The Sixth Amendment guarantees a cluster of rights designed to make criminal prosecutions more accurate, fair, and legitimate. But the institutions of American criminal justice have changed markedly over the past several centuries, forcing courts to consider how old rights apply to new institutions and procedures.
At the time of the Founding, there were local sheriffs but no professionalized police forces; instead, ordinary men took turns serving as constables or night watchmen. Criminal cases were almost always brought by victims, not public prosecutors. At trial, neither side typically had a lawyer, so both victims and defendants represented themselves. Trials were like shouting matches, in which victims and defendants argued and brought other live witnesses to tell their stories. They lasted minutes or hours, not days.
Juries of twelve ordinary men were central players in this system. They were local citizens who often knew the victim, defendant, and other people and places involved. They also knew which charges subjected defendants to the death penalty (as many felonies did), and which did not. Jurors looked witnesses in the eye and debated both whether a defendant was factually guilty and whether he deserved mercy. They checked the government’s power to punish and applied the conscience of the community in the public eye, assuring everyone that justice had been done swiftly, impartially, and fairly.
The Framers of the Sixth Amendment sought to strengthen this vigorous adversarial process. Continental Europe had long used an inquisitorial system, in which magistrates investigate crimes and judges take leading roles in framing the issues, digging up evidence, and questioning witnesses. The Anglo-American system that the Sixth Amendment codified, by contrast, leaves it to each side to conduct its own investigation, present its own evidence, and argue one side of the story in open court.
Most of the institutions of criminal justice changed greatly over the decades after the Sixth Amendment was enacted. Professional police forces came into being and took charge of investigating crime and arresting suspects. Public prosecutors steadily displaced victims, and then defendants who could afford to increasingly hired lawyers to level the playing field. In some communities, charities or local governments set up public defender offices, offering free lawyers to all or some defendants accused of sufficiently serious crimes. Judges developed rules of evidence and procedure and gave the lawyers a say in selecting and instructing juries, so trials grew longer and more complex.
To avoid the time and expense of jury trials and clear courts’ busy dockets, prosecutors and defense lawyers also increasingly plea bargained. That meant that most defendants avoided trial and pled guilty in exchange for lower charges or sentences. So by the mid-twentieth century, juries resolved only a small fraction of criminal cases.
Around the same time, the Supreme Court ruled that virtually every aspect of the Sixth Amendment applies not only to federal but also to state prosecutions. This vastly expanded the Amendment’s reach, because most criminal prosecutions occur in state court. This “incorporation” of the Sixth Amendment against the states has also required the Court, over the past half-century, to spell out the Amendment’s protections and apply them to the variety of criminal justice systems across the Nation.
Perhaps the Supreme Court’s most significant work has involved implementing the right to counsel. The Court has confirmed that a defendant with enough money generally has the right to be represented by the lawyer of his choice. The accused also has an implied right to forego counsel entirely and defend himself. But what if the defendant wants a lawyer but cannot afford to hire one? In Gideon v. Wainwright (1963), the Court held that such defendants facing possible prison time are entitled to court-appointed lawyers, paid for by the government. Furthermore, such appointed lawyers (usually public defenders) must deliver “effective” assistance to defendants—meaning that they must adequately advise the defendants of the potential consequences of pleading guilty and provide a reasonably competent defense if defendants choose to go to trial. But the test for effectiveness is quite lax. Courts routinely condone mediocre lawyering, often because the conviction seems to have been inevitable no matter what the lawyer did.
The Court also has fleshed out the Sixth Amendment’s other requirements. Starting with the right to a “speedy and public” trial, the Court has held that the failure to begin a trial in a timely manner requires dismissing the prosecution entirely. Perhaps because that remedy is drastic, the Court has interpreted the term “speedy” quite leniently; delays of several years are sometimes permissible. The Court has enforced the “public” aspect of the trial right much more strictly. Criminal proceedings may be closed to the public and the media only for “overriding” reasons, such as national security, public safety, or a victim’s serious privacy interests.
The Compulsory Process Clause, the Court has confirmed, lets defendants subpoena witnesses to force them to testify at trial. This Clause (combined with other constitutional provisions) also now impliedly guarantees defendants the right to testify in their own defense if they wish. The Confrontation Clause requires prosecution witnesses to testify under oath and subject to cross-examination; except for small children who would be traumatized by the process, they must also testify in court and in the presence of the defendant. To preserve the integrity of these confrontation requirements, the Court also held in Crawford v. Washington (2004) that the prosecution may not introduce out-of-court statements by nontestifying witnesses when those statements are “testimonial”—that is, when the statements were made primarily to establish facts for the criminal prosecution. So if, for example, the police investigate a crime and a witness identifies the defendant in order to have him arrested and charged, the prosecution cannot use that statement as evidence in court against the defendant, unless the witness is brought to court so that the defendant can cross-examine him. Finally, the Compulsory Process and Confrontation Clauses guarantee the defendant’s right to be present in the courtroom throughout his trial (though he can forfeit this right by behaving badly).
That leaves the right to trial by “an impartial jury.” The Court has held that this right applies whenever the accused faces more than six months’ imprisonment, and it applies to any fact (other than a prior conviction) that would affect the permissible sentencing range. A jury must come from a pool representing a fair cross-section of the local community. Despite the history to the contrary, a jury may consist of as few as six members (though nearly all states require the traditional twelve). The Jury Trial Clause, combined with the Due Process Clauses of the Fifth and Fourteenth Amendments, also forbids conviction unless the prosecution proves every element of the crime beyond a reasonable doubt. And the jury’s verdict must be unanimous though the Court declined in 1972 to enforce this requirement against the States. Louisiana and Oregon, therefore, have continued to allow non-capital convictions by 11-1 and 10-2 votes.
Consistent with its historical purpose, a jury retains the power to acquit regardless of the strength of the prosecution’s case or to return logically inconsistent verdicts to mitigate punishment. Yet the Supreme Court has refused to hold that the Sixth Amendment entitles defendants to have juries instructed about that power or even advised about the sentencing consequences of the charges. Thus, while juries have continued to serve the role as fact-finders, they are left today to perform their traditional role as “circuitbreaker in the State’s machinery of justice” largely in the dark.
The Founders would have a hard time recognizing modern American criminal justice. Lawyers and judges have made the rules of procedure and evidence too complex and time-consuming. In response, courts have blessed a number of efficient but dubious shortcuts, ranging from smaller and non-unanimous juries to exerting enormous pressure to plead guilty and dispense with trials and the need to for proof beyond a reasonable doubt. Thus, juries hear only a small percentage of criminal cases; about 95% of defendants plead guilty, usually in exchange for a plea bargain for a lower sentence.
These cost-cutting measures have come at a high price, making criminal justice hidden, opaque, and impenetrable to non-lawyers. They have cut out jurors’ common sense and their check on harsh punishments and overzealous prosecutions. To improve matters, we should take the following measures: concentrate our limited funds for appointed defense lawyers for more serious crimes, mainly felonies; make it easier for defendants to defend themselves in the most minor cases; limit some pressures to plead guilty; and streamline jury trials so they can be more widely available. While some of these changes are matters for courts in interpreting the Sixth Amendment, others require legislative reforms. Not everything that is wise or fair is required by the Constitution.
Currently, defense lawyering for the poor is a mess. The Supreme Court has made the Sixth Amendment right to appointed lawyers too broad, reaching not only felonies but also misdemeanors involving any jail time or even a suspended sentence. But even after courts announce a new right, legislatures must decide how to implement and fund it. Criminal defendants are hardly a popular constituency, so indigent defense is chronically underfunded. Thus, public defenders and other appointed lawyers must juggle hundreds of cases at a time, often meeting their clients for the first time and then immediately urging them to plead guilty on the spot. Public defense lawyers have little time or support to investigate cases, question witnesses, and prepare vigorous defenses.
Courts should instead limit the right to appointed lawyers to felonies (punishable by a year or more in prison) plus the most serious misdemeanors, including those that trigger serious consequences like deportation. Appointed defense lawyers should have the time and investigators needed to probe each defendant’s guilt, instead of telling so many to plead guilty right away. They also need time and training to earn their clients’ trust, help them understand the pros and cons of the deal, and explain the consequences that flow from a conviction, including whether a defendant will be deported or lose his job or home. Legislatures should thus peg defense lawyers’ caseloads, salaries, and support to those of prosecutors. Courts could even find that defense lawyers whose caseloads and resources are far out of line are presumptively unable to provide the effective assistance required by the Sixth Amendment.
By contrast, crimes with little jail time or only suspended sentences should have much simpler rules of evidence and procedure, like small claims court, so ordinary people could defend themselves with a little help from the judge and court clerk. Courts should not require appointed lawyers in such cases, at least where the rules of procedure and evidence are simple enough for non-lawyers to navigate by themselves. The Founders thought the jury trial right was even more important than the right to counsel; it is backwards that courts require lawyers for minor cases that do not trigger jury trials and are thus much simpler.
This essay is part of a discussion about the Sixth Amendment with Jeffrey L. Fisher, Professor of Law and Co-Director of the Supreme Court Litigation Clinic, Stanford Law School. Read the full discussion here.
Legislatures should also limit the kinds of threats that could coerce even an innocent defendant to plead guilty. A modest discount, of 10% to 20%, is enough to compensate guilty defendants for saving the time and expense of trial and giving up the small chance of acquittal. But larger discounts, of 50%, 80%, or even 90%, can tempt even the innocent to plead guilty. Some defendants will accept probation or short prison sentences simply because it is too risky to insist upon going to trial. Likewise, being jailed pending trial can pressure innocent defendants to plead guilty to minor crimes in exchange for time served.
To limit plea-bargaining coercion, legislatures could cap post-trial sentences at 125% of the plea-bargain offer, reviving jury trials as more realistic options. Better yet, juries could play more of a role at sentencing. The Supreme Court claims that juries’ guilty verdicts authorize the punishments that follow from them, yet juries rarely know what punishments will follow and are sometimes shocked by the actual punishments. Instead, juries could impose sentences, perhaps after considering the plea offer as well as what the defendant deserves. Minor crimes could be handled like speeding tickets or tried much sooner and faster, reserving pretrial detention for defendants who are dangerous or extremely likely to flee. Unlike Professor Fisher, I do not believe that the Sixth Amendment requires jurors to know or authorize punishments, except for the death penalty and for the line between felonies and misdemeanors. But I agree that these reforms would be wise policy, limiting pressures to plead guilty.
Streamlining trials should extend not only to the rules of procedure and evidence, but also to the kinds of evidence that demand live witness testimony. The core of a trial is the face-to-face accusation by the victim and other fact witnesses who saw the crime. For these witnesses, a defense lawyer’s cross-examination is the surest way to expose lies, foggy memories, inconsistencies, and other weaknesses. Thus, the Confrontation Clause rightly bars using out-of-court interrogation as a substitute for live testimony.
Many other kinds of evidence, however, such as well-established scientific testimony, are generally more cut-and-dried. Once in a while, the defense lawyer genuinely wants to question the way a drug analysis was performed or whether the analyst was competent and honest. In those cases, he can use the Compulsory Process Clause to force the analyst to testify, and can bring in other evidence to impeach the analyst’s ability and credibility. Defendants also have a Sixth Amendment right to challenge the foundations of junk science; in recent years, hair analysis, arson investigations, and shaken baby syndrome have been shown to be deeply flawed and unreliable bodies of knowledge. But usually, it is far more important to give the defense lawyer funds for his own expert so he can spot any weaknesses, critique the prosecution’s methodology and assumptions, and conduct his own tests.
Even though a defense lawyer in a shaken baby or arson case would like to question the coroner, it would be unjust to exclude the coroner’s autopsy report simply because the coroner has since died, particularly since one cannot autopsy a body again later on. These forensic reports are not analogous to the police interrogations that (the Founders feared) could be used to circumvent live testimony. The Sixth Amendment does not require excluding such forensic evidence where the witness is unavailable through no fault of the prosecution’s. Though the Confrontation Clause does not require videotaping and photographing all such scientific tests and making them double-blind, doing so would be wise, so defense experts can more easily perform their own analyses and rebut the prosecution’s version of events.
The Supreme Court has done much in recent decades to implement and to fortify the protections of the Sixth Amendment in our ever-changing criminal justice system. But there is still important work that can and should be done.
More than anything, the Court needs to revitalize the right to jury trial in a criminal case (the only right guaranteed both in the original Constitution and the Bill of Rights). At the time of the Founding, jury service was honorable work—a key component of citizenship. As Alexander Hamilton remarked in The Federalist No. 83, “The friends and adversaries of the plan of the convention, if they agree on nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists of this: the former argued it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”
Nowadays, adults often greet a jury summons with derision—as an annoyance to be avoided if possible. This, no doubt, is partly due to the fact that the Supreme Court has allowed lower courts and legislatures to whittle down the jury’s official job to nothing more than a fact-finder. Juries are commonly told they should not concern themselves with punishment and that they “must” find defendants guilty if the prosecution proves all of the factual elements of the crime charged.
There is good reason to think that the Sixth Amendment should allow defendants to demand that that juries be instructed of the full scope of their power. First and foremost, juries should be told what potential punishments would follow from any given charge. Perhaps juries should also be told explicitly of their nullification power. Fully informed juries would embolden more defendants to proceed to trial. It also would provide a powerful antidote against the modern incentive legislatures have to expose defendants to exorbitant sentences for run-of-the-mill offenses, and thereby, allow prosecutors to threaten to seek such sentences unless defendants plead guilty.
This essay is part of a discussion about the Sixth Amendment with Stephanos Bibas, Professor of Law and Criminology and Director of the Supreme Court Clinic, University of Pennsylvania Law School. Read the full discussion here.
The composition of juries should also better mirror historical practice. State systems that allow convictions by non-unanimous verdicts or juries of fewer than twelve members should be declared unconstitutional. Furthermore, prosecutors should not be allowed – as they currently are – to prevent people from serving on capital juries simply because they have qualms about laws such as the death penalty. An “impartial” jury must come from a true cross-section of the community. Defendants, therefore, should have a Sixth Amendment right not to have juries stacked with jurors who, for example, firmly believe in capital punishment as legitimate and appropriate.
Moving onto other components of the Sixth Amendment, the Supreme Court has rightly construed the Confrontation Clause in recent years to prohibit the introduction of “testimonial” statements of nontestifying witnesses. The Court should clarify that “testimonial” statements include not only those prepared as a substitute for trial testimony but also those made with reasonable anticipation that they would aid a criminal investigation. As Professor Bibas notes, the vast bulk of criminal cases never proceed to trial. Courts, therefore, should focus on whether out-of-court statements served an investigatory role. If so, they should be subject to the Confrontation Clause.
These rules should apply equally to reports by forensic analysts, including autopsy reports. Every year, scientific evidence plays a larger role in the criminal justice system. Yet much of this evidence is not nearly as foolproof as the public may believe. If a defendant wishes to insist that the prosecution present live testimony from forensic analysts, the Sixth Amendment should allow him to do so. Various allowances – particularly as things like video-conferencing technology improve – might be made to make testifying easier. But courts should not be allowed to dispense with confrontation altogether, and if live testimony is impossible – because, for example, an analyst has died – then the witness’s report should be inadmissible. That’s what happens regarding eyewitness testimony, and forensic testimony should be no different.
As for the right to counsel, the Supreme Court issued a critical decision in 2010 (in a case called Padilla v. Kentucky), holding that appointed lawyers must tell defendants whether convictions would lead to deportation. The Court was correct to hold that lawyers must advise clients not only about potential incarceration but also about such a significant “collateral” consequence. Deportation is sometimes more important than any jail sentence. Defendants should argue in coming years that this right to adequate counseling also requires notifying defendants of consequences such as being required to register as a “sex offender” and similarly substantial consequences.