The Amendments Series: The Hope of the Accused


“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.”

This is the Sixth Amendment and is the only right guaranteed both in the Bill of Rights and the Constitution.

Alexander Hamilton said of the Sixth Amendment: “The friends and adversaries of the plan of the convention, if they agree on nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists of this: the former argued it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”

This amendment is essential to a free society, to law and order, and to protecting citizens from each other and likewise, from government. It was included as a way to guarantee that criminal prosecutions were accurate, fair, and legitimate.

It has many moving parts to it, so I chose to break it up into six key points to help you understand more clearly.


One: Historical Context

A brief historical context is necessary to understanding from what the Sixth Amendment was birthed. Originally, before the new Constitution, there were very few police, just local sheriffs. Most crimes were reported and brought to the courts by the victims. Few people used or needed legal counsel. The juries were usually made up of twelve ordinary men, local citizens, who knew the individuals involved in the case. The juries knew if the charges against the defendant would result in the death penalty or not (and many did).

And I quote: “Jurors looked witnesses in the eye and debated both whether a defendant was factually guilty and whether he deserved mercy. They checked the government’s power to punish and applied the conscience of the community in the public eye, assuring everyone that justice had been done swiftly, impartially, and fairly.”

Consider the language here. The jury existed to act as the conscience of the community. The founders took this concept and amplified it, hoping to “strengthen this vigorous adversarial process”. Government is too prone to abusing power and therefore it’s power, again, was to be mitigated by the conscience of the community, the citizenry disconnected from the ambition of government.

Think for a moment how active, engaged and educated the founders expected the citizenry to be. In the founding era, serving on a jury would have been considered honorable work and an essential part of one’s citizenship. Today it’s avoided at all costs and seen as a drain on one’s life.

Two: Right to a Speedy and Public Trial

Another apprehension is that a majority cannot be induced to adopt the trial by jury; and I consider that as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.

— Thomas Jefferson

The founders didn’t want accused criminals languishing while they awaited their trial, so providing a speedy and public trial was the duty of government.

Think about it. If someone cannot afford bail, they are held against their will until their trial. They are innocent until proven guilty and yet are still detained. In prior governments, people had been held against their will, awaiting a trial that never materialized. The government was able to circumvent the system by merely claiming to be fair while never giving the individual the trial they were promised. The founders did not want this.

So, they included that the trial must be speedy. Originally, the Court established that failure to begin a trial in a timely manner meant that the prosecution should be completely dismissed. However, the Courts tend to “interpret” speedy rather loosely and some trials are permissibly delayed for years.

All trials, aside from very special cases, are required to be public. Fortunately, this has not changed and helps prevent abuse that might otherwise occur if trials were private.

Three: Impartial Jury

The Sixth Amendment protects an individual’s right to a trial by an “impartial jury”. According to most states, a jury consists of 6-12 people. There is some debate over whether or not the defense and prosecution should be able to stack the jury one way or another, but at this time, both the defense and prosecution must approve of the jury members to make sure that the jury is indeed, impartial. According to the Constitution Center, “A jury must come from a pool representing a fair cross-section of the local community.” Try this source to learn more about how juries are selected.

There is further debate whether or not the Sixth Amendment entitles defendants to know or be advised of the sentencing consequences of the charges. Juries in the early years of the founding and before the founding, knew the sentencing consequences of the charges. Apparently, and according to Stephanos Bibas, a U.S. Circuit Court Judge, and Jeffery Fisher, a professor of law at Stanford University, “Consistent with its historical purpose, a jury retains the power to acquit regardless of the strength of the prosecution’s case or to return logically inconsistent verdicts to mitigate punishment.”


Further, they say: “There is good reason to think that the Sixth Amendment should allow defendants to demand that the juries be instructed of the full scope of their power. First and foremost, juries should be told what potential punishments would follow from any given charge. Perhaps juries should also be told explicitly of their nullification power. Fully informed juries would embolden more defendants to proceed to trial. It also would provide a powerful antidote against the modern incentive legislatures have to expose defendants to exorbitant sentences for run-of-the-mill offenses, and thereby, allow prosecutors to threaten to seek such sentences unless defendants plead guilty.”(Remember and reference this quote when you reach point six).

In other words, should the jury be privy to the sentencing consequences of their verdict, they would be able to change their verdict accordingly. There is an argument, as mentioned above, that the punishments for certain crimes far exceed the punishment the crimes should warrant. The system is rigged to prevent cases from going to trial, and jurors are kept in the dark about what their verdicts might produce.

This is fascinating. I’ve always assumed that the jury was not allowed to know the sentencing consequences because of legal or Constitutional reasons, but in my studies for this article, have found that the Constitution does not prohibit it. And historically, it was not the norm for a jury to operate in the dark. Americans should take a harder look at this.

Four: Assistance From Counsel for Defense

It wasn’t until 1963, that the right to “free public counsel” materialized. The Court, in Gideon v. Wainwright (1963), held that such defendants who are facing prison time are entitled to court-appointed lawyers, paid for by the government. The Court also required that the public counsel provide “effective” assistance to the defendant.

Trial by jury, the best of all safeguards for the person, the property, and the fame of every individual.

— Thomas Jefferson

If the defense can afford their defense, they have the right to be represented by an attorney but they can waive that right if they’d rather represent themselves.

It became apparent as I studied this aspect of the amendment, that the need for a lawyer has only increased over time because of the complexity and bureaucratic confusion of the legal system today.

Five: Informed of Nature and Cause of Accusation

The Compulsory Process Clause and the Confrontation Clause give the defendant the right to subpoena witnesses to force them to testify at trial and requires prosecution witnesses to testify under oath and cross examination. Further, prosecution witnesses must testify in the presence of the defendant.

In other words, the defendant has the right to face his or her accuser.

If you notice, the founders were highly concerned about protecting citizens from the abuses of government. They were far more concerned with government’s abuse of the system and ability to punish innocent individuals because of political reasons than they were concerned that violent criminals would be let off because of a court system hampered by regulations.

Six: Changes to the court system

That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.

— George Mason

The courts have undergone major changes over the past few centuries. But the most dramatic change by far has to do with the trial by jury. As I mentioned in point four, the American criminal justice system has slowly become overly complex and time-consuming, hampered by a mass of rules of procedure and evidence. As a result, average Americans citizens would be foolish to try to represent themselves and are usually completely at the mercy of their counsel.

The courts, because of these complications, have introduced a number of shortcuts to eliminate the need for a trial by jury and the need for proof beyond a reasonable doubt. This has caused most legal cases to be handled outside of the courtroom via plea bargaining. Please reference the quote I mentioned in Part Three once again.

Plea bargaining: when the defense pleads guilty in exchange for diminished charges and subsequent sentencing consequences. Friends, understand that this shift from trials by jury to merely plea bargaining outside of court is a dangerous and dramatic shift away from the intentional goals of the founders.

About 95% of defendants plead guilty and enter into to a plea bargain.

95%.

This means that the right to a trial by jury is almost obsolete.


The second change has to do with the incorporation of the Sixth Amendment into state courts rather than simply federal courts.

In the mid-twentieth century, The Supreme Court fully incorporated the Sixth Amendment against the states. This means that, the provisions of the Sixth Amendment no longer applied just to federal courts but to all courts.

Most trials take place in state courts, so this move meant that all of the provisions of the Sixth Amendment now applied to a much more numerous set of cases. This forced the Supreme Court to more specifically spell out the amendment’s protections and apply them to a slew of differing criminal justice systems across the U.S.

The courts have changed far beyond the two examples, but for the sake of time, I’m only mentioning these two.

Conclusion

The rights protected by the Sixth Amendment are so ingrained in our American understanding of law and order, it’s hard to imagine life without them—or even think of justice being handled in any other way. And yet, prior to America and a few others countries, there was no such thing as a fair and speedy trail or a jury to mitigate the power of the government.

You seem…to consider the judges as the ultimate arbiters of all constitutional questions – a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our Judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is, boni judicis est ampliare jurisdictionem, and their power the more dangerous, as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots.

— Thomas Jefferson

How many historical movies/TVshows have you seen a corrupt justice system that infuriated you? I’ve seen plenty. Images flash in my head of monarchs using their arbitrary power to execute innocent lives simply because someone claimed the individual committed a crime, or for political reasons, or any other variety of reasons not associated with the goal of finding out the truth enacting true justice.

Picture your own example of an unjust or corrupt justice system when you think of why our founders wanted the complete opposite of such unfair and arbitrary power.

So, they included the Sixth Amendment. They packed a lot of provisions in this one amendment in an attempt to ensure that American citizens couldn’t be thrown in jail to rot without having a fair chance to defend themselves. It was so important to them that they included this right to a fair trial by jury in the Constitution and the Bill of Rights.

However, so much has changed in our justice system over time. It has never been perfect, nor will it ever be. But it is far from perfect now.

I am troubled that most cases are not handled in court but through bargaining, leaving American citizens at the mercy of lawyers who understand the complex legal system. It has forced average Americans to become slaves to the system and what their counsel tells them. This is not what I believe the founders envisioned.

This means something must change. But change only happens through knowledge. So, I’ve educated myself and now educated you—you must educate others so that we can work for such a change.

I love ending with quotes by the founders. They say what I want to say, but with much more finesse and their words demand more respect. John Adams said:

“Representative government and trial by jury are the heart and lungs of liberty. Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Ah friends, are we not already there?

The Liberty Belle

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