Sixth Amendment to the United States Constitution
The Sixth Amendment (Amendment VI) to the United States Constitution is the part of the United States Bill of Rights that sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.
CRIMINAL PROSECUTIONS
Criminal prosecutions in the District of Columbia1 and in incorporated territories2 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[p.1400] 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
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.10To 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
SIXTH AMENDMENT
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
RIGHT TO A SPEEDY AND PUBLIC TRIAL
Speedy 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[p.1401] into the Virginia Declaration of Rights of 177613 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
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[p.1402] 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 guarantee.20
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 neither[p.1403] 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
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 [p.1404]
Public Trial
“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 public.
“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[p.1405] 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 circumstances.34
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 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
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 access[p.1406] 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
RIGHT TO TRIAL BY IMPARTIAL JURY
Jury Trial
By the time the United States Constitution and the Bill of Rights were drafted and ratified, the institution of trial by jury was almost universally revered, so revered that its history had been traced back to Magna Carta.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 Constitution[p.1407]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
the citizen to one judge or to a group of judges. Fear of unchecked power . . . found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.”48
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[p.1408] a defendant to waive the right and go to trial before a judge alone.51
The Attributes of the Jury.—The Attributes and Function 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 persons53 who must reach a unanimous verdict54 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[p.1409] common–law background58 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 discernible relationship to the purposes of jury trial—the prevention of oppression and the reliability of fact-finding. 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 crime60
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[p.1410] 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
Supplement: [P. 1410, add to text following n.64:]
Certain functions of the jury are likely to remain consistent between the federal and state court systems. For instance, the requirement that a jury find a defendant guilty beyond a reasonable doubt, which had already been established under the Due Process Clause,1 has been held to be a standard mandated by the Sixth Amendment.2The Court further held that the Fifth Amendment Due Process Clause and the Sixth Amendment require that a jury find a defendant guilty of every element of the crime with which he is charged, including questions of mixed law and fact.3Thus, a district court presiding over a case of providing false statements to a federal agency in violation of18U.S.C. Sec.1001erred when it took the issue of the “materiality” of the false statement away from the jury.4Later, however, the Court backed off from this latter ruling, holding that failure to submit the issue of materiality to the jury in a tax fraud case can constitute harmless error.5
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 available65 or by the nature of the offense.66 This line has been adhered to in the application of the Sixth Amendment to the States67 and the Court has now held “that no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment[p.1411] for more than six months is authorized.”68 A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right to a jury trial, even if the aggregate of sentences authorized for the offense exceeds six months.6 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[p.1412] to a jury trial in juvenile proceedings.74 In capital cases there is no requirement that a jury impose the death penalty75or make the factual findings upon which a death sentence must rest.76
Impartial Jury
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 impartial ones.80
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 requirement[p.1413] 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.”83Thus, 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.84While 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
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.86A violation of a defendant’s[p.1414]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 domination.91
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[p.1415] to the defendant against whom it is admissible, and to disregard that confession as against a co–defendant which it implicates.93
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
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[p.1416] 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 qualified” jury.102
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 error.”’105
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[p.1417] 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 veniremen.111
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[p.1418] 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
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
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
PLACE OF TRIAL—JURY OF THE VICINAGE
Article III, § 2 requires that federal criminal cases be tried by jury in the State and district in which the offense was committed,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
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 Thus, a defendant cannot be tried in Missouri for money–laundering if the charged offenses occurred in Florida and there was no evidence that the defendant had been involved with the receipt or transportation of the proceeds from Missouri.7 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[p.1420] 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 committed.137
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
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[p.1421] 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
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[p.1422] 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 declarations152 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
Supplement: [P. 1422, add to text following n.154:]
A prosecutor, however, can comment on a defendant’s presence at trial, and call attention to the defendant’s opportunity to tailor his or her testimony to comport with that of previous witnesses.8
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.[p.1423] 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 [p.1424]
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 denied.”161
Further, the Court in California v. Green162 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 c[p.]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, per165
http://www.law.cornell.edu/anncon/html/amdt6frag1_user.html#amdt6_hd4