
cases, which required the furnishing of assistance of counsel. There
were (1) the personal characteristics of the defendant which made it
unlikely he could obtain an adequate defense of his own,\206\ (2) the
technical complexity of the charges or of possible defenses to the
charges,\207\ and (3) events occurring at trial that raised problems of
prejudice.\208\ The last characteristic especially had been utilized by
the Court to set aside convictions occurring in
the absence of counsel,\209\ and the last case rejecting a claim of
denial of assistance of counsel had been decided in 1950.\210\
\203\287 U.S. 45, 71 (1932).
\204\368 U.S. 52 (1961). Earlier cases employing the ``special
circumstances'' language were Williams v. Kaiser, 323 U.S. 471 (1945);
Tompkins v. Missouri, 323 U.S. 485 (1945); Hawk v. Olson, 326 U.S. 271
(1945); De Meerleer v. Michigan, 329 U.S. 663 (1947); Marino v. Ragen,
332 U.S. 561 (1947); Haley v. Ohio, 332 U.S. 596 (1948). Dicta appeared
in several cases thereafter suggesting an absolute right to 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).
\205\Gideon v. Wainwright, 372 U.S. 335, 350 (1963).
\206\Youth and immaturity (Moore v. Michigan, 355 U.S. 155
(1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956);
Uveges v. Pennsylvania, 335 U.S. 437 (1948); Wade v. Mayo, 334 U.S. 672
(1948); Marino v. Ragen, 332 U.S. 561 (1947); De Meerleer v. Michigan,
329 U.S. 663 (1947)), inexperience (Moore v. Michigan, supra (limited
education), Uveges v. Pennsylvania, supra), and insanity or mental
abnormality (Massey v. Moore, 348 U.S. 105 (1954); Palmer v. Ashe, 342
U.S. 134 (1951)), were commonly-cited characteristics of the defendant
demonstrating the necessity for assistance of counsel.
\207\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.
\208\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
\209\Hudson v. North Carolina, 363 U.S. 697 (1960), held that an
unrepresented defendant had been prejudiced when his co-defendant's
counsel plead his client guilty in the presence of the jury, the
applicable state rules to avoid prejudice in such situation were
unclear, and the defendant in any event had taken no steps to protect
himself. The case seemed to require reversal of any conviction when the
record contained a prejudicial occurrence that under state law might
have been prevented or ameliorated. Carnley v. Cochran, 369 U.S. 506
(1962), reversed a conviction because the unrepresented defendant failed
to follow some advantageous procedure that a lawyer might have utilized.
Chewning v. Cunningham, 368 U.S. 443 (1962), found that a lawyer might
have developed several defenses and adopted several tactics to defeat a
charge under a state recidivist statute, and that therefore the
unrepresented defendant had been prejudiced.
\210\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).
Gideon v. Wainwright.--Against this background, a unanimous
Court in Gideon v. Wainwright\211\ overruled Betts v. Brady and held
``that in our adversary system of criminal justice, any person haled
into court, who is too poor to hire a lawyer, cannot be assured a fair
trial unless counsel is provided for him.''\212\ Justice Black, a
dissenter in the 1942 decision, asserted for the Court that Betts was an
``abrupt break'' with earlier precedents, citing Powell and Johnson v.
Zerbst. Rejecting the Betts reasoning, the Court decided that the right
to assistance of counsel is ``fundamental'' and the Fourteenth Amendment
does make the right constitutionally required in state courts.\213\ The
Court's opinion in Gideon left unanswered the question whether the right
to assistance of counsel was claimable by defendants charged with
misdemeanors or serious misdemeanors as well as with felonies, and it
was not until recently that the Court held that the right applies to any
misdemeanor case in which imprisonment is imposed--that no person may be
sentenced to jail who was convicted in the absence of counsel, unless he
validly waived his right.\214\ The right to the assistance of counsel
exists in juvenile proceedings also.\215\
\211\372 U.S. 335 (1963).
\212\Id. at 344.
\213\Id. at 342-43, 344. Justice Black, of course, believed the
Fourteenth Amendment made applicable to the States all the provisions of
the Bill of Rights, Adamson v. California, 332 U.S. 46, 71 (1947), but
for purposes of delivering the opinion of the Court followed the due
process absorption doctrine. Justice Douglas, concurring, maintained the
incorporation position. Gideon, supra, at 345. Justice Harlan concurred,
objecting both to the Court's manner of overruling Betts v. Brady and to
the incorporation implications of the opinion. Id. at 349.
\214\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.
\215\In re Gault, 387 U.S. 1 (1967). See also Specht v.
Patterson, 386 U.S. 605 (1967).
Because the absence of counsel when a defendant is convicted or
pleads guilty goes to the fairness of the proceedings and undermines the
presumption of reliability that attaches to a judgment of a court,
Gideon has been held fully retroactive, so that convictions obtained in
the absence of counsel without a valid waiver are not only
voidable,\216\ but also may not be subsequently used either to support
guilt in a new trial or to enhance punishment upon a valid
\216\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).
\217\Burgett v. Texas, 389 U.S. 109 (1967) (admission of record
of prior counselless conviction at trial with instruction to jury to
regard it only for purposes of determining sentence if it found
defendant guilty but not to use it in considering guilt inherently
prejudicial); United States v. Tucker, 404 U.S. 443 (1972) (error for
sentencing judge in 1953 to have relied on two previous convictions at
which defendant was without counsel); Loper v. Beto, 405 U.S. 473 (1972)
(error to have permitted counseled defendant in 1947 trial to have his
credibility impeached by introduction of prior uncounseled convictions
in the 1930's; Chief Justice Burger and Justices Blackmun, Powell, and
Rehnquist dissented); Baldasar v. Illinois, 446 U.S. 222 (1980)
(although under Scott v. Illinois, 440 U.S. 367 (1979), an uncounseled
misdemeanor conviction is valid if defendant is not incarcerated, such a
conviction nonetheless may not be used under an enhanced penalty statute
to convert a subsequent misdemeanor into a felony with a prison term).
Protection of the Right to Retained Counsel.--The Sixth
Amendment has also been held to protect absolutely the right of a
defendant to retain counsel of his choice and to be represented in the
fullest measure by the person of his choice. Thus, in Chandler v.
Fretag,\218\ when a defendant appearing to plead guilty on a house-
breaking charge was orally advised for the first time that, because of
three prior convictions for felonies, he would be tried also as an
habitual criminal and if convicted would be sentenced to life
imprisonment, the court's denial of his request for a continuance in
order to consult an attorney was a violation of his Fourteenth Amendment
due process rights. ``Regardless of whether petitioner would have been
entitled to the appointment of counsel, his right to be heard through
his own counsel was unqualified. . . . A necessary corollary is that a
defendant must be given a reasonable opportunity to employ and consult
with counsel; otherwise, the right to be heard by counsel would be of
little worth.''\219\ But the right to retain counsel of choice does not
bar operation of forfeiture provisions, even if the result is to deny to
a defendant the wherewithal to employ counsel. In Caplin & Drysdale v.
United States,\220\ the Court upheld a federal statute requiring
the government of property and proceeds derived from drug-related crimes
constituting a ``continuing criminal enterprise,''\221\ even though a
portion of the forfeited assets had been used to retain defense counsel.
While a defendant may spend his own money to employ counsel, the Court
declared, ``[a] defendant has no Sixth Amendment right to spend another
person's money for services rendered by an attorney, even if those funds
are the only way that defendant will be able to retain the attorney of
his choice.''\222\ Because the statute vests title to the forfeitable
assets in the United States at the time of the criminal act,\223\ the
defendant has no right to give them to a ``third party'' even if the
purpose is to exercise a constitutionally protected right.\224\
\218\348 U.S. 3 (1954).
\219\Id. at 9, 10. See also House v. Mayo, 324 U.S. 42 (1945);
Hawk v. Olson, 326 U.S. 271 (1945); Reynolds v. Cochran, 365 U.S. 525
\220\491 U.S. 617 (1989).
\221\21 U.S.C. Sec. 853.
\222\491 U.S. at 626.
\223\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.
\224\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
Whenever defense counsel is representing two or more defendants
and asserts in timely fashion to the trial judge that because of
possible conflicts of interest between or among his clients he is unable
to render effective assistance, the judge must examine the claim
carefully, and unless he finds the risk too remote he must permit or
appoint separate counsel.\225\ Subsequently, the Court elaborated upon
this principle and extended it.\226\ First, the Sixth Amendment right to
counsel applies to defendants who retain private counsel as well as to
defendants served by appointed counsel. Second, judges are not
automatically required to initiate an inquiry into the propriety of
multiple representation, being able to assume in the absence of
undefined ``special circumstances'' that no conflict exists. Third, to
establish a violation, a defendant must show an ``actual conflict of
interest which adversely affected his lawyer's performance.'' Once it is
established that a conflict affected the lawyer's action, however,
prejudice need not be proved.\227\
\225\Holloway v. Arkansas, 435 U.S. 475 (1978). Counsel had been
appointed by the court.
\226\Cuyler v. Sullivan, 446 U.S. 335 (1980).
\227\Id. at 348-50. For earlier cases presenting more direct
violations of defendant's rights, see Glasser v. United States, 315 U.S.
60 (1942); United States v. Hayman, 342 U.S. 205 (1952); and Ellis v.
United States, 365 U.S. 674 (1958).
``[T]he right to the assistance of counsel has been understood
to mean that there can be no restrictions upon the function of counsel
in defending a criminal prosecution in accord with the traditions of the
adversary factfinding process that has been
constitutionalized in the Sixth and Fourteenth Amendments.''\228\ So
saying, the Court invalidated a statute empowering every judge in a
nonjury criminal trial to deny the parties the right to make a final
summation before rendition of judgment which had been applied in the
specific case to prevent defendant's counsel from making a summation.
The opportunity to participate fully and fairly in the adversary
factfinding process includes counsel's right to make a closing argument.
And, in Geders v. United States,\229\ the Court held that a trial
judge's order preventing defendant from consulting his counsel during a
17-hour overnight recess between his direct and cross-examination, in
order to prevent tailoring of testimony or ``coaching,'' deprived
defendant of his right to assistance of counsel and was invalid.\230\
Other direct and indirect restraints upon counsel and his discretion
have been found to be in violation of the Amendment.\231\ Governmental
investigative agents may interfere as well with the relationship of
defense and counsel.\232\
\228\Herring v. New York, 422 U.S. 853, 857 (1975).
\229\425 U.S. 80 (1976).
\230\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 cross-examination.
\231\E.g., Ferguson v. Georgia, 365 U.S. 570 (1961) (where
defendant was prevented by statute from giving sworn testimony in his
defense, the refusal of a state court to permit defense counsel to
question him to elicit his unsworn statement denied due process because
it denied him assistance of counsel); Brooks v. Tennessee, 406 U.S. 605
(1972) (alternative holding) (statute requiring defendant to testify
prior to any other witness for defense or to forfeit the right to
testify denied him due process by depriving him of decision of counsel
on questions whether to testify and when).
\232\United States v. Morrison, 449 U.S. 361 (1981) (Court
assumed that investigators who met with defendant, on another matter,
without knowledge or permission of counsel and who disparaged counsel
and suggested she could do better without him interfered with counsel,
but held that in absence of showing of adverse consequences to
representation, dismissal of indictment was inappropriate remedy).
Effective Assistance of Counsel.--``[T]he right to counsel is
the right to the effective assistance of counsel.''\233\ From the
beginning of the cases holding that counsel must be appointed for
defendants unable to afford to retain a lawyer, the Court has indicated
that appointment must be made in a manner that affords ``effective aid
in the preparation and trial of the case.''\234\ Of course, the
government must not interfere with representation, either through the
manner of appointment or through the imposition of restrictions upon
appointed or retained counsel that would impede his ability fairly to
provide a defense,\235\ but the Sixth Amendment
goes further than that. ``The right to counsel prevents the States from
conducting trials at which persons who face incarceration must defend
themselves without adequate legal assistance.''\236\ That is, a criminal
trial initiated and conducted by government is state action which may be
so fundamentally unfair that no conviction obtained thereby may be
allowed to stand, irrespective of the possible fact that government did
nothing itself to bring about the unfairness. Thus, ineffective
assistance provided by retained counsel provides a basis for finding a
Sixth Amendment denial in a trial.\237\
\233\McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
\234\Powell v. Alabama, 287 U.S. 45, 71-72 (1932); Glasser v.
United States, 315 U.S. 60, 70 (1942).
\235\E.g., Glasser v. United States, 315 U.S. 60 (1942) (trial
court required defendant and codefendant to be represented by same
appointed counsel despite divergent interests); Geders v. United States,
425 U.S. 80 (1976) (trial judge barred consultation between defendant
and attorney overnight); Herring v. New York, 422 U.S. 853 (1975)
(application of statute to bar defense counsel from making final
\236\Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).
\237\Id. at 342-45. But see Wainwright v. Torna, 455 U.S. 586
(1982) (summarily holding that defendant may not raise ineffective
assistance claim in context of proceeding in which he had no
constitutional right to counsel).
The trial judge must not only refrain from creating a situation
of ineffective assistance, but may well be obligated under certain
circumstances to inquire whether defendant's counsel, because of a
possible conflict of interest or otherwise, is rendering or may render
ineffective assistance.\238\ A much more difficult issue is presented
when a defendant on appeal or in a collateral proceeding alleges that
his counsel was incompetent or was not competent enough to provide
effective assistance. While the Court touched on the question in
1970,\239\ it was not until 1984, in Strickland v. Washington,\240\ that
the Court articulated a general test for ineffective assistance of
counsel in criminal trials and in capital sentencing proceedings.\241\
\238\Holloway v. Arkansas, 435 U.S. 475 (1978) (public defender
representing three defendants alerted trial judge to possibility of
conflicts of interest; judge should have appointed different counsel or
made inquiry into possibility of conflicts); Cuyler v. Sullivan, 446
U.S. 335 (1980) (trial judge had no obligation to inquire into adequacy
of multiple representation, with possible conflict of interest, in
absence of raising of issue by defendant or counsel); Wood v. Georgia,
450 U.S. 261 (1981) (where counsel retained by defendants' employer had
conflict between their interests and employer's, and all the facts were
known to trial judge, he should have inquired further); Wheat v. United
States, 486 U.S. 153 (1988) (district court correctly denied defendant's
waiver of right to conflict-free representation; separate representation
order is justified by likelihood of attorney's conflict of interest).
\239\In McMann v. Richardson, 397 U.S. 759, 768-71 (1970), the
Court observed that whether defense counsel provided adequate
representation, in advising a guilty plea, depended not on whether a
court would retrospectively consider his advice right or wrong ``but on
whether that advice was within the range of competence demanded of
attorneys in criminal cases.'' See also Tollett v. Henderson, 411 U.S.
258, 266-69 (1973); United States v. Agurs, 427 U.S. 97, 102 n.5 (1976).
\240\466 U.S. 668 (1984).
\241\Strickland involved capital sentencing, and the Court left
open the issue of what standards might apply in ordinary sentencing,
where there is generally far more discretion than in capital sentencing,
or in the guilt/innocence phase of a capital trial. 466 U.S. at 686.
There are two components to the test: deficient attorney
performance and resulting prejudice to the defense so serious as to
bring the outcome of the proceeding into question. Although the gauge of
effective attorney performance is an objective standard of
reasonableness, the Court concluded that ``[j]udicial scrutiny of
counsel's performance must be highly deferential.'' Strategic choices
made after thorough investigation of relevant law and facts are
``virtually unchallengeable,'' as are ``reasonable'' decisions making
investigation unnecessary.\242\ In order to establish prejudice
resulting from attorney error, the defendant ``must show that there is a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.''\243\ In Strickland, neither part of the test was satisfied.
The attorney's decision to forego character and psychological evidence
in the capital sentencing proceeding in order to avoid evidence of the
defendant's criminal history was deemed ``the result of reasonable
professional judgment,'' and prejudice could not be shown because ``the
overwhelming aggravating factors'' outweighed whatever evidence of good
character could have been presented.\244\ In Hill v. Lockhart,\245\ the
Court applied the Strickland test to attorney decisions in plea
bargaining, holding that a defendant must show a reasonable probability
that, but for counsel's errors, he would not have pleaded guilty.
\242\466 U.S. at 689-91. The obligation is to stay within the
wide range of legitimate, lawful, professional conduct; there is no
obligation to assist the defendant in presenting perjured testimony. Nix
v. Whiteside, 475 U.S. 157 (1986). See also Georgia v. McCollum, 112 S.
Ct. 2348 (1992) (no right to carry out through counsel the racially
discriminatory exclusion of jurors during voir dire). Also,
``effective'' assistance of counsel does not guarantee the accused a
``meaningful relationship'' of ``rapport'' with his attorney such that
he is entitled to a continuance in order to change attorneys during a
trial. Morris v. Slappy, 461 U.S. 1 (1983). See also Jones v. Barnes,
463 U.S. 745 (1983) (no obligation to present on appeal all nonfrivolous
issues requested by defendant; appointed counsel may exercise his
professional judgement in determining which issues are best raised on
\243\466 U.S. at 694.
\244\466 U.S. at 699. Accord, Darden v. Wainwright, 477 U.S. 168
(1986) (decision not to introduce mitigating evidence).
\245\474 U.S. 52 (1985).
There are times when prejudice may be presumed, i.e. there can
be ``circumstances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is
unjustified.''\246\ These situations include actual or constructive
denial of counsel, and denial of such basics as the right to effective
cross-examination. However, ``[a]part from circumstances of that
. . . there is generally no basis for finding a Sixth Amendment
violation unless the accused can show [prejudice].''\247\
\246\United States v. Cronic, 466 U.S. 648, 658 (1984).
\247\466 U.S. at 659 n.26 (finding no inherently prejudicial
circumstances in appointment of real estate attorney with no criminal
law experience to defend mail fraud ``check kiting'' charges with
approximately one month's preparation time). On the other hand, an
attorney's failure to advise a client of his right to appeal, and of his
right to an attorney on appeal, amounts to ``a substantial showing'' of
denial of the right to effective counsel. Lozada v. Deeds, 498 U.S. 430,
432 (1991) (per curiam).
Self-Representation.--The Court has held that the Sixth
Amendment, in addition to guaranteeing the right to retained or
appointed counsel, also guarantees a defendant the right to represent
himself.\248\ It is a right the defendant must adopt knowingly and
intelligently; under some circumstances the trial judge may deny the
authority to exercise it, as when the defendant simply lacks the
competence to make a knowing or intelligent waiver of counsel or when
his self-representation is so disruptive of orderly procedures that the
judge may curtail it.
\248\Faretta v. California, 422 U.S. 806 (1975). Even if the
defendant exercises his right to his detriment, the Constitution
ordinarily guarantees him the opportunity to do so. A defendant who
represents himself cannot thereafter complain that the quality of his
defense denied him effective assistance of counsel. Id. at 834-35 n.46.
Related to the right of self-representation is the right to testify in
one's own defense. Rock v. Arkansas, 483 U.S. 44 (1987) (per se rule
excluding all hypnotically refreshed testimony violates right).
The essential elements of self-representation were spelled out
in McKaskle v. Wiggins,\249\ a case involving the self-represented
defendant's rights vis-a-vis ``standby counsel'' appointed by the trial
court. The ``core of the Faretta right'' is that the defendant ``is
entitled to preserve actual control over the case he chooses to present
to the jury,'' and consequently, standby counsel's participation
``should not be allowed to destroy the jury's perception that the
defendant is representing himself.''\250\ But participation of standby
counsel even in the jury's presence and over the defendant's objection
does not violate the defendant's Sixth Amendment rights when serving the
basic purpose of aiding the defendant in complying with routine
courtroom procedures and protocols and thereby relieving the trial judge
of these tasks.\251\
\249\465 U.S. 168 (1984).
\250\Id. at 178.
\251\Id. at 184.
Right to Assistance of Counsel in Nontrial Situations
Judicial Proceedings Before Trial.--Dicta in Powell v.
Alabama\252\ indicated that ``during perhaps the most critical period of
the proceedings . . . that is to say, from the time of their arraignment
until the beginning of their trial, when consultation, thor
oughgoing investigation and preparation [are] vitally important, the
defendants . . . [are] as much entitled to such aid [of counsel] during
that period as at the trial itself.'' This language has gradually been
expanded upon and the Court has developed a concept of ``a critical
stage in a criminal proceeding'' as indicating when the defendant must
be represented by counsel. Thus, in Hamilton v. Alabama,\253\ the Court
noted that arraignment under state law was a ``critical stage'' because
the defense of insanity had to be pleaded then or lost, pleas in
abatement had to be made then, and motions to quash on the ground of
racial exclusion of grand jurors or that the grand jury was improperly
drawn had to be made then. White v. Maryland\254\ set aside a conviction
obtained at a trial at which defendant's plea of guilty, entered at a
preliminary hearing where he was without counsel, was introduced as
evidence against him at trial. Finally in Coleman v. Alabama,\255\ the
Court denominated a preliminary hearing as a ``critical stage''
necessitating counsel even though the only functions of the hearing were
to determine probable cause to warrant presenting the case to a grand
jury and to fix bail; no defense was required to be presented at that
point and nothing occurring at the hearing could be used against the
defendant at trial. The Court hypothesized that a lawyer might by
skilled examination and cross-examination expose weaknesses in the
prosecution's case and thereby save the defendant from being bound over,
and could in any event preserve for use in 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 better trial preparation; and he could influence the court
in such matters as bail and psychiatric examination. The result seems to
be that reached in pre-Gideon cases in which a defendant was entitled to
counsel if a lawyer might have made a difference.\256\
\252\287 U.S. 45, 57 (1932).
\253\368 U.S. 52 (1961).
\254\373 U.S. 59 (1963).
\255\399 U.S. 1 (1970). Justice Harlan concurred solely because
he thought the precedents compelled him to do so, id. at 19, while Chief
Justice Burger and Justice Stewart dissented. Id. at 21, 25. Inasmuch as
the role of counsel at the preliminary hearing stage does not
necessarily have the same effect upon the integrity of the factfinding
process as the role of counsel at trial, Coleman was denied retroactive
effect in Adams v. Illinois, 405 U.S. 278 (1972). Justice Blackmun
joined Chief Justice Burger in pronouncing Coleman wrongly decided. Id.
at 285, 286. Hamilton and White, however, were held to be retroactive in
Arsenault v. Massachusetts, 393 U.S. 5 (1968).
\256\Compare Hudson v. North Carolina, 363 U.S. 697 (1960), with
Chewning v. Cunningham, 368 U.S. 443 (1962), and Carnley v. Cochran, 369
U.S. 506 (1962).
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.\257\ It was held in
Spano v. New York\258\ that under the totality of circumstances a
confession obtained in a post-indictment interrogation was involuntary,
and four Justices wished to place the holding solely on the basis that
post-indictment interrogation in the absence of defendant's lawyer was a
denial of his right to assistance of counsel. That holding was made in
Massiah v. United States,\259\ in which federal officers caused an
informer to elicit from the already-indicted defendant, who was
represented by a lawyer, incriminating admissions which were secretly
overheard over a broadcasting unit. Then, in Escobedo v. Illinois,\260\
the Court held that preindictment interrogation was a violation of the
Sixth Amendment. But Miranda v. Arizona\261\ switched from reliance on
the Sixth Amendment to the Fifth Amendment's self-incrimination clause,
although that case still placed great emphasis upon police warnings with
regard to counsel and foreclosure of interrogation in the absence of
counsel without a valid waiver by defendant.
\257\Crooker v. California, 357 U.S. 433 (1958) (five-to-four
decision); Cicenia v. Lagay, 357 U.S. 504 (1958) (five-to-three).
\258\360 U.S. 315 (1959).
\259\377 U.S. 201 (1964). See also McLeod v. Ohio, 381 U.S. 356
(1965) (applying Massiah to the States, in a case not involving trickery
but in which defendant was endeavoring to cooperate with the police).
But see Hoffa v. United States, 385 U.S. 293 (1966). Cf. Milton v.
Wainwright, 407 U.S. 371 (1972).
\260\378 U.S. 478 (1964).
\261\384 U.S. 436 (1966).
Massiah was reaffirmed and in some respects expanded by the
Court. Thus, in Brewer v. Williams,\262\ the right to counsel was found
violated when police elicited from defendant incriminating admissions
not through formal questioning but rather through a series of
conversational openings designed to play on the defendant's known
weakness. The police conduct occurred in the post-arraignment period in
the absence of defense counsel and despite assurances to the attorney
that defendant would not be questioned in his absence. United States v.
Henry\263\ held that government agents violated the Sixth Amendment
right to counsel when they contacted the cellmate of an indicted
defendant and promised him payment under a contingent fee arrangement if
he would ``pay attention'' to incriminating remarks initiated by the
defendant and others. The Court concluded that even if the government
agents did not intend the informant to take affirmative steps to elicit
nating statements from the defendant in the absence of counsel, the
agents must have known that result would follow.
\262\430 U.S. 387 (1977). Chief Justice Burger and Justices
White, Blackmun, and Rehnquist dissented. Id. at 415, 429, 438. Compare
Rhode Island v. Innis, 446 U.S. 291 (1980), decided on self-
incrimination grounds under similar facts.
\263\447 U.S. 264 (1980) Justices Blackmun, White, and Rehnquist
dissented. Id. at 277, 289. But cf. Weatherford v. Bursey, 429 U.S. 545
The Court has extended the Edwards v. Arizona\264\ rule
protecting in-custody requests for counsel to post-arraignment
situations where the right derives from the Sixth Amendment rather than
the Fifth. Thus, the Court held in Michigan v. Jackson, ``if police
initiate interrogation after a defendant's assertion, at an arraignment
or similar proceeding, of his right to counsel, any waiver of the
defendant's right to counsel for that police-initiated interrogation is
invalid.''\265\ The Court concluded that ``the reasons for prohibiting
the interrogation of an uncounseled prisoner who has asked for the help
of a lawyer are even stronger after he has been formally charged with an
offense than before.''\266\ The protection, however, is not as broad
under the Sixth Amendment as it is under the Fifth. While Edwards has
been extended to bar custodial questioning stemming from a separate
investigation as well as questioning relating to the crime for which the
suspect was arrested,\267\ this extension does not apply for purposes of
the Sixth Amendment right to counsel. The Sixth Amendment right is
``offense-specific,'' and so also is ``its Michigan v. Jackson effect of
invalidating subsequent waivers in police-initiated interviews.''\268\
Therefore, while a defendant who has invoked his Sixth Amendment right
to counsel with respect to the offense for which he is being prosecuted
may not waive that right, he may waive his Miranda-based right not to be
interrogated about unrelated and uncharged offenses.
\264\451 U.S. 477 (1981).
\265\475 U.S. 625, 636 (1986).
\266\475 U.S. at 631. If a prisoner does not ask for the
assistance of counsel, however, and voluntarily waives his rights
following a Miranda warning, these reasons disappear. Moreover, although
the right to counsel is more difficult to waive at trial than before
trial, ``whatever standards suffice for Miranda's purposes will also be
sufficient [for waiver of Sixth Amendment rights] in the context of
postindictment questioning.'' Patterson v. Illinois, 487 U.S. 285, 298
\267\Arizona v. Roberson, 486 U.S. 675 (1988).
\268\McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The reason
why the right is ``offense-specific'' is that ``it does not attach until
a prosecution is commenced.'' Id.
The remedy for violation of the Sixth Amendment rule is
exclusion from evidence of statements so obtained.\269\ And, while the
basis for the Sixth Amendment exclusionary rule--to protect the right to
a fair trial--differs from that of the Fourth Amendment rule--to deter
illegal police conduct--exceptions to the Fourth Amendment's
exclusionary rule can apply as well to the Sixth. In Nix v.
Williams,\270\ the Court held the ``inevitable discovery'' exception
applicable to defeat exclusion of evidence obtained as a result of an
interrogation violating the accused's Sixth Amendment rights.
``Exclusion of physical evidence that would inevitably have been
discovered adds nothing to either the integrity or fairness of a
criminal trial.''\271\ Also, an exception to the Sixth Amendment
exclusionary rule has been recognized for the purpose of impeaching the
defendant's trial testimony.\272\
\269\See Michigan v. Jackson, 475 U.S. 625 (1986).
\270\467 U.S. 431 (1984).
\271\467 U.S. at 446.
\272\Michigan v. Harvey, 494 U.S. 344 (1990) (postarraignment
statement taken in violation of Sixth Amendment is admissible to impeach
defendant's inconsistent trial testimony).
Lineups and Other Identification Situations.--The concept of the
``critical stage'' was again expanded and its rationale formulated in
United States v. Wade,\273\ which, with Gilbert v. California,\274\ held
that lineups are a critical stage and that in-court identification of
defendants based on out-of-court lineups or show-ups without the
presence of defendant's counsel is inadmissible. The Sixth Amendment
guarantee, said Justice Brennan, was intended to do away with the
common-law limitation of assistance of counsel to matters of law,
excluding matters of fact. The abolition of the fact-law distinction
took on new importance due to the changes in investigation and
prosecution since adoption of the Sixth Amendment. ``When the Bill of
Rights was adopted there were no organized police forces as we know them
today. The accused confronted the prosecutor and the witnesses against
him and the evidence was marshalled, largely at the trial itself. In
contrast, today's law enforcement machinery involves critical
confrontations of the accused by the prosecution at pretrial proceedings
where the results might well settle the accused's fate and reduce the
trial itself to a mere formality. In recognition of these realities of
modern criminal prosecution, our cases have construed the Sixth
Amendment guarantee to apply to `critical' stages of the proceedings.
. . . The plain wording of this guarantee thus encompasses counsel's
assistance whenever necessary to assure a meaningful `defence.'''\275\
\273\388 U.S. 218 (1967).
\274\388 U.S. 263 (1967).
\275\United States v. Wade, 388 U.S. 218, 224-25 (1967)
``It is central to [the principle of Powell v. Alabama] that in
addition to counsel's presence at trial, the accused is guaranteed that
he need not stand alone against the State at any stage of the
prosecution, formal or informal, in court or out, where counsel's
absence might derogate from the accused's right to a fair trial.''\276\
Counsel's presence at a lineup is constitutionally necessary because the
lineup stage is filled with numerous possibilities for errors, both
inadvertent and intentional, which cannot adequately be discovered
and remedied at trial.\277\ However, because there was less certainty
and frequency of possible injustice at this stage, the Court held that
the two cases were to be given prospective effect only; more egregious
instances, where identification had been based upon lineups conducted in
a manner that was unnecessarily suggestive and conducive to irreparable
mistaken identification, could be invalidated under the due process
clause.\278\ The Wade-Gilbert rule is inapplicable to other methods of
obtaining identification and other evidentiary material relating to the
defendant, such as blood samples, handwriting exemplars, and the like,
because there is minimal risk that the absence of counsel might derogate
from the defendant's right to a fair trial.\279\
\276\Id. at 226 (citations omitted).
\277\Id. at 227-39. Previously, the manner of an extra-judicial
identification affected only the weight, not the admissibility, of
identification testimony at trial. Justices White, Harlan, and Stewart
dissented, denying any objective need for the Court's per se rule and
doubting its efficacy in any event. Id. at 250.
\278\Stovall v. Denno, 388 U.S. 293 (1967).
\279\Gilbert v. California, 388 U.S. 263, 265-67 (1967)
(handwriting exemplars); Schmerber v. California, 384 U.S. 757, 765-66
(1966) (blood samples).
In United States v. Ash,\280\ the Court redefined and modified
its ``critical stage'' analysis. According to the Court, the ``core
purpose'' of the guarantee of counsel is to assure assistance at trial
``when the accused was confronted with both the intricacies of the law
and the advocacy of the public prosecutor.'' But assistance would be
less than meaningful in the light of developments in criminal
investigation and procedure if it were limited to the formal trial
itself; therefore, counsel is compelled at ``pretrial events that might
appropriately be considered to be parts of the trial itself. At these
newly emerging and significant events, the accused was confronted, just
as at trial, by the procedural system, or by his expert adversary, or by
both.''\281\ Therefore, unless at the pretrial stage there was involved
the physical presence of the accused at a trial-like confrontation at
which the accused requires the guiding
hand of counsel, the Sixth Amendment does not guarantee the assistance
\280\413 U.S. 300 (1973). Justices Brennan, Douglas, and
Marshall dissented. Id. at 326.
\281\Id. at 309-10, 312-13. Justice Stewart, concurring on other
grounds, rejected this analysis, id. at 321, as did the three
dissenters. Id. at 326, 338-344. ``The fundamental premise underlying
all of this Court's decisions holding the right to counsel applicable at
``critical' pretrial proceedings, is that a `stage' of the prosecution
must be deemed `critical' for the purposes of the Sixth Amendment if it
is one at which the presence of counsel is necessary `to protect the
fairness of the trial itself.''' Id. at 339 (Justice Brennan
dissenting). Examination of defendant by court-appointed psychiatrist to
determine his competency to stand trial, after his indictment, was a
``critical'' stage, and he was entitled to the assistance of counsel
before submitting to it. Estelle v. Smith, 451 U.S. 454, 469-71 (1981).
Constructive notice is insufficient to alert counsel to psychiatric
examination to assess future dangerousness of an indicted client.
Satterwhite v. Texas, 486 U.S. 249 (1987) (also subjecting Estelle v.
Smith violations to harmless error analysis in capital cases).
Since the defendant was not present when witnesses to the crime
viewed photographs of possible guilty parties, since therefore there was
no trial-like confrontation, and since the possibilities of abuse in a
photographic display are discoverable and reconstructable at trial by
examination of witnesses, an indicted defendant is not entitled to have
his counsel present at such a display.\282\
\282\413 U.S. at 317-21. On the due process standards of
identification procedure, see infra p.1752.
Both Wade and Gilbert had already been indicted and counsel had
been appointed to represent them when their lineups were conducted, a
fact noted in the opinions and in subsequent ones,\283\ but the cases in
which the rulings were denied retroactive application involved
preindictment lineups.\284\ Nevertheless, in Kirby v. Illinois\285\ the
Court held that no right to counsel existed with respect to lineups that
precede some formal act of charging a suspect. The Sixth Amendment does
not become operative, explained Justice Stewart's plurality opinion,
until ``the initiation of adversary judicial criminal proceedings--
whether by way of formal charge, preliminary hearings, indictment,
information, or arraignment. . . . The initiation of judicial criminal
proceedings is far from a mere formalism. It is the starting point of
our whole system of adversary criminal justice. For it is only then that
the Government has committed itself to prosecute, and only then that the
adverse positions of Government and defendant have solidified. It is
then that a defendant finds himself faced with the prosecutorial forces
of organized society, and immersed in the intricacies of substantive and
procedural criminal law. It is this point, therefore, that marks the
commencement of the `criminal prosecutions' to which alone the explicit
guarantees of the Sixth Amendment are applicable.''\286\ The
Court's distinguishing of the underlying basis for Miranda v.
Arizona\287\ left that case basically unaffected by Kirby, but it
appears that Escobedo v. Illinois,\288\ and perhaps other cases, is
greatly restricted thereby.
\283\United States v. Wade, 388 U.S. 218, 219, 237 (1967);
Gilbert v. California, 388 U.S. 263, 269, 272 (1967): Simmons v. United
States, 390 U.S. 377, 382-83 (1968).
\284\Stovall v. Denno, 388 U.S. 293 (1967); Foster v.
California, 394 U.S. 440 (1969); Coleman v. Alabama, 399 U.S. 1 (1970).
\285\406 U.S. 682, 689 (1972).
\286\Id. at 689-90. Justices Brennan, Douglas, and Marshall,
dissenting, argued that it had never previously been doubted that Wade
and Gilbert applied in preindictment lineup situations and that in any
event the rationale of the rule was no different whatever the formal
status of the case. Id. at 691. Justice White, a dissenter in Wade and
Gilbert, dissented simply on the basis that those two cases controlled
this one. Id. at 705. Indictment, as the quotation from Kirby indicates,
is not a necessary precondition. Any initiation of judicial proceedings
suffices. E.g., Brewer v. Williams, 430 U.S. 387 (1977) (suspect had
been seized pursuant to an arrest warrant, arraigned, and committed by
court). United States v. Gouveia, 467 U.S. 180 (1984) (Sixth Amendment
attaches as of arraignment--there is no right to counsel for prison
inmates placed under administrative segregation during a lengthy
investigation of their participation in prison crimes).
\287\``[T]he Miranda decision was based exclusively upon the
Fifth and Fourteenth Amendment privilege against compulsory self-
incrimination, upon the theory that custodial interrogation is
inherently coercive.'' 406 U.S. 688, (Emphasis by Court).
\288\``But Escobedo is not apposite here for two distinct
reasons. First, the Court in retrospect perceived that the `prime
purpose' of Escobedo was not to vindicate the constitutional right to
counsel as such, but, like Miranda, `to guarantee full effectuation of
the privilege against self-incrimination. . . .' Johnson v. New Jersey,
384 U.S. 719, 729. Secondly, and perhaps even more important for purely
practical purposes, the Court has limited the holding of Escobedo to its
own facts, Johnson v. New Jersey, supra, at 733-34, and those facts are
not remotely akin to the facts of the case before us.'' Id. at 689. But
see id. at 693 n.3 (Justice Brennan dissenting).
Post-Conviction Proceedings.--Counsel is required at the
sentencing stage,\289\ and the Court has held that where sentencing was
deferred after conviction and the defendant was placed on probation, he
must be afforded counsel at a hearing on revocation of probation and
imposition of the deferred sentence.\290\ Beyond this stage, however, it
would appear that the issue of counsel at hearings on the granting of
parole or probation, the revocation of parole which has been imposed
following sentencing, and prison disciplinary hearings will be
determined according to due process and equal protection standards
rather than by further expansion of the Sixth Amendment.\291\
\289\Townsend v. Burke, 334 U.S. 736 (1948).
\290\Mempa v. Rhay, 389 U.S. 128 (1967) (applied retroactively
in McConnell v. Rhay, 393 U.S. 2 (1968)).
\291\Counsel is not a guaranteed right in prison disciplinary
proceedings. Wolff v. McDonnell, 418 U.S. 539, 560-70 (1974); Baxter v.
Palmigiano, 425 U.S. 308, 314-15 (1976). Other cases are assembled infra
under analysis of the Fourteenth Amendment due process clause.
Noncriminal and Investigatory Proceedings.--Commitment
proceedings which lead to the imposition of essentially criminal
punishment are subject to the due process clause and require the
assistance of counsel.\292\ A state administrative investigation by a
fire marshal inquiring into the causes of a fire was held not to be a
criminal proceeding and hence, despite the fact that the petitioners had
been committed to jail for noncooperation, not the type of hearing at
which counsel was requisite.\293\ Another decision refused to extend the
right to counsel to investigative proceedings antedating a criminal
prosecution, and sustained the contempt conviction of private detectives
who refused to testify before a judge
authorized to conduct a non-prosecutorial, fact-finding inquiry akin to
a grand jury proceeding, and who based their refusal on the ground that
their counsel were required to remain outside the hearing room.\294\
\292\Specht v. Patterson, 386 U.S. 605 (1967).
\293\In re Groban, 352 U.S. 330 (1957). Four Justices dissented.
\294\Anonymous v. Baker, 360 U.S. 287 (1959). Four Justices