The Sixth Amendment: the Right to Notice of Charge/Confrontation of Witness - Report Example

The Sixth Amendment The idea that man should have certain rights accorded to him by virtue of birth and not as a concession from government, when first advocated, stood as a truly revolutionary act. Prior to that period, rights and powers were historically seen to be something granted by a kind or held due to noble title. The Bill of Rights established what the Founding Fathers saw as pre-existing rights. The Sixth Amendment was one of the most important within that document. In the following, the Sixth Amendment shall be defined and examined, its historical development shall be traced, and recent developments shall be scrutinized all within the context of a general attempt to argue in favor of the Sixth Amendment and the rights it establishes. The Sixth Amendment is so important because it seeks to establish and protect the dignity of the defendant. Very often today the issue of the legal rights of the accused is mired in a broader debate about “getting tough on crime” or the desire to “protect criminals.” It is quite interesting that the Founding Fathers of the American Republic would ratify the Bill of Rights given that the rights enshrined therein are so often the subject of derisive commentary by those who would rather prosecute criminals than uphold individual rights and liberties. After all, if the Bill of Rights was going to be abused by hot-shot lawyers and shrewd criminals, why would the Founding Fathers try to make it law? The truth is that the real threat to freedom and order is a government willing to trample on the rights of the accused and not a band of criminal thugs. The Founding Fathers recognized that a person is most in need of his/her rights and legal protections when accused of a crime. History had demonstrated that the tendency for governmental abuse was far greater than the threat posed by outlaws (Douglass 2005, 1967). The Sixth Amendment sets out some of the basic rights of the accused which, since its ratification, have become fundamental parts of American jurisprudence. It guarantees that 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 defence. (U.S. 2010) Thus there are several rights guaranteed and mandated by the Sixth Amendment. They are the rights to a speedy trial, to a public trial, to an impartial jury, to a notice of accusation, to confront witnesses, and the right to an attorney. It is possibly the most important amendment in the Bill of Rights apart from the First (speech, press, assembly, worship, and petition the government) and the Fifth (right not to self-incriminate). The Sixth Amendment seeks to do away with secret courts and arbitrary prosecutions. The rights and protections of the Sixth amendment ought to apply to every person in every instance. Unfortunately, this was not always the case. Originally the rights of the Constitution did not apply to the States. Admittedly most states protected the same rights in their respective state constitutions but not uniformly. Women and, in the Antebellum South, blacks often did not receive just treatment nor the proper recognition of their rights. It took the blood-soaked battlefields of the American Civil War to mandate that the rights of the Constitution applied to state courts just as much as they did to Federal ones. The Fourteenth Amendment, specifically the Due Process Clause, “made applicable to the states” the Bill of Rights (Sixth 2010). This meant that every person in every case had inalienable rights which superseded any individual legal jurisdiction. The right of the accused to confront the witnesses against him/her and to know precisely the details of the charges made is a means of avoiding governmental and prosecutorial abuse. Case decision after case decision has mandated the requirement that all information held by the prosecution be made available to the defense. Without these requirements, secret charges unsubstantiated by available facts could be made at random. In the case of James v. Borg, the Supreme Court decided that a defendant is well-informed if there is no evidence of prosecutorial obfuscation or “heel-dragging.” The Court determined that a judge must look to the available evidence and testimony to establish whether or not the prosecution has been forthcoming with any and all information. “The principal purpose of the information is to provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense” In the 1989 case of Sheppard v. Rees, the Supreme Court ruled that the defendant has “a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense” (Sixth 2010). The Sixth Amendment then, functioning as it does through the enforcement powers established by the Fourteenth Amendment, forces the government to take extra steps when prosecuting an individual. This is extremely important. It should be difficult for the government to use its powers. A big part of that difficulty comes from the Sixth amendment. As Justice Scalia once said “Society is obliged to prosecute those who break its rules, but society may not break its own rules in the prosecution process” (Sixth 2010). As proof of the of the importance of the Sixth Amendment rights to confront one’s accusers and to know the facts of the charges one faces, the Supreme Court has, through the development of case law, declared that a separate waiver for the Sixth Amendment should exist. The Fourth Amendment (protection from unlawful search and seizure) has historically had what is known as a negative waiver. If the defendant does not voice his/her desire not to consent to a search, it amounts to a waiver of that right. Thus if law enforcement is about to search his/her home, the individual in question must actively state that he/she does not consent to a search of his/her possessions. If law enforcement then carries out the search, the fruits of that search are inadmissible. The Sixth Amendment has a “positive waiver” (Echikson 1986, 775). This means that the defendant must openly and vocally waive his/her right to counsel and/or the right to the information behind a charge in order for that right to be actually considered waived. The Court did not stop there in establishing the importance of the Sixth Amendment. In Edwards v. Arizona, it further ruled that any individual waiver of Sixth Amendment protections only applies to the specific circumstances of the waiver, later proceedings against the accused for the same crime create a new right and thus a new need for a new waiver (if the defendant should so want one). The Sixth Amendment is so important because it keeps the police from abusing the rights of people. With the expansion and growth of the number and various levels/types of law enforcement in the United States, particularly since 9/11, the Sixth Amendment has gained new prominence and significance. This amendment mandates that “the police, whether through coercive or non-coercive means, may not attempt to subvert in any manner a defendant’s right to have a counsel act as a “medium” between him and the state” (Echikson 1986, 786). Thus the Sixth Amendment prevents the government from trampling on the rights and dignity of the accused. The integrity of the Sixth Amendment has encountered some challenges in recent times. Like all things in human society, legal customs have changed. In modern America trials have a “trial phase” and a “sentencing phase.” This was not always the case. In the early years of the American Republic, sentences were carried out quickly and juries, not judges, decided punishments. Thus the Sixth Amendment was meant to apply to all aspects of a criminal’s proceedings. Today mandatory sentencing laws make it so one crime can lead to a very long sentence. This results from the arbitrary division made today between the trial and the sentencing. Some have advocated that the jury should only have say in the former. This does not mesh well with the intent of the Founding Fathers. “The Framers knew nothing of a “guilt phase and a “penalty” phase. They crafted the Sixth Amendment not only to protect the innocent from punishment, but also to protect the guilty from undeserved death” (Douglass 2005, 1967). Some would say this distinction runs contrary to the original intent and thus violates the Sixth Amendment. Allowing for Sixth Amendment protections only for trials and not for sentencing is unjust. And yet that is what is often being done. The situation has not been helped by the parallel evolution in American law of the Judge of a trial gaining more and more power to influence and “instruct” the jury. In recent years the Supreme Court has “called upon [the states] to ensure that trial judges do not usurp the jury’s exclusive fact-fighting power and thereby violate criminal defendants’ Sixth Amendment guaranty of a trial by jury” (Cyrulnik 2005, 905). The fact that there has been this tendency is quite worrisome. The jury should determine the fate of the accused, not a judge. The struggle to defend the rights of the accused is an ongoing and continuing one. The government in one way or another is ever tempted to expand its policing powers and violate the rights of the accused. This being the case, the need for the original Amendment is paramount: without the basis there would be nothing to stop the wholesale institution of tyranny. Since 9/11 there have been trials of suspected terrorists who have not been able to confront their witnesses. The government has cited terrorism as an excuse. It is important to highlight that our rights are inalienable and thus the government cannot, under any circumstances, take them away. This was the intent of the Founders. References Cyrulnik, Jason Colin. (2005). Overlooking a Sixth Amendment Framework. The Yale Law Journal, 114:4, 905-912. Douglas, John G. (2005). Confronting Death: Sixth Amendment Rights as Capital Sentencing. Columbia Law Review, 105:7, 1967-2028. Echikson, Thomas. (1986). Sixth Amendment: Waiver after Request for Counsel. The Journal of Criminal Law and Criminology, 77:3, 775-795. Sixth Amendment. Retrieved April 20, 2010 from The ‘Lectric Law Library Web Site: http://www.lectlaw.com/def2/s107.htm U.S. Constitution: Sixth Amendment. Retrieved April 20, 2010 from Find Law For Legal Professionals Web Site: http://caselaw.lp.findlaw.com/data/constitution/amendment06/ Read More