Right to Counsel

                The topic of discussion for this Constitution Monday comes from the Sixth Amendment to the United States Constitution:  “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”    This means that any person accused of criminal intent has the right to have an attorney guide his defense.  If he cannot afford an attorney, one will be appointed to assist.

                W. Cleon Skousen explained, “Provision is made in each judicial district to have certain attorneys available (often the younger, less experienced ones) who can be appointed by the court to assist the accused.  Of course, if the case is technical and the offense is serious, the court will appoint one of the more experienced attorneys in the area to defend him.

                “It is indicative of the maturity of the American judicial system that in recent years there has been an increasing emphasis on the necessity of having the assistance of counsel both before and during the trial.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 709.)

                Don Dripps of The Heritage Foundation explained, “By affording a right to assistance of counsel, the Founders specifically meant to reject the English practice of prohibiting felony defendants from appearing through counsel except upon debatable points of law that arose during trial….

                “History does not speak so clearly to the related but distinct question of whether a defendant who is too poor to retain private counsel has the right to a lawyer paid at public expense.  Self-representation appears to have been common at the time of the Founding, but representation by professional lawyers became more frequent during the first half of the nineteenth century….

                “While there can be no doubt that the Framers valued the right to counsel, their primary purpose lay in removing legal obstacles to representation by lawyers privately retained by defendants who could afford lawyers.  Not until 1938 did the Supreme Court hold that the Sixth Amendment required court-appointed counsel for defendants too poor to afford private counsel, or a knowing and intelligent waiver of court-appointed counsel by the accused….  The Sixth Amendment, however, applied only in federal cases.  As late as 1963, several poorer states, all in the South, refused to provide appointed counsel for all indigent felony defendants, many, if not most, of whom were black.  Prior to 1963, the Supreme Court had addressed the question of counsel for the indigent accused persons in state cases under the Due Process Clause of the Fourteenth Amendment, rather than under the Sixth Amendment, which deals specifically with the right to counsel.  In the state cases, beginning with Powell v. State of Alabama in 1932, the Court read due process to require appointed counsel in capital cases, and in felony cases when they presented special needs for legal advice.

                “The modern law interpreting the Right-to-Counsel Clause really begins with the 1963 decision in Gideon v. Wainwright, holding that the Fourteenth Amendment incorporates the right-to-counsel guarantee of the Sixth Amendment, making it applicable in state as well as federal cases….”  (See The Heritage Guide to the Constitution, p. 357.)

Favorable Witnesses

                The topic of discussion for this Constitution Monday comes from the Sixth Amendment to the Constitution of the United States:  “In all criminal prosecutions, the accused shall … have compulsory process for obtaining witnesses in his favor….”  This provision gives the accused the right, with compulsory help from the court, to obtain witnesses in his own behalf.

                W. Cleon Skousen explained that this clause in the Constitution “allows the defendant to use the good offices of the court and the enforcement machinery of a U.S. marshal’s office to compel witnesses to participate in the trial in his defense.

                “This is particularly important in criminal cases, since there is a severe reluctance on the part of others to become involved in such cases.  Even when they have important knowledge concerning the facts of the case, they seldom feel duty-bound to come forward without a subpoena from the court.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 709.)

                Stephen Saltzburg of The Heritage Foundation explained the historical significance of this clause:  “For centuries, Britons had struggled against the common-law rule that forbade an accused from calling witnesses in his defense in cases of treason or felony, or, even when allowed, not to permit the defense witness to be sworn under oath.  The common-law rule survived in the American colonies even after England had abolished it by statute.  After the Revolution, however, a number of state constitutions established in one form or another the right to call defense witnesses.  When the First Congress considered the Compulsory Process Clause, there was little debate over its value, and it became part of the Sixth Amendment without opposition.  The clause assured that the accused in a criminal case was guaranteed not only the right to call witnesses but also a process to obtain witnesses, so that defense evidence could be evaluated by a jury, or, in a nonjury criminal case, by a judge.  It was, in sum, an essential part of the right of an accused to present a defense.”  (See The Heritage Guide to the Constitution, pp. 355-356.)

Confront Witnesses

                The topic of discussion for this Constitution Monday comes from the Sixth Amendment to the Constitution of the United States:  “In all criminal prosecutions, the accused shall … be confronted with the witnesses against him….”  This provision gives the accused the right to confront the witnesses of his alleged crime and to question them.

                W. Cleon Skousen explained that under “the English system of law there was an odious practice of having witnesses make out depositions (written testimonies) which were read to the accused at the time of his trial.  This deprived the defendant of the opportunity to confront his witnesses and cross-examine them.  It was on the basis of a mere deposition that Sir Walter Raleigh was convicted of treason and beheaded.

                “The one exception to the rule against the admission of a written accusation is the declaration by a dying witness, which may be read against the accused on the ground that the `solemnity of the circumstances’ tends to make the testimony creditable.”  (See The Making of America – The Substance and Meaning of the Constitution, pp. 708-709.)

                John C. Douglass of The Heritage Foundation explained that there was “no record of any debate over the Confrontation Clause in the First Congress.  Nevertheless, history offers some guidance to understanding the purpose of the clause.  Long before the American Constitution, trials featuring live testimony in open court subject to cross-examination were typical in the English common-law courts.  Those who adopted the Sixth Amendment probably had that model in mind, especially in light of the abuses the American colonists knew of or had experienced….”  (See The Heritage Guide to the Constitution, p. 354.)

Inform the Accused

                The topic of discussion for this Constitution Monday comes from the Sixth Amendment to the Constitution of the United States:  “In all criminal prosecutions, the accused shall … be informed of the nature and cause of the accusation….”  This provision means the accused has the right to know the exactly crime they supposedly committed.

                W. Cleon Skousen explained that a “person is considered to be informed of the charge against him by having a copy of the grand jury’s indictment presented to him.  He is then given a reasonable time to prepare his defense.  The same thing when a federal prisoner has been arrested and is brought before a judicial officer for his `preliminary hearing.’  At that time the charge is read against him and he is invited to plead `guilty’ or `not guilty.’”  (See The Making of America – The Substance and Meaning of the Constitution, p. 708.)

                Paul Rosenzweig of The Heritage Foundation further explained that this right of the accused “traces its origin at least as far back as twelfth-century England.  Anglo-Saxon law required a precise and properly substantiated accusation, initiated either by individual complaint (called an appeal) or by an accusing jury (the predecessor of our grand jury), and specifying particular charges….”

                Rosenzweig quoted Justice Hugo L. Black as writing, “No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.  Cole v. Arkansas (1948).”  (See The Heritage Guide to the Constitution, p. 352.)

Right to an Impartial Jury

                The topic of discussion for this Constitution Monday comes from the Sixth Amendment to the U.S. Constitution:  “In all criminal prosecutions, the accused shall enjoy the right … to be tried 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….”  This provision gives the accused the right to be tried by an impartial jury in the area where the crime was committed.

                W. Cleon Skousen explained, “It will be recalled that in the body of the Constitution, Article III, section 2 provided that `the trial of all crimes, except in cases of impeachment, shall be by jury.’  This is therefore the second time this guarantee of a constitutional right has been mentioned….

                “The importance of this provision is borne out by the records of many judicial hearings of the past where there has been an attempt to breach these protective barriers.”  (See The Making of America – The Substance and Meaning of the Constitution, pp. 707-708.)

                Albert W. Alschuler of The Heritage Foundation further explained, “The Framers of the Constitution of 1787 and of the Bill of Rights revered trial by jury….  By the time of the Framing, common-law juries had a more than five-century history in England.  They had been part of the American experience from the start.  Although juries then were considerably less representative of the adult population than they are today, they were the most democratic of the governmental institutions in the colonies.   Most Americans cheered their resistance to repressive colonial measures, especially British revenue laws and seditious libel laws.

                “In some colonies, juries had the power to judge questions of law as well as fact.  They consisted of twelve people who always acted by unanimous vote.  In felony cases, nonjury trials were unknown, and guilty pleas infrequent.  Trials were expeditious and routine….  (See The Heritage Guide to the Constitution, pp.348-349.)

Speedy Trial

                The topic of discussion for this Constitution Monday comes from the Sixth Amendment to the U.S. Constitution:  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial….”  This provision guarantees that public trials will take place as soon after indictment as possible.

                W. Cleon Skousen explained, “A `speedy trial’ is one without unreasonable delay.  A defendant may not demand a trial until the prosecuting attorney has had a reasonable time to prepare his case.  However, the Supreme Court has held that in time of insurrection, a person may be held indefinitely without trial until public peace has been restored.  Temporary incarceration, the Supreme Court felt, is a far less stringent means of protecting the community than resorting to the more extreme measures allowed under martial law.  (Martial law permits a state governor to order insurrectionists to be killed if necessary to protect life or to prevent widespread looting and restore peace.)

                “The public trial is for the benefit of the accused and not the public.  Therefore, if publicity would not be in the interest of justice, the court may exclude all but a few of the public in the interest of the defendant’s rights.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 707.)

                George Thomas of The Heritage Foundation explained the Speedy Trial Clause:  “From the time of the Assize of Clarendon (1166) and the Magna Carta (1215), the common law created protections in response to English monarchs who imprisoned enemies of the Crown without permitting them access to courts.  By 1642, Sir Edward Coke was able to conclude that English judges `have not suffered the prisoner to be long detained, but … have given the prisoner full and speedy justice….’  The evil to be avoided was lengthy pretrial detention….

                “The Framers of the Constitution understood that a speedy trial was part of the essence of the rights of Englishmen.  When the First Congress drafted the Bill of Rights, it approved without discussion the right to a speedy trial.  At that time, the rights to habeas corpus (Article I, Section 9, Clause 2), to nonexcessive bail (Eighth Amendment), and to a speedy trial were seen as interrelated.  Under common-law practice, judges would grant a habeas corpus petition and dismiss the indictment if a defendant was detained too long prior to trial.  Once the defendant was free, the harm of pretrial detention ceased, and the speedy-trial requirement was moot.  The state could, if it wished, reindict later so long as the statute of limitations was not a bar….

                “”As with most of the other provisions of the Bill of Rights, the Supreme Court has incorporated the Speedy Trial Clause into the Fourteenth Amendment and applied it to the states….

                “One’s right to a speedy trial in most instances begins from the time of arrest or indictment, not from the moment an investigation begins.  It is left to statutes of limitations to cure the abuse of too long an investigation.  At present, the Federal Speedy Trial Act (1974) defines the time limits for criminal actions to begin.  Generally speaking, an indictment or information must be filed within thirty days of arrest, and a trial should occur within seventy days of the filling….”  (See The Heritage Guide to the Constitution, pp. 345-346.)