Tahlequah Daily Press


March 24, 2014

Sixth Amendment tries to level scales of justice

Speedy trial, impartial jury guaranteed in felony cases

TAHLEQUAH — If a person faces trial on suspicion of committing a felony, the accused is granted a laundry list of rights and protections by the Sixth Amendment of the U.S. Constitution.

The Sixth Amendment reads: “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.”

The right to a speedy trial was defined further by the Supreme Court in the 1972 case of Barker v. Wingo. A delay of a year after arrest or indictment was called “presumptively prejudicial.”

A delay can be granted for reasons such as finding a witness or to change venue. A defendant who agrees to a beneficial delay cannot later claim an unjustified delay, and the court must account for any prejudice caused a defendant by delaying proceedings.

Dana Rogers, Democrat Party chair for Cherokee County, said she has seen instances where the right to a speedy trial, and other Sixth Amendment protections, were poorly implemented, or not at all.

“Having worked in the legal field for over a decade, I often saw defense attorneys waive the right to a speedy trial, even when the defendants were incarcerated,” Rogers said.

Though the Sixth Amendment guarantees a public trial, the Supreme Court ruled in 1966 in Sheppard v. Maxwell that public access could be restricted if it protected due process for the defendant.

Rogers said the right guarantees transparency, protecting defendants from unfair treatment and “shenanigans.”

“I do question however, the long history in the U.S. of public trials being a form of entertainment for the public, rather than to actually avoid the appearance of impropriety,” she said. “If they weren’t for entertainment, why would they be so dramatic?”

The Sixth Amendment requires a right to jury trial in “criminal prosecutions”; that the jury represent a cross-section of the community; and that the trial be held in the state where the crime was committed.

However, the right does not apply to misdemeanor offenses – even those that might land a defendant in jail.

The guarantee of notice of accusations demands that the wording be precise –  naming particular criminal acts, dates and the accused – so the double jeopardy protection of the Fifth Amendment can be easily attached.

The right to confront accusers traces its lineage to the long-standing common law prohibition of hearsay evidence, but the Supreme Court has ruled they are not the same (California v. Green, 1970) and exceptions can be made – such as dying declarations and admissions to witnesses by the defendant. Prior testimony of an unavailable witness can be read.

The defendant also has the right to confront physical evidence, meaning defense counsel can contest its legitimacy.

“Confrontation is a good thing if you don’t want someone to hide behind a curtain and just randomly accuse people of things,” Rogers said. “On the other hand, what type of additional trauma does this inflict on victims of violent crimes, sexual crimes or crimes against children?”

The right to call witnesses can extend to the court ordering testimony from any defense witness who refuses to testify. Conversely, a defense witness may be precluded if the prosecution is not notified by defense counsel.

Dr. Daniel Savage, chair of the Department of Geography, Political Science and Sociology at Northeastern State University, said the right to counsel was interpreted differently in the past.

“Before the amendment was applied to the states, it meant that if you wanted a lawyer, and you could afford one, then you had a right to be represented by one in court,” he said.

Savage said people in most states did not have a right to counsel unless charged with a capital crime.

“In Gideon v. Wainwright in 1963, the Supreme Court ruled that the right to a lawyer applied the to the states, and that if a charge could result in jail time, the accused had a right to a lawyer, regardless of whether he or she could afford to hire one,” he said. “This led to the creation of public defender systems and the use of court-appointed attorneys.”

In Escobedo v. Illinois (1964), the Supreme Court ruled that the right to counsel applies even to suspects in criminal investigations.

“These decisions reflect the court’s judgment that criminal law is such a specialized endeavor that a fair trial is not available to any person who does not have access to experienced council,” Savage said.

Rogers said the right to legal counsel does not mean equal or competent counsel, noting that rates of conviction and severity of sentences differ with ethnicity and socio-economic standing.

“I know several attorneys who are or have been public defenders,” Rogers said. “Most began as young people with ideas that they would be able to change the world, make a difference, protect the innocent or gain trial experience.  In reality, there is very low pay, very long hours and often an unmanageable caseload.”


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