CHAPTER
10

The Sixth and Seventh Amendments: Fair Trials

In This Chapter

• A public and speedy trial
• An impartial jury
• Witnesses for and against
• The right to counsel
• Juries in civil trials

The Sixth Amendment guarantees criminal defendants the right to a fair trial. It ensures defendants are brought to trial soon after they are charged, their trials are held in public, they have a fair and impartial jury, they can confront the witnesses against them, and they can compel potentially helpful witnesses to appear and testify.

The Seventh Amendment extends many of the same rights to litigants in civil cases.

The concept of the speedy trial goes back to the Magna Carta, the concept of an impartial jury goes back even farther, and the concept of a public trial goes back to the Bible.

The Sixth Amendment’s provisions for fair trials in criminal cases are part of the bedrock of individual rights. Its provisions aim to protect individuals, but they also strengthen society. Fair trials prevent governments from persecuting individuals or classes of people but also assure everybody they won’t be persecuted. Fair trials give people confidence in their judicial system and their government.

The Speedy Trial Clause

It’s not fair for the government to charge you with a crime and then not give you a chance to clear your name as soon as possible. The longer an accusation hangs over your head, the more it hurts you, the more people believe you did it, and the more it hurts your ability to defend yourself.

By the same token, the government sometimes wants speedy trials, too. Defendants who really are crooks can commit more crimes if they’re not locked away; long delays increase the chances they will jump bail; and if they might be reformed or rehabilitated, long delays may keep them from getting treatment that might help. In the big picture, citizens are never happy with a government that locks up people without giving them a chance to tell their side of the story.

In the United States, the speedy trial became an issue as caseloads grew with the rise in crime in the 1960s. Dockets became more clogged, and lawyers began filing and winning appeals on behalf of defendants who had to wait too long to go to trial. Few hard-and-fast rules have emerged amid the ensuing court decisions and legislation, however, so even today it is often difficult to say exactly how long is too long.

In general, the clock starts running at the time of arrest. But the Supreme Court has ruled that there are no specific time limits, and how long is too long depends on a number of factors. As usual, there is a balancing act: the defendant’s constitutional right to a fair trial versus factors such as the reason for delay, the length of the delay, whether the defendant pushed for a speedy trial, and whether delays affected the outcome of the trial.

On one hand, the mere fact of a delay does not necessarily overcome the public’s interest in seeing justice done. On the other hand, a defendant whose trial has been delayed doesn’t necessarily need to show any harm from the delay. But one thing is pretty clear: when the courts do find that a defendant has been denied the right to a speedy trial, the charges are dropped or the conviction is overturned.

No matter what deadlines apply, many exceptions waive those deadlines without objection from defendants. Indeed, the defendants typically are responsible for many of the delays, largely through filing motions that let them find and gather witnesses and do research that will help their defense. In practical terms, defendants often don’t want a speedy trial because it can close the window of opportunity for a plea bargain; the longer the delay, the longer the attorneys have a chance to work out a deal.

In addition, judges and lawyers routinely accommodate each other’s schedules, including for personal reasons. For example, if a prosecuting attorney asks to put off a trial for a week because of a long-scheduled family vacation, the judge ordinarily will agree and the defense attorney ordinarily will not object.

The Public Trial Clause

Our form of democracy is deeply rooted in the concept that government should be conducted in the open—including public trials. Historically, public trials have been seen as a safeguard against a government using secret trials to persecute individuals or groups of people. The Spanish Inquisition and England’s Star Chamber are notorious examples of judicial proceedings that were conducted out of the public view. The original 13 states either had their own legal guarantees for public trials by the time the Sixth Amendment was ratified in 1791, or they enacted them soon after.

A trial open to the public is more likely to be fair. It discourages perjury, makes judges or lawyers less likely to bend the rules or do anything inappropriate, and reduces the chances that decisions will be made arbitrarily or as a result of prejudice. The public trial is also a First Amendment issue; the press should be able to attend and report on government proceedings, particularly if those proceedings might take away someone’s liberty or property.

The right to a public trial in criminal cases is not absolute, but because it is such an ingrained concept in our system, the Supreme Court has not been asked to consider many cases on public trials. The courts have ruled that the Sixth Amendment does not extend to the right to televise a trial, although individual jurisdictions can set their own rules for when and whether trials may be broadcast. Juveniles are not guaranteed the right to a public trial, and neither are defendants in the military justice system.

Despite the presumption that all trials should be public, judges can close court proceedings for a number of reasons, including when witnesses or jurors might be afraid to be identified—as in cases involving organized crime or terrorism—or in cases involving victims of sex crimes or juveniles who might be unduly harmed if their identities became public. Judges can decide on a case-by-case basis and consider intimidation, trauma, embarrassment, common decency, and other factors. Those same factors can lead a judge not to close a trial but to impose a gag order that keeps the participants—and sometimes the media—from identifying victims, defendants, or witnesses.

Sometimes a judge may close part of a court proceeding but not the whole thing. In the 1984 case Waller v. Georgia, police used legal wiretaps to gather evidence on illegal gambling, and the defendants filed a motion to suppress the wiretap evidence. A number of people not on trial were mentioned on the wiretaps, including suspects who might have been tipped off about the possible evidence against them, so the court barred the public from the suppression hearing.

On appeal, the Supreme Court noted that the suppression hearings were closed for 7 days, but the evidence from the wiretaps against other people took only 2 hours. In a unanimous decision, the high court said the Sixth Amendment right to a public trial is “no less pressing in a hearing to suppress wrongfully seized evidence.” The justices agreed there could be instances when trials and hearings can be closed to the public, but only in specific cases when there is no alternative.

Either the prosecution or the defense can ask a judge to close a trial or hearing. In either case, the judge must consider whether the defendant’s right to a fair trial would be endangered in open court, and whether there are any reasonable alternatives to closing the courtroom to the public. If a judge does decide to close a trial, the press can object—and so can the public—on First Amendment grounds.

The Impartial Jury Clause

This clause shores up the Constitution’s Article III guarantees for jury trials and can be traced back to the Magna Carta, when the noblemen wanted to ensure that, if King John’s government charged them with crimes, they would be tried before a jury of their peers—other noblemen, presumably, who might be sympathetic.

The framers of the Constitution viewed the impartial jury as a way to protect citizens against overly aggressive prosecutors or incompetent judges. The participation of ordinary citizens brought checks and balances to the everyday working of the judicial system and kept prosecutors and judges from having too much authority.

Historically in English common law, jurors were chosen for their wisdom and good judgment—and often because they knew a lot about the case at hand. Who better to understand what the case was about and render a fair decision than someone who knew the defendant, the prosecutor, and the particulars of the alleged crime?

In contrast, today’s juries often seem to be selected for their lack of knowledge about the case. The less they know, in theory, the more able they are to make an impartial judgment. Ironically, some lawyers who want jurors to know nothing about a case complain after they lose that the jurors were too dim to understand their erudite arguments.

In terms of what a jury is supposed to do under the Sixth Amendment, it’s important to note that the jury is not expected to know anything about the law. In a jury trial, the judge administers the law and the jury determines the facts. That’s why a jury, for example, is not asked to determine whether a confession is admissible and why, if a confession is ruled inadmissible, a jury is not even told about it.

A jury’s decisions about the facts of a case—who, what, when, where, why, and how—are not carved in stone, but almost. When a conviction is appealed, the appeals court typically looks only at whether the law was carried about properly and fairly. Appeals courts do not ordinarily consider whether the jury decided the facts properly.

Let’s say you are accused of stealing your neighbor’s garden gnome. You claim it’s a case of mistaken identity—another neighbor, not you, stole the gnome—but the jury finds you guilty. You appeal your conviction. The appeals court cannot even consider whether it really was a case of mistaken identity, but the court can overturn the conviction if authorities did not follow proper procedures for the lineup that identified you as the gnome-napper.

To meet the Sixth Amendment’s requirements for a fair trial and an impartial jury, the courts have developed a system of jury selection. Just as the noblemen who pushed the Magna Carta on King John wanted to have a jury that might give them a break, today’s voir dire process, from the French “to see, to speak,” allows the prosecution, defense lawyers, and judge to question prospective jurors and exclude them if there is a chance they might be biased.

Prospective jurors can be dismissed “for cause” for knowing too much about the case, for knowing people involved, or for having opinions or experiences that might color their judgment. The opposing attorneys also may have a set number of “peremptory” challenges that allow them to reject jurors for any reason or no reason. It is okay for a juror to have opinions, as long as the judge believes the juror can still consider the case fairly. Typically, prospective jurors are required to show that they can …

• Put aside whatever they have read or heard about the case.
• Listen to evidence with an open mind.
• Deliver an impartial verdict.

Naturally, opposing lawyers try to gauge which prospective jurors will be more sympathetic to their case. Lawyers may ask jurors about personal prejudice in a civil rights case or how they feel about the death penalty in a capital case.

In a 1968 case, Witherspoon v. Illinois, the Supreme Court held that a defendant’s right to an impartial jury was violated during the jury selection process when prospective jurors were rejected if they said they were against the death penalty. The high court said a jury cannot be “organized to return a verdict of death” and said the jurors who oppose the death penalty also should have been asked if they could nonetheless follow the law and impose the death penalty if it was applicable in that particular case.

The Sixth Amendment does not specify that a jury must have 12 members. Indeed, the Supreme Court has said in a number of cases over the years that having 12-member juries appears to be an “accident of history” dating back to feudal times. Rather than any specific number, a jury is supposed to be large enough to …

• Foster group deliberations.
• Resist outside intimidation.
• Represent the community at large.

In a 1970 case, Williams v. Florida, the Supreme Court said a jury does not have to be 12 members. Justice Byron White wrote, “In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members.” The courts have held that six-member juries do not necessarily violate the Sixth Amendment.

Jury decisions need not be unanimous, but the courts have frowned on anything less than unanimous decisions for six-member juries. In general, the more serious the charge, the more the courts prefer larger juries and more unanimity. The Supreme Court has overturned a conviction on a 5–1 verdict that carried a prison term and upheld another conviction on a 9–3 verdict.

A jury is supposed to be a reasonable cross-section of the community and has been found to be partial if it excludes any specific group or class of people within the community. But it is not easy for a defendant to get a conviction overturned by claiming a jury was not impartial because of bias in the selection process. The defendant must prove a distinctive group in the community was excluded, the exclusion was not fair and reasonable, and the exclusion was systematic.

Pretrial publicity also can prejudice a jury. Trials ordinarily are to be held in the district where the alleged crime was committed, but if the courts find that publicity tainted the jury pool so it is impossible to empanel an impartial jury in a specific area, the trial can be moved—a change of venue—to an area where prospective jurors are less likely to have heard or read about the case and formed an opinion.

A jury also can be biased by what happens once the trial starts—by the actions of the judge, lawyers, defendant, witnesses, or even other jurors. When that happens, jurors can be instructed to ignore whatever they saw or heard that might keep them from deliberating fairly. If whatever they saw or heard is nonetheless likely to influence their deliberations, the judge will declare a mistrial.

In December 2006, the Supreme Court ruled that a federal appeals court erred in granting a new trial to an accused murderer after the victim’s relatives came to court every day wearing badges with a photo of the dead man. The appeals court said the badges prejudiced the jury and ordered a new trial. The Supreme Court disagreed and reinstated the conviction, but on technical grounds rather than specifically because of the badges. The unanimous opinion by Justice Clarence Thomas said the question of whether the badges were prejudicial remains “an open question in our jurisprudence,” to be decided in the future.

In general, a defendant has the right to a jury trial for any offense that carries a potential penalty of more than 6 months in jail. That does not apply, however, if a defendant is charged with a series of offenses with penalties that would extend to more than 6 months if convicted on all counts. There must be at least one charge that carries a potential sentence of 6 months or more.

Like other principal aspects of the Sixth Amendment, the impartial jury clause applies to states through the Fourteenth Amendment. The Supreme Court extended this protection in 1968 in Duncan v. Louisiana, a case that began 2 years earlier when a young black man named Duncan was driving down a Louisiana highway and noticed two of his cousins with a group of young white men alongside the road. Fearful that his cousins were being harassed because they had recently complained about racial bias in local schools, the young man pulled his car over and asked his cousins to get into his car and leave with him.

The white youths said Duncan slapped one of them. Duncan and his cousins denied it, but Duncan was arrested and charged with battery—a misdemeanor in Louisiana, but punishable by up to 2 years in prison. Duncan was convicted by a judge and sentenced to 60 days in jail, but he appealed on the grounds that he was denied right to a jury trial. The Supreme Court agreed, overturning the conviction on the grounds that the Sixth Amendment applies to state law, too.

There is no constitutional right to a trial before a judge only—a bench trial, it’s called—but courts routinely allow defendants to waive the right to a jury trial. The rule of thumb is that you ask for a bench trial only if you think a judge might be more sympathetic to your case than a jury of your peers—for example, if your case is particularly complex or if you are particularly unpopular in the community.

The Confrontation Clause

The Sixth Amendment guarantees defendants in criminal proceedings the right to confront the witnesses against them, to look them in the eye and ask them questions. The Confrontation Clause is aimed to prevent defendants from being convicted on the basis of ex parte statements, affidavits, or depositions that were made outside court.

The history of this principle supposedly dates back to Sir Walter Raleigh, the Elizabethan-era adventurer who supposedly took off his cloak and threw it in the mud so Good Queen Bess would not soil the royal shoes. After the queen died and Sir Walter no longer had her protection, his legal troubles began. His enemies and rivals made statements about him, including allegations of conspiracy. Those statements were taken into evidence at Sir Walter’s trial, even though the accusers were not required to appear and testify in person. He spent years in the Tower of London and finally was beheaded in 1618.

As part of the Confrontation Clause, defendants are entitled—but not required—to attend their own trials. However, defendants can be removed from the courtroom or restrained for disrupting court proceedings. For example, Bobby Seale’s outbursts led him to be shackled and gagged at the 1969 trial of the Chicago Eight (which became the Chicago Seven when Seale’s trial was separated). More recently, Saddam Hussein was removed from portions of his 2005–2006 trials in Baghdad.

The Confrontation Clause gives defendants the right to cross-examine witnesses—to test their credibility in front of the judge and jury, to hear what they have to say and how they say it, to view their demeanor, and to consider their body language. That makes sense in our judicial system, an adversarial process that pits the prosecution and defense against each other in a competition.

Other criminal justice systems, such as those in France, Spain, and Italy, rely less on competition—which side has the better legal team—and more on a prosecutor who is, in theory at least, less interested in winning convictions than in seeking truth and fairness. Our system, with its emphasis on individual rights, prefers the adversarial contest to putting more trust in the government to do what is right.

As a result, lawyers in our system try to get jurors to disbelieve, distrust, or at least dislike prosecution witnesses. They use strategies to bother opposing witnesses: they move around the courtroom, they change the pace or tone of questioning, they look for contradictions and inconsistencies, they try to get witnesses to misspeak or get flustered. Sometimes they attack the character of witnesses; even if a witness isn’t lying, a lawyer may make points with a jury by pointing out that the witnesses might have reason to lie.

The O. J. Simpson trial, remember, eventually hinged on the prosecution witnesses. The jury didn’t like the witnesses, and Simpson was acquitted. If you’re a law student or lawyer who wants to see a masterful cross-examination, look up David Boies’s cross-examination of Bill Gates and other Microsoft executives in their antitrust trial.

This part of the Sixth Amendment is where hearsay is a factor. Unlike the accusations against Sir Walter Raleigh, statements made outside of court proceedings today are usually inadmissible. You’re allowed the right to confront the witnesses against you, but you cannot confront them if they are not in court.

It is worth noting, however, that the hearsay rule is not universal. Hearsay can be admissible in civil cases, and even in criminal cases there are exceptions. In a 1980 landmark case, Ohio v. Roberts, the Supreme Court set forth conditions for allowing hearsay: the prosecution must show it has tried to produce the witness and show good reason why the witness will not appear, and if a witness cannot appear, the prosecution must show that the hearsay is reliable and trustworthy.

The “dying declaration” is a widely accepted exception to the hearsay rule, under the theory that people who think they are dying—they don’t actually have to die—are probably going to tell the truth. In addition, forensic expert testimony is sometimes allowed in response to hypothetical questions. Some states allow dying declarations to be admitted as evidence in all or most trials, but in federal courts, the dying declaration is admissible only in civil cases and homicide cases.

There are exceptions to the way cross-examinations can be conducted, too. They don’t always have to be face to face in front of the judge and jury, especially if the witness would be traumatized by the presence of the defendant. The Supreme Court has ruled, for instance, that children testifying in sexual abuse cases do not necessarily have to face the defendants. The kids can testify behind a screen or via closed-circuit TV or videoconference. Even if there is no face-to-face confrontation with the defendant, however, the judge and jury still get to see the witness, and the defendant still has the right to cross-examine.

The Sixth Amendment has been at the heart of recent controversy over how the United States should prosecute suspected terrorists, and the Supreme Court gave mixed results to the George W. Bush administration. The Supreme Court refused to consider a case that challenged the administration policy of withholding names and other information about people taken into custody after the September 11, 2001, attacks on the World Trade Center and the Pentagon.

In the summer of 2006, however, the Supreme Court struck down the administration’s plans for prosecuting suspected terrorists held at Guantanamo Bay Naval Base. The 5–3 decision did not say the military tribunals were necessarily unconstitutional but did say some of the aspects of the administration’s plans for the tribunals were violations of the Sixth Amendment. The administration classified suspected terrorists as “enemy combatants” and planned to prosecute them in military tribunals—exempt from the Sixth Amendment’s requirements for trial by jury. Plans for the tribunals included allowing hearsay evidence, and in some cases, the defendants would not be able to cross-examine witnesses, have legal counsel, protest their incarceration in federal court, see the evidence against them, or even attend their own trials. Congress reacted quickly, and in the autumn of 2006 sent President Bush legislation aimed at legalizing the military tribunals.

That Supreme Court decision on the military tribunals could turn out to be a significant constitutional footnote regarding the separation of powers and the system of checks and balances. The Bush administration argued that the Supreme Court did not even have the power to consider whether the tribunals were legal. The administration also said the sweeping antiterrorism authority Congress granted the president after the 2001 attacks gave Bush—and subsequent presidents—broad powers that were beyond review by the courts. The Supreme Court disagreed, obviously.

The Compulsory Process Clause

The Sixth Amendment not only guarantees the right to cross-examine witnesses who testify against you, but also gives you the power to call witnesses who might testify in your favor—and to force them to appear in court even if they are reluctant.

This right also extends to state courts, thanks to the Supreme Court’s 1967 decision in Washington v. Texas. In that case, a defendant charged with murder wanted to call a defense witness who had already been convicted of participating in the same murder. Texas authorities said no, citing a state law that prohibited people charged in connection with the same crime from testifying on each other’s behalf. Without the testimony, the defendant was convicted but then appealed. The Supreme Court reversed the conviction, saying the defendant’s Sixth Amendment right to call witnesses had been violated.

The clerk of the court issues a subpoena and then it’s served on the witness by a law enforcement officer or process server. There’s no charge to the defendant. Defendants can compel almost anyone to testify, as long as they can show that the testimony will be material to the case and favorable to their arguments. A judge will reject the request for a subpoena if it seems like the witnesses are being called merely to prolong the proceedings. If a judge decides the testimony is redundant, the witness is out.

Witnesses also can be disallowed if the side calling them didn’t give the other side notice those witnesses would be called. Court rules do not ordinarily permit surprise witnesses or any sort of surprise evidence, and both the prosecution and the defense normally are required to show each other pretty much their entire case before the trial begins. This helps ensure a fair trial, but as a practical matter, it also speeds up the judicial process by encouraging plea bargaining. If you know the other side has the smoking gun, you’re probably going to want to make a deal for a lesser charge if you can.

Witnesses can also be disallowed if they are too important to testify. From George Washington to Richard Nixon to Bill Clinton to George W. Bush, American presidents have claimed that their jobs make them exempt from testifying, supplying evidence, or otherwise responding to subpoenas due to their executive privilege.

During the Watergate investigations, John Dean and other aides to President Richard Nixon offered conflicting testimony before Congress. Someone was committing perjury. Another aide revealed that Nixon had been taping conversations in the Oval Office, so the Watergate special prosecutor subpoenaed the tapes. Nixon refused, citing executive privilege, and the case went to the Supreme Court in the summer of 1974.

The high court ruled that executive privilege was a legitimate claim by the president even though it was not specifically mentioned in the Constitution. However, in a unanimous decision that cited several constitutional grounds, including the Sixth Amendment, the Supreme Court ordered Nixon to turn over the Oval Office tapes.

What if Nixon had refused to comply with the Supreme Court’s decision? What if he had burned the tapes in a bonfire on the South Lawn? What if he had called out the troops to surround the White House and prevent anyone from coming and getting the tapes or presenting him with articles of impeachment? Two weeks after the Supreme Court’s decision, he turned over the tapes. Four days later, he resigned rather than face impeachment and possible removal from office. But the hypothetical—what if he hadn’t?—shows just how tenuous our democracy can be, and how it hinges on a society’s willingness to follow the rule of law.

More recently, Dick Cheney claimed executive privilege applies to vice presidents, too. In 2002, Congress’s General Accounting Office (now called the Government Accountability Office) asked him for more information on his National Energy Policy Development Group as part of an inquiry into the oil industry’s influence on government policies. Cheney’s office refused on the grounds that executive privilege applies to vice presidents.

Assistance of Counsel

The Fifth Amendment’s Miranda warning requires authorities to tell people who are being arrested that they have the right to an attorney, but the actual right to an attorney stems from the Sixth Amendment. You don’t have to accept an attorney’s help; you can represent yourself. But courts can deny a defendant the right to represent himself if it seems like he will be incompetent or disruptive.

The landmark case, from the height of the Great Depression, is officially in the law books as Powell v. Alabama, but it’s more widely known as the Scottsboro Boys case. In March 1931, when it was common for jobless young men to strike out from home and ride the rails, a group of black hoboes got into a fight aboard a freight train passing through Alabama. The black hoboes won the fight and tossed most of the white hoboes off the train outside the town of Stevenson. The white hoboes told the stationmaster at Stevenson what had happened, and the stationmaster messaged ahead to the next stop, Scottsboro. The sheriff organized a posse, stopped the train, and pulled off the nine black men on board. Two white women were on the train, and they told the authorities, apparently under prodding, that they had been gang-raped.

The men were taken to the Scottsboro jail, and the National Guard was called out to maintain order and prevent a lynching as word of the alleged rapes spread. The men were charged with rape, a crime that carried the death penalty, but none of them was allowed to have an attorney or even contact relatives, all of whom lived in other states. They still did not have an attorney on the day of the trial, when the judge finally appointed two local lawyers to represent them, but the lawyers had no chance to prepare a case or even talk with the young men.

Doctors who examined the women testified there was no evidence of rape, but all nine men were convicted, and eight of the nine were sentenced to death. The state courts in Alabama rejected their appeals, and the case went to the U.S. Supreme Court.

The high court overturned the convictions and ordered new trials on the grounds of the Sixth Amendment. The court’s 7–2 opinion held: “No attempt was made to investigate …. Defendants were immediately hurried to trial …. [A] defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.” The court ruled that the right to counsel was part of the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” The Scottsboro decision was the first in a string of Supreme Court cases over the ensuing decades that guaranteed the right to counsel at no expense to the defendant, not only in capital cases but in all serious criminal cases.

The Seventh Amendment: Juries in Civil Trials

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, other than according to the rules of the common law.”

The framers considered extending Article III’s guarantees of a jury trial to civil cases as well as criminal cases. But it didn’t come up until late in the Constitutional Convention, after a long, hot summer of hard work, and it may have been voted down simply because the men were all eager to go home.

There was widespread support for the idea, however, including among the states. Congress approved the proposed Seventh Amendment without debate, and the right to a jury trial in civil cases became part of the Bill of Rights.

The Constitution does not extend the right to a jury trial in civil cases to the states, but as a practical matter, the states have comparable rules with varying requirements for the nature of the lawsuit and the amount of money damages at stake. In general, the Seventh Amendment has been interpreted to hold that the right to a jury does not include an “equity” lawsuit—an action seeking not money damages but nonmonetary relief, such as an injunction or some other type of “performance” order in which a court tells someone they must or must not do something.