Bill of Rights at 225: Fundamental Elements of a Fair Trial

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Senior Legal Research Fellow
Edwin Meese III Center for Legal and Judicial Studies

If you ever suffer the misfortune of being charged with a serious crime, you will be glad that the Sixth Amendment exists. It contains the minimal requirements necessary to prevent the federal and state governments from convicting and punishing an innocent person or from railroading a defendant, whether guilty or innocent, by using a Soviet-era "show trial" as the predicate for throwing him into prison.

Let's walk through the text of the amendment to see how it works.

"In all criminal prosecutions, the accused shall enjoy . . .": That phrase identifies and limits the type of proceedings at stake, as well as the person whom the amendment protects. The amendment applies only to "criminal prosecutions," not to civil cases or administrative proceedings. Of course, in 1791 there was no administrative state as there is today, but there were civil lawsuits, so the limitation to criminal cases was quite purposeful. So, too, was the limitation that only "the accused" can invoke the amendment's rights.

". . . the right to a speedy and public trial . . .": That phrase gives a defendant three separate rights. Most important, it prohibits the "Sentence first! Verdict afterward" sequence proposed by the Queen of Hearts. It also means that there must be a proceeding that can be deemed a "trial"; a mob-dominated proceeding does not count. But the trial must also be "speedy" and "public." A speedy trial protects a defendant from languishing in jail forever before he can prove his innocence. A public trial keeps the government from using a sham proceeding hidden from public view.

". . . by an impartial jury . . .": The framers' generation saw the right to a jury trial as the fundamental guarantee of fairness. Before the American Revolution, the English crown proposed that trials be held in admiralty courts, where no jury was used. The revolutionary generation objected strongly to being tried by a judge hand-selected by the king and made sure that only the members of a defendant's community could find him guilty.

". . . of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . .": That provision keeps the government from trying a New Yorker in Harrisburg for a crime that occurred in the Meadowlands (a valuable guarantee, given the strong rivalry between Giants and Eagles fans). It also keeps the government from retroactively changing the size of a "district" to include the entire state and trying a defendant in Pittsburgh for a crime that occurred in Philly.

". . . and to be informed of the nature and cause of the accusation . . .": The government cannot bring a person to trial without telling him why - that is, without informing him what crime he is alleged to have committed. Otherwise, a defendant would not know what defense to assert ("I was in a different state when the horse was stolen" vs. "I bought the horse lawfully") or what witnesses to produce (someone who saw the defendant in the other state vs. the person who sold him the horse).

". . . to be confronted with the witnesses against him . . .": This clause guarantees a defendant the right to confront his accusers. Why? Well, it is more difficult to lie to someone's face than to do so in a letter. Also, forcing the government to bring its witnesses into court, where they are sworn to testify truthfully, not only deters them from lying, but also enables the jury to decide whether they are, in fact, lying.

". . . to have compulsory process for obtaining witnesses in his favor . . .": How often do we hear people say, "I don't want to get involved," perhaps because they fear retaliation by the government if they testify for a defendant? This provision gives the accused the right to force those people to appear as witnesses by enabling him to subpoena them for his defense.

". . . and to have the Assistance of Counsel for his defence.": Trials are complex. It's a given that the government will be represented by a prosecutor trained in the law, so it's only fair to allow the defendant to have a lawyer as his representative. This clause guarantees a defendant a competent attorney to be his champion in court. In fact, if the defendant cannot afford a lawyer, the government will provide him one.

Do those clauses prevent the conviction of an innocent person? Are other protections also required? The answers are "No" and "Yes," respectively. Other laws, such as rules of evidence, are also necessary.

But the Sixth Amendment, in 1791 and today, guarantees the fundamental elements of a fair trial, guarantees that, while not sufficient, certainly are necessary.

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