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6th Amendment Protections – Criminal Law

Cite this article as: Jason Mance Gordon, "6th Amendment Protections – Criminal Law," in The Business Professor, updated January 5, 2015, last accessed March 29, 2020, https://thebusinessprofessor.com/knowledge-base/6th-amendment-protections-criminal-law/.
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6th Amendment Criminal Law Protections
This video explains the various criminal law protections provided by the 6th Amendment of the US Constitution.

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What protections does the 6th Amendment provide to individuals subject to criminal charges?

The 6th Amendment provides numerous procedural protections for someone who is subject to the prosecutorial process. These protections include:

  • Speedy and Public Trial – An individual, upon being charged with a crime, may request an expedited trial before a jury of her peers. This right prevents unduly long detention without proceeding with prosecution.
  • Trial by Jury – The 6th and 7th Amendments to the US Constitution allow for trial by jury. This right does not extend to administrative hearings, certain Article I hearings, juvenile proceedings, and certain misdemeanor cases.
  • Informed of Charges – The 6th Amendment ensures that individuals will be fully informed of the nature and extent of charges brought against them. If the Government fails to give notice of charges arising out of the same allegedly criminal conduct, the right to later bring those charges may be forfeited.
  • Confront One’s Accuser – Anyone accused of a crime has a right to confront (and cross-exam in court) anyone accusing her of the charged criminal activity.
  • Right of Subpoena – The court provides any defendant with the opportunity to subpoena witnesses to give testimony or evidence at trial if those witnesses or evidence are relevant to the charged criminal conduct.
  • Right to Counsel – Defendants have the right to be represented by a licensed attorney in any case that has the possibility of imprisonment. If an individual cannot afford an attorney, the government will provide the defendant with a free public attorney.

The rights afforded under the 6th Amendment have been interpreted broadly to ensure adequate protection of a criminal defendant’s rights.

Discussion: Do you believe that all of the above protections are warranted for individuals accused of crimes? Why is it important to allow a defendant the option of electing to have a speedy trial? Is there any justification for denying the right to jury trial in certain administrative and juvenile cases? How does the right to be informed of charges against a defendant have the effect of protecting against multiple prosecutions for a single course of conduct? Do you believe that a defendant should always have the right to confront her accuser (such as in rape or molestation cases)? How broad should the right of subpoena be and should it balance the rights of those subpoenaed against those of the defendant? Is it, and if so, why is it important to afford a defendant the right to legal counsel throughout the prosecution process (beginning at the point of arrest)?

Discussion Input

Some hold the opinion that criminals (or suspected criminals) deserve very little in the form of protections and defenses. Others take a strong view that individual protections are necessary to avoid abuses of power by the government. Allowing for the election of a speedy trial keeps the government from detaining someone indefinitely without bringing charges. The ability to deny a jury trial in some instances is linked to the administration of justice. Children, for example, do not have a public criminal record. The theory behind punishing misconduct by children is different from that of an adult. The right to be informed of the charges against you ensures that the government cannot use an individual’s misunderstanding of the charges and conduct in question. Some would say that the right to confront one’s accuser is overly traumatic for victims. Others feel that this constitutional protection is absolutely necessary before subjecting someone to criminal punishment. The right to subpoena is used to uncover evidence in a case. When used to compel evidence from the accused, some would argue that it comes too close to compelled testimony. Others argue that the request for existing records bears little relationship to testimony and is rightly not protected. Most would agree that affording a defendant competent legal counsel is necessary. Some, however, will demonize the defense attorney presenting a case in support of her client. Those who support the need and justification for defense attorneys focus on the objective of preserving the legal system and the protections afforded by the Constitution.

Practice Question: Bernard was arrested on charges of conspiracy to commit murder. His accomplice, Abby, was also arrested but skipped bail and left the country. Without Abby, the prosecution will have a difficult time proving conspiracy against Bernard. The prosecution seeks to delay Bernard’s trial until international police are able to locate and detain Alice. What 6th Amendment rights can Bernard assert to aid in his defense?

Proposed Answer

  • The government will not be able to do this if Bernard requests a speedy trial. The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury and the right to know who your accusers are and the nature of the charges and the evidence against you. The 6th Amendment affords criminal defendants seven discrete personal liberties;
    • The right to a speedy trial. – The speedy trial clause was designed by the founding fathers to prevent defendants from languishing in jail for an indefinite period before trial, to minimize the time in which a defendant’s life is disrupted and burdened by the anxiety and scrutiny accompanying public criminal proceedings, and to reduce the chances that a prolonged delay before trial will impair the ability of the accused to prepare a defense.
    • Public trial – The Constitution provides that every criminal defendant is entitled to a public hearing. This is aimed as acting as a check against malevolent prosecutions, corrupt or malleable judges, and perjurious witnesses.
    • Right to trial by an impartial jury. – This entitles defendants to a jury pool that represents a fair cross section of the community. This is aimed at ensuring that during the deliberations, the members of the jury are not easily influenced or swayed in making the decision.
    • Notice of pending criminal charges – The 6th Amendment guarantees defendants the right to be informed of the nature and cause of the accusations against them. First, defendants must receive notice of any criminal accusations that the government has lodged against them through an indictment, information, complaint, or other formal charge. Second, defendants may not be tried, convicted or sentenced for a crime that materially varies from the crime set forth in the formal charge.
    • Confrontation of adverse witnesses – The 6th Amendment guarantees defendants the right to be confronted by witness who offer testimony or evidence against them. The confrontation clause has two prongs. The first prong assures defendants the right to be presented during all critical stages of trial, allowing them to hear the evidence offered by the prosecution, to consult with their attorney and otherwise to participate in their defense. The second guarantees defendants the right to face adverse witnesses in person and to subject them to cross-examination.
    • Right to counsel. – A defendant’s 6th Amendment right to counsel attaches when the government initiates adversarial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. https://legal-dictionary.thefreedictionary.com/Sixth+Amendment

Academic Research

Hessick, Carissa Byrne and Berry, William W., Sixth Amendment Sentencing after Hurst (February 28, 2018). UCLA Law Review, Vol. 66, 2018 Forthcoming; UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3131906

Moore, Janet, The Antidemocratic Sixth Amendment (June 8, 2016). 91 Washington Law Review 1705 (2016); U of Cincinnati Public Law Research Paper No. 16.10. Available at SSRN: https://ssrn.com/abstract=2791931

Merritt, Deborah Jones and Simmons, Ric, The Sixth Amendment and Hearsay: An Introduction for Students and Practitioners (August 17, 2011). Ohio State Public Law Working Paper No. 150. Available at SSRN: https://ssrn.com/abstract=1911429 or http://dx.doi.org/10.2139/ssrn.1911429

Mulroy, Steven J., The Bright Line’s Dark Zone: Pre-Charge Attachment of the 6th Amendment Right to Counsel (August 10, 2016). University of Memphis Legal Studies Research Paper No. 159. Available at SSRN: https://ssrn.com/abstract=2821179 or http://dx.doi.org/10.2139/ssrn.2821179

Logan, Wayne A., False Massiah: The Sixth Amendment Revolution That Wasn’t (2017). 50 Texas Tech. L. Rev. 153 (2017); FSU College of Law, Public Law Research Paper No. 873. Available at SSRN: https://ssrn.com/abstract=3144033

Tinto, Katie, Wavering on Waiver: Montejo v. Louisiana and the Sixth Amendment Right to Counsel (October 26, 2011). American Criminal Law Review, Vol. 48, p. 1335, 2011; NYU School of Law, Public Law Research Paper No. 11-78. Available at SSRN: https://ssrn.com/abstract=1949804

Ruebner, Ralph and Goryunov, Eugene, Loss of Sixth Amendment Confrontation Rights: Forfeiture Triggered by Voluntary Wrongful Conduct (March 10, 2008). Available at SSRN: https://ssrn.com/abstract=1104720 or http://dx.doi.org/10.2139/ssrn.1104720

Epstein, Timothy Liam, The Impact and Implications of U.S. v. Booker: The Sixth Amendment Versus Mandatory Sentencing Guidelines (March 1, 2005). Chicago Bar Association Record, February-March 2005. Available at SSRN: https://ssrn.com/abstract=1333663

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